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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT

2tl, JUN -6 PH ~: 21

FRIENDS OF PINE STREET d/b / a
PINE STREET COALITION,
Plaintiff,
COMPLAINT FOR DECLARATORY
AND INJUNCTIVE RELIEF
(National Environmental Policy Act, 42
U.S.C. §§ 4321 et seq.; Administrative
Procedure Act, 5 U.S.C. §§ 701-706)

V.

THOMAS D. EVERETT, in his capacity as
Executive Director of the Federal Highway
Administration,
and
JOE FLYNN, in his capacity as Secretary
of the State of Vermont Agency of
Transportation,
and
MIRO WEINBURGER, in his capacity as
Mayor of the City of Burlington,
Defendants.

COMPLAINT
INTRODUCTION

1.

The Burlington MEGC M5000 (J), Southern Connector/Champlain Parkway

project (henceforth, "Champlain Parkway" or "project") is a proposed highway project
running from Route 7/1-189 to the intersection of Main Street and Pine Street. The

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proposed project bisects the City's vibrant South End communities and historic districts,
and would involve new roadway construction as well as dead-ending numerous local
through-streets, undergrounding a segment of Englesby Brook, and altering
signalization through one of Burlington's poorest and most ethnically diverse
neighborhoods. The Champlain Parkway, a project of the City of Burlington, Vermont
Agency of Transportation, and Federal Highway Administration, has been on the
drawing board since the 1960's, during which time both the project and the natural and
human communities through which it passes have significantly changed. The pace and
magnitude of those changes has increased in the last ten years since this project last
went through NEPA review.

2. The Pine Street Coalition herein challenges Defendants' decision, as expressed in
Defendants' May 2/May_6 FSEIS Reevaluation, to proceed with the Champlain
Parkway project on the basis of the ROD for the 2009 "Final Supplemental
Environmental Impact Statement" for project MEGC-M5000(1) (Southern
Connector/Champlain Parkway Project), rather than to prepare a Supplemental FSEIS
or new EIS, where that 2009 FSEIS is functionally obsolete and legally stale.

3. The 2009 FSEIS utilizes and relies upon data, policies, regulations and statutes, data,
methodology, and facts on the ground, relevant to NEPA concerns, which are no longer
accurate or applicable due to substantial changes which have occurred in the
intervening ten years. Those changes are detailed in a table below and include: changes

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in data and methodology (the 2009 FSEIS relies on the 2000 census data, for example,
and uses outdated traffic models); changes in land use patterns (with the South End
becoming a vibrant city hub); environmental changes including those related to climate
change (such as the changed designation of Englesby Brook from a coldwater to a
warmwater fish habitat, with resultant changes in stormwater management
prescriptions); statutory and regulatory changes (such as the new TMDLs for Lake
Champlain and Englesby Brook, and new stormwater and wetlands regulations); and
policy changes (such as FHWA's traffic safety highway design standards calling for
roundabouts, and new environmental justice guidance for NEPA consideration of
projects in qualifying communities like Burlington's Maple-King neighborhood).

4. Many of these changes have occurred on several interrelated and synergistic levels,
underscoring their substantiality. For example, since the 2009 FSEIS, policy and
regulatory changes have occurred that require far more robust outreach and review of
environmental justice concerns, while at the same time, current demographic data
demonstrates that minority and low income populations in the project corridor have
risen during this same time period. The project will remove habitat of the long-eared
bat, which was designated as a threatened or endangered species since the 2009 FSEIS.
Water quality concerns over the last ten years have intersected with Lake Champlain
pollution, flooding events like Tropical Storm Irene, and climate change information,
resulting in substantially overhauled floodplains, wetlands, and stormwater statutes,
regulations and policy in Vermont; at the same time, the TMDL management

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prescriptions for Lake Champlain and Englesby Brook have changed, part of the project
area is now designated by FEMA as a floodplain, and rare aquatic species have been
identified in habitat affected by the project. Furthermore, current data and trends
regarding traffic and demographics in the proposed project area demonstrate that the
Purpose and Need statement of the 2009 FSEIS and prior NEPA review documents for
this proposed project is inaccurate and unwarranted.

5. In addition to the stale EIS, the Pine Street Coalition herein asserts that with the
recent reintroduction of components of the original Champlain Parkway Project,
specifically the Railyard Enterprise Project, the Defendant's determination to proceed
without re-integrating the full project scope in a Supplemental or new EIS comprises
unlawful segmentation of project review and failure to consider cumulative impacts.

6. By failing to take into consideration these numerous changes in a public NEPA
process, the Defendants' continued reliance on the 2009 FSEIS does not fulfill the NEPA
mandate to take the requisite 'hard look' at the impacts of the proposed project on the
natural and human environment, and further violates regulatory requirements
regarding preparation of a Supplemental EIS.

JURISDICTION AND VENUE

7. This case arises under NEPA, 42 U.S.C. §§ 4321 et seq., and the APA, 5 U.S.C. §§ 701706. This Court has jurisdiction over this action pursuant to 28 U.S.C.

§

1331 (federal

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question), 28 U.S.C. § 1361 (mandamus), 28 U.S.C. §§ 2201-2202 (declaratory judgment),
and 5 U.S.C. §§ 701-706 (APA).

8. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because the proposed
route for the Champlain Parkway runs through the City of Burlington in the
State of Vermont. Therefore, a substantial part of the events or omissions giving rise to
the claim occurred in this district and a substantial part of the property that is the
subject of this action is situated in this district. In addition, Plaintiffs and two of the
Defend ants all reside in this district.

9. This Court has authority to issue the requested declaratory and injunctive relief
pursuant to 28 U.S.C. §§ 2201-2202, and 5 U.S.C. §§ 705-706. Injunctive relief is
authorized by Rule 65 of the Federal Rules of Civil Procedure.

10. The requested relief would redress the actual, concrete injuries to Plaintiffs caused
by the failure to comply with duties mandated by the APA, NEPA and its
implementing regulations.

11. The challenged agency actions are final and subject to judicial review pursuant to 5
U.S.C. §§ 702, 704, and 706.

PARTIES and STANDING

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12. The Friends of Pine Street, d/b / a the Pine Street Coalition, is a Vermont low profit
LLC citizens organization.

13. Members of the Friends of Pine Street d/b/ a Pine Street Coalition live throughout
Burlington including within one block of the Champlain Parkway right-of-way; its
members work, travel, socialize, attend business and community meetings and events,
and engage in recreation including walking, biking and observing wildlife within the
Champlain Parkway right-of-way and project corridor, and on properties abutting the
right-of-way and project corridor, including doing so on foot, bicycle and by public and
private transportation. Its mission statement is as follows:

The mission of the Pine Street Coalition is re-design of the Champlain Parkway
by re-opening a new EIS process in order to incorporate "best practices" of today
which include: (1) re-directing the "purpose and need" to meeting the 11eeds of the
South End neighborhood and away frorn facilitating tlze movement of cars to
downtmun: (2) reducing instead of increasing the number of roadway injuries to
residents and 1. 1isitors; (3) decreasing the em 1ironmental impacts, particularly in
regard to the stressed Englesby Brook; (4) pmuision of separate and equal facilities
for those ·who walk and bike along tlze corridor; alld (5) utilize modern
roundabouts to reduce injury rates to all users, cut global 1mrming emissions aJld
otlzer pollutants, reduce gasoline use, reduce delay for all users, ma1111ge speeds
a11d thereby reduce noise levels and add scenic quality.
14. The Pine Street Coalition brings this action on its own organizational behalf and on
behalf of its members, many of whom regularly enjoy and will continue to enjoy
recreational, and business activities regarding the use and effects of the Champlain
Parkway.

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15. The Pine Street Coalition and its members would be directly and personally affected
and suffer injury-in-fact should Defendants proceed with the Champlain Parkway
project without supplemental or revised NEPA review. Such harms include
demonstrably increased risk of injury as pedestrians and bicyclists traveling through
the Champlain Parkway corridor, where that highway design is obsolete and does not
comply with current statutes, regulations and guidelines regarding vehicular,
pedestrian and bicycle transportation; loss of recreational opportunities and
opportunities to interact with natural resources and view wildlife, due to the
undergrounding of Englesby Brook and harms to Englesby Brook, Potash Brook, their
related floodplains, wetlands, and Lake Champlain through failure to abide by current
wetland, stormwater and floodplain regulation; and diminishment of visual and
cultural values and characteristics of the community in which they live, work and
recreate along the Champlain Parkway corridor by Defendant's failure to engage in
required visual impact and environmental justice analysis.

16. Additionally, Plaintiffs would suffer the harm of living and interacting with the
project which had been developed in contravention of the procedural requirements of
NEPA, specifically the requirement to supplement and EIS when substantial changes
have occurred.

17. Plaintiffs have standing to assert their claims and, to the extent required, have
exhausted all applicable administrative remedies. The requested injunctive and

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declaratory relief would prevent or redress the injuries-in-fact to Plaintiff organization
and its members by ensuring compliance with NEPA and the AP A.

18. Defendant THOMAS D. EVERETT is Executive Director of the Federal Highway
Administration ("FHWA"), and is named solely in that official capacity. FHWA is the
responsible agency for the Champlain Parkway; in his official capacity, THOMAS D.
EVERETT or his subordinates are responsible for deciding whether to initiate and
proceed with the Champlain Parkway project, and must ensure that the FHWA and the
Champlain Parkway project comply with NEPA and the APA, among other federal and
state statutes and regulations.

19. Defendant JOE FLYNN is Secretary of the State of Vermont Agency of
Transportation ("VTrans"), and is named solely in that official capacity. VTrans is,
together with the City of Burlington, the project applicant, and, in cooperation with the
City of Burlington, is responsible for preparation of the NEPA environmental review
documents; in his official capacity, JOE FLYNN or his subordinates are responsible for
deciding whether to initiate and proceed with the Champlain Parkway project, and
must ensure that the VTrans and the Champlain Parkway project comply with NEPA
and the AP A, among other federal and state statutes and regulations.

20. Defendant MIRO WEINBURGER is Mayor and thus the chief executive officer of the
City of Burlington ("City"), a Vermont municipal corporation, and is named solely in

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that official capacity. The City is, together with VT rans, the project applicant, and
responsible for preparation of the NEPA environmental review documents; in his
official capacity, MIRO WEINBURGER or his subordinates are responsible for deciding
whether to initiate and proceed with the Champlain Parkway project, and must ensure
that the City and the Champlain Parkway project comply with NEPA and the APA,
among other federal and state statutes and regulations.

STATUTORY AND REGULATORY BACKGROUND
The National Environmental Policy Act {NEPA)

21. The National Environmental Policy Act (NEPA) is our "basic national charter for
protection of the environment." 40 C.F.R. § 1500.l(a). Congress enacted it in 1969 "to
promote efforts which will prevent or eliminate damage to the environment." 42 U.S.C.
§ 4321.

22. NEPA' s goal is to ensure "that environmental information is available to public
officials and citizens before decisions are made and before actions are taken" and to
"help public officials make decisions that are based on understanding of environmental
consequences, and take actions that protect, restore, and enhance the environment." 40
C.F.R. § 1500.l(b), (c). When the government acts in violation of its NEPA obligations,

courts may enjoin the project construction until the parties comply with NEPA.

23. The Council on Environmental Quality (CEQ) is an agency created by NEPA and
housed within the Executive Office of the President. 42 U.S.C. § 4342. CEQ has

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promulgated general regulations implementing NEPA. 40 C.F.R. §§ 1500-1508. The State
Department has adopted NEPA regulations that incorporate and supplement the CEQ
regulations. See 22 C.F.R. §§ 161.1-161.12.

24. NEPA requires all federal agencies to prepare a "detailed statement" for any "major
Federal actions significantly affecting the quality of the human environment." 42 U.S.C.
§ 4332(2)(C). This statement-commonly known as an environmental impact statement

(EIS)-must describe the environmental impacts of the proposed action. Id.§
4332(2)(C)(i), (ii). The EIS is an "action-forcing device" that ensures NEPA's goals "are

infused into the ongoing programs and actions" of the federal government. 40 C.F.R. §
1502.1.

25. An EIS must include a "full and fair discussion" of the "direct," "indirect," and
"cumulative" effects of the action, as well as a discussion of "[m]eans to mitigate
adv.erse environmental impacts." Id.§§ 1502.1, 1502.16(a), (b) & (h), 1508.25(c). Direct
impacts are "caused by the action and occur at the same time and place." Id.§ 1508.8(a).
Indirect impacts are "caused by the action and are later in time or farther removed in
distance, but are still reasonably foreseeable." Id.§ 1508.8(b). Cumulative impacts are
the "incremental impact[s] of the action when added to other past, present, and
reasonably foreseeable future actions regardless of what agency (Federal or nonFederal) or person undertakes such other actions." Id. § 1508. 7. Cumulative impacts

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can result from individually minor but collectively significant actions taking place over

a period of time." Id.

II

26. Agencies must include analysis of any connected" actions in the same EIS. Id. §
11

1508.25(a)(l). Connected actions are those that automatically trigger other actions

which may require environmental impact statements," [c]annot or will not proceed
11

11

unless other actions are taken previously or simultaneously," or [a]re interdependent
parts of a larger action and depend on the larger action for their justification." Id.

27. The EIS must also inform federal agency decision-makers and the public of the
11

II

reasonable alternatives" that would avoid or minimize adverse impacts or enhance

the quality of the human environment." Id.§ 1502.1. This analysis of alternatives is the
11

11

heart" of the EIS-i.e., where the agency should present the environmental impacts of

the proposal and the alternatives in comparative form, thus sharply defining the issues
and providing a clear basis for choice among options." Id.§ 1502.14. The EIS must
11

[r]igorously explore and objectively evaluate all reasonable alternatives," including the
11

alternative of no action." Id. § 1502.14(a), (d). 37.

28. An EIS must also specify the underlying purpose and need to which the agency is
II

responding" in proposing the action the EIS describes and the alternatives the EIS
identifies. Id. § 1502.13.

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29. Any federal agency that is considering approving an activity that may significantly
affect the environment must first prepare a draft EIS. The agency must make diligent
efforts to involve the public in preparing and implementing NEPA review. Id. § 1506.6.
The agency must solicit comments from the public, any other federal agency that has
jurisdiction or special expertise on the subject matter, and Indian Tribes when the
project may affect a reservation. See Id.§§ 1502.9(a), 1503.l(a). The agency must then
prepare a final EIS based on its consideration of those comments. Id.§§ 1502.9(b),
1503.4(a). The agency must respond to comments by either making changes to the EIS or

explaining why the comments do not warrant further agency response. Id.§§ 1502.9(b),
1503.4(a). At the conclusion of the EIS process, an agency must issue a record of decision

pursuant to 40 C.F.R. § 1505.2.

30. If, after the EIS is prepared, the agency makes substantial changes in the proposed
action that are relevant to environmental concerns, or there are significant new
circumstances or information relevant to environmental concerns and bearing on the
proposed action or its impacts, the agency must prepare a supplemental EIS. Id. §
1502.9(c)(1). A supplemental EIS must be prepared and distributed in the same way as

the draft EIS and final EIS. Id.§ 1502.9(c)(4).

31. The CEQ has established a 'rule of thumb' of five years for an EIS to be 'stale' and
require a supplemental EIS. In its Forty Most Asked Questions Concerning CEQ's NEPA
Regulations, 10836 Federal Register Vol. 46 No. 55, to question #32, "Under what

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circumstances do old EISs have to be supplemented before taking action on a
proposal?" the CEQ responds: "As a rule of thumb, if the proposal has not yet been
implemented ... EISs that are more than five years old should be carefully reexamined to
determine if the criteria in Section 1502.9 compel preparation of an EIS supplement. If
an agency has made a substantial change in a proposed action that is relevant to
environmental concerns, or if there are significant new circumstances or information
relevant to environmental concerns and bearing on the proposed action or its impacts, a
supplemental EIS must be prepared for an old EIS so that the agency has the best
possible information to make any necessary substantive changes in its decision
regarding the proposal."

32. FHWA NEPA implementation regulations require a written re-evaluation to be done
for the purposes of determining whether a supplemental EIS or new EIS is required
where a final EIS is not issued within three years of the issuance of a draft EIS, 23 CFR
§771.129(a), or where major steps to advance the project have not occurred within three

years of issuance of the final EIS, 23 CFR §771.129(b). After approval of an ROD, the
applicant is required to consult with the agency to determine if the final NEPA
document remains valid prior to proceeding with major steps in the development of the
project. 23 CFR §771.129(c).

33. FHW A NEPA implementation regulations mandate that a supplemental EIS shall be
prepared when changes to the proposed action would result in significant impacts that

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were not evaluated in the EIS, 23 CFR §771.130(a)(l); or where new information or
circumstances relevant to environmental concerns and bearing on the proposed action
or its impacts would result in significant environmental impacts not evaluated in the
EIS. 23 CFR §771.130(a)(2). When the agency is uncertain of the significance of new
impacts, the applicant is required to develop appropriate environmental studies or an
EA, from which the agency will determine whether to prepare a supplemental EIS. 23
CFR §771.130(b)(3).

The Administrative Procedure Act (APA): Standard of Review

34. The Administrative Procedure Act ("APA") governs judicial review of federal
agencies' and officials' compliance with NEPA. Under the AP A, courts "shall ... hold
unlawful and set aside agency action, findings, and conclusions found to be .. .
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5
U.S.C. §706(2), and "compel agency action unlawfully withheld or unreasonably

delayed," Id. §706(1), or made " without observance of procedure required by law." 5
U.S.C.A. §§ 706(2)(A), (D), Senville v. Peters, 327 F. Supp. 2d 335,344 (D. Vt. 2004)

35. Although a "'court may not substitute its judgment for that of the agency,' an agency
decision may be set aside where the agency 'has relied on factors which Congress has
not intended it to consider, entirely failed to consider an important part of the problem,
offered an explanation for its decision that runs counter to the evidence before the

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agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise."' Senville v. Peters, 327 F. Supp. 2d 335,344 (D. Vt. 2004)

36. Review of an agency's decision not to supplement an EIS is controlled by the
arbitrary and capricious standard of §706(2)(A). In the Second Circuit, this review has
two steps. First, the court considers "whether the agency took a 'hard look' at the
possible effects of the proposed action. 11 Second, if the court is satisfied that the agency
took a hard look, the court must determine "whether the agency1s decision was arbitrary
or capricious." Id. Courts will not automatically defer to the agency "without carefully
reviewing the record and satisfying themselves that the agency has made a reasoned
decision based on its evaluation of the significance or lack of significance of the new
information". Senville v. Peters, 327 F. Supp. 2d 335,344 (D. Vt. 2004)

FACTS

37. The Champlain Parkway project is a proposed transportation project in Burlington,
Vermont. Planning for this project began in 1965.

38. The Champlain Parkway project, if built, would reassign north-south vehicular
access between I-189/Route ?-Shelburne Road and Lakeside Avenue to a newly
constructed limited-access roadway, while dead-ending numerous local streets
including the southerly end of the present predominant north-south route of Pine
Street. Once the newly constructed roadway reached Lakeside, the nominal Champlain

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Parkway would then comprise modifications in the roadway and signalization for
Lakeside Avenue and Pine Street to Main Street. In other words, the southerly portion
of the project will move traffic over one block to a new roadway until it reaches
Lakeside, then will return all traffic to the presently existing City streets of Lakeside and
Pine Street.

39. In 1979, a Final Environmental Impact Statement (FEIS) was approved and a
Selected Alternative chosen for the Champlain Parkway. That project began where I-189
meets Shelburne Street (U.S. Route 7), north and west to the intersection of Battery and
Main Streets, in the City Center District, and comprised three sections: C-1, C-2 and C-8.
At that time, '.FHWA's NEPA regulations did not require a Record of Decision ("ROD").

40. One section of the project has been built but remains unopened to vehicles (the C-1
section). A new bicycle path adjacent to the C-1 Section is in use, although not
completed. The C-2 Section was previously designed to a four-lane cross-section. The C8 Section runs through a hazardous waste Superfund Site which was identified after the
1979 FEIS. This is known as the Pine Street Barge Canal Site. The Pine Street Barge
Canal Site was designated a Superfund Site by the US Environmental Protection
Agency (EPA) after the Champlain Parkway project Selected Alternative had been
approved. This finding delayed project construction significantly. VTrans decided the
project should go forward anyway.

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41. In March, 2002, the City decided to modify the project. Specifically, the roadway
section would be reduced from a four-lane roadway to a two-lane roadway. The City
and VTrans also agreed to formally abandon the C-8 Section through the Pine Street
Barge Canal Superfund Site, and designate the C-1 Section, C-2 Section and C-6 Section
as the permanent alignment for the Champlain Parkway.

42. In 2003, the City, Vtrans and FHWA initiated a new Supplemental FSEIS addressing
this modified project.

43. In 2005, VTrans recommended further modifications, reducing the project to
Sections C-1 and C-2, with the C-6 section transformed to comprise modifications to the
existing City streets of Lakeside and Pine Street.

44. In 2006, the City, Vtrans and FHWA circulated a Draft Supplemental EIS. A public
hearing was held during the review period for the 2006 DSEIS. This was the last public
hearing held on the Champlain Parkway relative to the NEPA process. Members of the
Pine Street Coalition attended and commented at this public hearing.

45. The Final Supplemental Environmental Impact Statement ("FSEIS") was distributed
for public and agency review on September 24, 2009. In January, 2010, the Federal
Highway Administration identified the Selected Alternative for the Champlain
Parkway with the issuance of the Record of Decision.

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46. In April 2018, the Pine Street Coalition delivered to the Defendants a demand letter
packet, detailing through an extensive memoranda a wide array of statutory,
regulatory, and policy changes that had occurred relative to the Champlain Parkway
project and its impacts since the 2009 FSEIS, including the 'sea change' in federal and
state highway law and policy to emphasize safety (a word which appears only ten times
in the FSEIS, and each of those times only in passing rather than as a focus of
discussion), non-motorized travel, and environmental justice. The packet further
informed Defendants, through a detailed photographic inventory, of the extensive
changes on the ground which had occurred in the Champlain Parkway corridor since
the 2009 FSEIS. Noting that public comment had not been solicited since 2006, and that
the affected community had long since changed dramatically, the Pine Street Coalition
demanded that Defendants engage in fresh NEPA review to ensure that agency
decision-making regarding the Champlain Parkway was informed by current
information, public comments from the present affected community, and review
accounting for present laws, policies, data and methodologies.

47. Defendants did not provide any substantive response to the Pine Street Coalition's
communication. Instead, they stated that these comments would be considered during
internal re-evaluation.

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48. On May 7, 2019, Defendant FHWA provided to Pine Street Coalition a copy of a
March 2019 re-evaluation document prepared by a consulting firm for FHWA, Vtrans
and the City of Burlington. It was accompanied by a cover letter from Vtrans to FHW A
seeking FHW A concurrence, dated May 2, 2019. FHWA signed off on the reevaluation
on May 6, 2019.

49. The reevaluation document does not make any mention whatsoever of the demand
letter packet or information provided to Defendants by the Pine Street Coalition, and
does not respond in any way to effectively all of the Pine Street Coalition's concerns and
documentation of changes since the 2009 FSEIS.

50. The reevaluation was conducted with no public notice, public outreach or public
comment (other than the unsolicited packet presented by Pine Street Coalition). The
reevaluation document was not publicly published.

51. The reevaluation acknowledges some changes that have occurred in the project
design as well as a few on-the-ground and regulatory changes that have occurred since
2009, but makes no mention whatsoever of numerous other statutory, regulatory,
policy, data, methodology, and on-the-ground changes. The reevaluation also
mischaracterizes several of the changes it addresses.

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52. The Table of Significant Changes, appended to this Complaint and incorporated
herein by reference, sets out substantial changes which have occurred since 2009, and
includes indication of which of these changes were mentioned, ignored, or
mischaracterized in the reevaluation document. These include changes to statutes,
regulations, policies, data, methodology, and changes on the ground.

CAUSE OF ACTION

COUNT I:
VIOLATION OF NEPA AND IMPLEMENTING REGULATIONS AND POLICIES
AND THE APA: FAILURE TO PREPARE SUPPLEMENTAL EIS

53. Plaintiffs repeat and reallege paragraphs 1 through 52 above as though more fully
recounted herein.

54. The contents of the Table of Significant Changes appended to and incorporated into
this Complaint comprise changes to the proposed action which would result in
significant impacts that were not evaluated in the EIS, 23 CFR §771.130(a)(1); or
alternatively comprise new information or circumstances relevant to environmental
concerns and bearing on the proposed action or its impacts that would result in
significant environmental impacts not evaluated in the EIS. 23 CFR §771.130(a)(2).

55. Defendants have violated NEPA by failing to prepare a supplemental EIS where
significant changes have occurred related to the project and affecting environmental
concerns since issuance of the FSEIS in 2009, rendering that FSEIS stale. Defendants'

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decision to proceed with the Champlain Parkway project without preparing a
supplemental EIS is arbitrary and capricious, an abuse of discretion, and contrary to
law, or made without observance of procedure required by law in violation of the APA.

56. Unless and until Defendants prepare NEPA-compliant documents and provide for
public comment on those documents, Plaintiff and its members will be irreparably
harmed. The relief Plaintiff seeks will redress these injuries by requiring Defendants to
comply with NEPA and the AP A.

COUNT II:
VIOLATION OF NEPA AND IMPLEMENTING REGULATIONS AND POLICIES
AND THE APA: FAILURE TO TAKE A "HARD LOOK" AND FAILURE TO MAKE
A REASONED DECISION

57. Plaintiffs repeat and reallege paragraphs 1 through 56 above as though more fully
recounted herein.

58. NEPA and its regulations require that federal agencies take a hard look at the
potential environmental impacts of a proposed project.

59. In failing to engage in additional NEPA process, including engaging public
comment, in light of the extensive changes in statutes, regulations, policies and
information since 2009, as described in the contents of the Table of Significant Changes
appended to and into this Complaint, including but not limited to failure to apply or
consider the impacts of Defendants' own new regulations, guidelines and policies

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pertaining to transportation safety, Defendants have failed to take a hard look at the
environmental consequences of the proposed action.

60. Defendants have violated NEPA by failing to take a hard look at the environmental
consequences, impacts of significant changes which have occurred related to the project
and affecting environmental concerns, without considering substantial new information
which has become available since issuance of the FSEIS in 2009 including substantial
changes to statutes, regulations, guidelines and policies, rendering that FSEIS stale.
Defendants' decision to proceed with the Champlain Parkway project without taking a
hard look at the impact of changes and newly available information is arbitrary and
capricious, an abuse of discretion, and contrary to law, or made without observance of
procedure required by law in violation of the AP A. Defendants have also failed to
make a reasoned decision in light of substantial new information affecting or affected
by the proposed project; failure to make a reasoned decision is arbitrary and capricious
an abuse of discretion and otherwise contrary to law, in violation of the AP A.

61. Unless and until Defendants prepare NEPA-compliant documents and provide for
public comment on those documents, Plaintiff and its members will be irreparably
harmed. The relief Plaintiff seeks will redress these injuries by requiring Defendants to
comply with NEPA and the AP A.

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COUNT III:
VIOLATION OF NEPA AND IMPLEMENTING REGULATIONS AND POLICIES
AND THE APA: FAILURE TO ENGAGE IN ENVIRONMENTAL JUSTICE
REQUIRED ACTIONS

62. Plaintiffs repeat and reallege paragraphs 1 through 61 above as though more fully
recounted herein.

63. As referenced in the Table of Significant Changes appended to and incorporated
into this Complaint, in implementation of Executive Order 12898, "Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income Populations",
high-level cross-agency changes have been developed since 2009, including within
USDOT, the parent agency of FHW A.

64. The most recent USDOT Environmental Justice order, 5610.2(a) was published in
May of 2012. This Order states, "This will be done by fully considering environmental
justice principles throughout planning and decision-making processes in the
development of programs, policies, and activities, using the principles of the National
Environmental Policy Act of 1969 (NEPA), Title VI of the Civil Rights Act of 1964 (Title
VI), the Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1970, as amended, (URA), the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (Public Law 109-59; SAFETEA-LU) and other USDOT
statutes, regulations and guidance that address or affect infrastructure planning and
decision-making; social, economic, or environmental matters; public health; and public

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involvement." 1 "The updated Order maintains the original Order's general framework
and procedures and U.S. DOT's commitment to promoting the principles of
environmental justice in all USDOT programs, policies, and activities." 2

65. There has been extensive procedural development throughout the USDOT order
guidance documents. In 2015, FHWA published its Environmental Justice Reference
Guide intended to encompass all orders and create a place for local authorities to go to
ensure compliance with environmental justice goals. 3 This guidance includes the three
major principles of environmental justice which are," (1) To avoid, minimize, or
mitigate disproportionately high and adverse human health and environmental effects,
including social and economic effects, on minority and low-income populations. (2) To
ensure the full and fair participation by all potentially affected communities in the
transportation decision making process. (3) To prevent the denial of, reduction in, or
significant delay in the receipt of benefits by minority and low-income populations."
This reference guide puts emphasis on public involvement especially in vulnerable
areas. This memo also includes an overview of the interceding requirements of Title VI,
NEPA, and Executive Order 12898. It then goes on to discuss techniques for crews on
the ground to determine areas which will require environmental justice analysis.

1
2

3

https://www .t11\va.dot.gov/environment/environmental justiceiej at dot/orders/order 56 l 02a/

https://www.fuwa.dot.gov/environment/environmental iustice/ej at dot/orders/order 56102a/
https: 1 w\vw. fhwa.dot.gov!environment/environmental iustice/publications/reforence guide 2015/lhwahep l 5035 ..

llili'

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66. The next section of the reference guide goes on to discuss more details on how to
relate environmental justice to highway safety and specifics, requiring that FHWA
officials "relate Environmental Justice principles to the phases of transportation project
development: planning, environmental review, design, right-of-way (ROW),
construction, and maintenance and operations. This includes a discussion of public
involvement, another important overarching activity." 4

67. The 2015 FHWA Environmental Reference Guide mandates that, in areas vulnerable
to environmental justice concerns, the Agency is required to affirmatively engage in
public outreach so that minority and low-income community members are allowed a
voice. Defendants here have not engaged in that affirmative outreach in the MapleKing neighborhood to be bisected by the project, or taken other steps required by
FHWA's own guidance documents pertaining to Environmental Justice.

68. Defendants have violated NEPA by failing to fulfill environmental justice mandates
that have been adopted since issuance of the FSEIS in 2009. Defendants' decision to
proceed with the Champlain Parkway project without compliance with new
environmental justice mandates is arbitrary and capricious, an abuse of discretion, and
contrary to law, or made without observance of procedure required by law in violation
of the APA.

4

https://www.thwa.dot.gov/environment/environmentaljustice/publications/reference_guide_2015/thwahep 15035 ..
pdf

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69. Unless and until Defendants prepare NEPA-compliant documents and provide for
public comment on those documents, Plaintiff and its members will be irreparably
harmed. The relief Plaintiff seeks will redress these injuries by requiring Defendants to
comply with NEPA and the APA.

COUNT IV: VIOLATION OF NEPA AND IMPLEMENTING REGULATIONS AND
POLICIES AND THE APA: SEGMENTATION and FAILURE TO CONSIDER
CUMULATIVE IMPACTS

70. Plaintiffs repeat and reallege paragraphs 1 through 69 above as though more fully
recounted herein.

71. As referenced in the Table of Significant Changes appended to and incorporated
into this Complaint, at least one additional Burlington transportation project -- the
Rail yard Enterprise Project-- and several changes to the proposed Champlain Parkway
project, including a new construction access using Electric Drive, have been introduced
since 2009. These changes have not been subjected to the NEPA process of review, and
Defendants have failed to consider the cumulative impacts of these changes.

72. Defendants have violated NEPA by failing to prepare a supplemental EIS including
cumulative impacts where an integrally related project has been re-introduced since
issuance of the FSEIS in 2009, comprising and unlawful segmentation of the project; and
have further violated NEPA by failing to consider the cumulative impacts of both the

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re-introduced Railyard Enterprise Project and other physical changes to the project
including but not limited to the new construction access location. Defendants' decision
to proceed with the Champlain Parkway project without preparing a supplemental EIS
is arbitrary and capricious, an abuse of discretion, and contrary to law, or made without
observance of procedure required by law in violation of the AP A.

73. Unless and until Defendants prepare NEPA-compliant documents and provide for
public comment on those documents, Plaintiff and its members will be irreparably
harmed. The relief Plaintiff seeks will redress these injuries by requiring Defendants to
comply with NEPA and the AP A.

REQUEST FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court:

A. Declare that Defendants' actions violated NEPA, its implementing regulations and
policies, by failing to prepare a Supplemental EIS where the agency has made
substantial changes in the proposed action that are relevant to environmental concerns,
and/ or there are significant new circumstances or information relevant to
environmental concerns and bearing on the proposed action or its impacts; and,

B. Declare that Defendants' actions violated NEPA, its implementing regulations and
policies, where the responsible Agency failed to take a 'hard look' at the environmental

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impacts of the proposed project, including but not limited to by Defendants' failure to
consider the impacts of the proposed project in light of significant changes in statutes,
regulations, policies, guidelines, data and methodology bearing on the project and
relevant to the project's environmental impacts; and,

C. Declare that Defendants' actions violated NEPA, its implementation regulations and

policies, where the responsible Agency failed to comply with environmental justice
mandates relative to the NEPA process contained in its own regulations and guidance
documents; and,

D. Declare that Defendants' actions violated NEPA, its implementation regulations and
polices, where Defendants unlawfully segmented its review by failing to include
cumulative impacts of other related projects, specifically the Railyard Enterprise Project;
and,

E. Declare that Defendants' actions were arbitrary, capricious and otherwise in violation
of law or made without observance of procedure required by law, in violation of the
APA; and

F. Vacate and set aside Defendants' actions; and,

G. Issue an injunction requiring Defendants to comply with NEPA and the APA; and,

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H. Issue an injunction enjoining any activity in furtherance of construction of the
Champlain Connector until Defendants have demonstrated compliance with NEPA and
the AP A; and,

I. Retain jurisdiction over this matter until Defendants fully remedy the violations of

law described herein; and,

J. Award Plaintiffs their fees, costs, and other expenses as provided by applicable law;
and

K. Issue such other relief as the Court may deem just, proper, and equitable.

DATED: 6 June 2019
Ci
llen
, sq.
ill Attorney PLLC
144 Mead Lane
Middlebury VT 05753
802-989-6906
lawyerhill@yahoo.com VT Z ~SI

Attorney for Plaintiffs