United States District Court, E.D. Arkansas, Western Division
CITY OF DARDANELLE and YELL COUNTY WILDLIFE FEDERATION, INC. PLAINTIFFS
DEPARTMENT OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; ARKANSAS STATE HIGHWAY & TRANSPORTATION DEPARTMENT; RIVER VALLEY REGIONAL INTERMODAL AUTHORITY; and DEPARTMENT OF DEFENSE, United States Army Corps of Engineers, Little Rock District DEFENDANTS
Marshall Jr. United States District Judge.
stumble at the threshold prevents this Court from addressing,
at this point, the deep issues in the complaint by Dardanelle
and the Yell County Wildlife Federation about the planned
intermodal facility in the Russellville Bottoms along the
the unopposed motion to supplement the administrative record,
No. 162, is granted. The Court appreciates the Defendants7
effort to locate the contract between the River Valley
Regional Intermodal Facilities Authority and Parsons
Infrastructure and Technology Group and bring it into the
record. This agreement, though, confirms a problem rather
than eliminating one.
when a contractor is used to prepare an environmental impact
statement, this non-governmental actor must
"execute a disclosure statement prepared by the
lead agency . . . specifying that [the contractor has] no
financial or other interest in the outcome of the
project/' 40 C.F.R. § 1506.5(c).* This statement is
in service of the government's regulatory duty to avoid
conflicts of interest as it fulfills its National
Environmental Protection Act obligations. Ibid. In
2004, when Parsons was retained, neither the Federal Highway
Administration nor the Corps of Engineers prepared such a
statement for Parsons. The contractor didn't prepare one
either. The Authority and Parsons made the deal about who
would draft the environmental impact statement. The Highway
Administration had, by then, indicated that it would not move
forward without this full environmental study. And Judge
Billy Roy Wilson had preliminarily enjoined the Corps from
doing so. All this was because the slack water harbor was
only a part of the intermodal facility project, which aimed
to bring together river, rail, and highway-related
facilities. No. 4:03-cv-176-BRW, Order No 8.
Authority/Parsons contract appears to be a form agreement for
Arkansas State Highway and Transportation Department projects
that will be funded, at least in part, by federal dollars.
FHWA 13476-13551. The contract contains certifications.
Parsons certified three things: it hadn't paid anybody to
get the contract; it hadn't promised (as a condition for
getting the contract) to hire anybody to do some of the work;
and it hadn't made, or promised to make, any contribution
or donation to secure the contract. FHWA 13531. These
certifications echoed a covenant in the agreement. FHWA
13493. In the second certification, the Authority confirmed
that Parsons hadn't been required to hire anybody, or pay
anybody, to get the contract. FHWA 13532.
record is, at this point, unclear about who prepared the
Authority/Parsons contract and its appended certifications.
Put that issue to one side. What is clear is that these
certifications don't suffice under 40 C.F.R. §
1506.5(c). Parsons didn't say that it had no financial
interest in whether this intermodal facility got approved.
And Parsons didn't say that it had no other interest in
the project's outcome. The absence of a compliant
disclosure statement violated NEPA's implementing
the Court is unpersuaded by the Defendants' arguments for
overlooking this gap in the record.
issue was not waived. The law's requirement is clear. No
citizen need have spoken to preserve the right to complain
about this kind of noncompliance. Department of
Transportation v. Public Citizen, 541 U.S. 752, 764-65
(2004). To their credit, the Highway Administration, and
later the Corps, caught this gap during the last stages of
their reviews. FHWA 8771; COE 1052. Inquiries were made. The
Arkansas State Highway and Transportation Department assured
the Highway Administration that it had the proper disclosure
statement on file. FHWA 8777. All it had, though, was the
no-bribes certifications. The inquiries had been prompted in
part by a 2006 public comment about possible conflicts of
interest. FHWA 5147-5151. The comment was not directed at
Parsons, but it cited 40 C.F.R. § 1506.5, and spoke
generally about firms and people who might "gain from
their involvement in the location, study, construction[, ] or
need of a proposed project." FHWA 5151. And the
supplemental environmental impact statement's response to
this comment was all about Parsons. FHWA 9481. No waiver
Defendants fall back to harmless error. They point out that
these same NEPA-implementing regulations say a "trivial
violation" doesn't create an independent cause of
action under the statute. 40 C.F.R. § 1500.3. This is
surely right. Defendants also rely on precedent from other
circuits holding that this kind of violation shouldn't
invalidate an environmental impact statement. Citizens
Against Burlington, Inc. v. Busey IV, 938 F.2d
190 (D.C. Cir. 1991); Utahns for Better Transportation v.
Department of Transportation, 305 F.3d 1152 (10th Cir.
2002). This Court agrees that the "objectivity and
integrity" of the NEPA process is the real issue.
Citizens Against Burlington, 938 F.2d at 202. Here,
Dardanelle and the Yell County Wildlife Federation have made
detailed arguments from the administrative record that
Parsons's work was clouded by a predisposition toward the
Russellville Bottoms site first proposed and eventually
approved. The Court hasn't made up its mind about the
merits. But a fair evaluation of Parsons's work requires
consideration of what, if anything, Parsons stood to gain
from this project's outcome. That fact is material on
whether Parsons was objective or biased. And it bears
generally on whether this NEPA process had integrity or not.
In this case, the missing statement is not a trivial matter.
the Highway Administration must therefore promptly get a
disclosure statement from Parsons about the River Valley
Intermodal Facilities Project that complies with 40 C.F.R.
§ 1506.5(c). If the Highway Administration finds that a
conflict of interest existed, then it must promptly decide
what responding measures to take.
supplemental administrative record limited to these issues
due by 6 April 2018. Simultaneous ten-page responding briefs
due fourteen calendar days after this record is filed. The
Court will consider the merits promptly thereafter.