No. 14-657

IN THE

Supreme Court of the United States

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

A(800) 274-3321 • (800) 359-6859

AMICUS CURIAE BRIEF OF THE HISPANIC BAR ASSOCIATION OF MICHIGAN IN

SUPPORT OF PETITIONER

257187

DETROIT INTERNATIONAL BRIDGE COMPANY,

Petitioner,

v.

ADMINISTRATOR OF THE FEDERAL HIGHWAY ADMINISTRATION, et al.,

Respondents.

LAWRENCE T. GARCIA

Counsel of RecordCARSON J. TUCKER

GARCIA LAW GROUP, PLLCThe Fisher Building3011 West Grand Boulevard, Suite 2500Detroit, MI 48202(877) 643-6255lgarcia@garcialawgrouppllc.com

Attorneys for Amicus Curiae

i

QUESTION PRESENTED

Whether a United States agency may disproportionately burden poor, minority communities of Americans either in deference to Canadian interests or in deference to more powerful domestic constituencies, in direct violation of the principles of Environmental Justice?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

ABOUT AMICUS CURIAE . . . . . . . . . . . . . . . . . . . . . . .1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . .2

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1a

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Kentucky v. Alexander, 655 F.2d 714 (6th Cir 1981) . . . . . . . . . . . . . . . . . . . . .11

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983). . . . . . . . . . . . . . . . . . . . . . . . . .12, 13

Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989). . . . . . . . . . . . . . . . . . . . . . . . . 12-13

Save Our Cumberland Mountains v. Kempthorne, 453 F.3d 334 (6th Cir 2006). . . . . . . . . . . . . . . . . . . . .11

Sierra Club v. Envt’l Prot. Agency, 252 F.3d 943 (8th Circ. 2001) . . . . . . . . . . . . . . . . . . .12

Statutes and Other Authorities

5 U.S.C. § 706(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Department of Transportation Updated Environmental Justice Order 5610.2(a)(2012) . . . . . . . . . . . . . . . . . . . .9

Environmental Justice Order 6640.23A. . . . . . . . . . . . 8-9

Evaluating Environmental Justice Under the National Environmental Policy Act, by Ronald Bass; Environ Impact Asses Rev. 1998:18:83-92. . . . . .3

Executive Order No. 12,898 . . . . . . . . . . . . . . . . . . . . . . . .8

1

ABOUT AMICUS CURIAE

The Hispanic Bar Association of Michigan (“HBAM”) is an organization of dozens of lawyers and legal paraprofessionals established in 1991. The organization aims to elevate the standard of integrity, honor, and courtesy in the legal profession in the State of Michigan, and the HBAM seeks to serve Hispanics in Michigan.1

1. No counsel for a party authored this brief in whole or in part and no such counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No one other than the amicus curiae, or its counsel, made a monetary contribution intended to fund such preparation or submission. On December 16, 2014, Amicus Curiae provided timely notice of its intent to fi le a brief to Petitioner and Respondent. Petitioner and Respondent provided consent.

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SUMMARY OF ARGUMENT

The area of Detroit known as Southwest Detroit (“Southwest”) is the heart of the Latino Community in the State of Michigan. It is the area of greatest population density for Michigan’s Hispanics. It is where the majority of immigrant families from Central and South America fi rst put down roots in Michigan. The neighborhood in Southwest is saturated with Latino culture, with annual festivals and schools that acknowledge the history of Hispanic Americans, as well as ethnic restaurants, bakeries and markets. The fl avor of Southwest is distinctly Hispanic, and many people call the area “Mexicantown” or “Latinotown.”

Southwest is poor and has been mostly inhabited by immigrant families for generations. The area of Delray is a subdivision of Southwest. See Fig 1. Of the many different sites originally designated as possible locations for the Detroit River International Crossing (“DRIC”), the sites in Southwest were the only locations belonging to a poor, mostly Latino population. As the Federal Highway Administration’s leader put it,

I hope in our discussions yesterday I did not mislead you into thinking that the entire community in Delray is well maintained with tidy houses and white picket fences and little kids happily playing in the yards. If I did, I’m sorry, because that is not Delray. Some parts of Delray are pretty rough where they burn churches because they think its [sic] fun.DRIC116562.

3

The disdain for the poorer, Latino neighborhood of Delray is plain from this and many other statements in the record; Delray was seen as an easy target for exploitation, because it is neither wealthy nor white.

In the case below, the government prematurely eliminated a large number of alternatives that would have placed the DRIC in areas not as poor and not as Latino as Delray. Human nature and prejudice being what they are, sewage treatment lagoons, prisons and toxic waste dumps are normally placed in areas where they will not damage the property values of wealthier, majority populations. However, since the 1960’s and the advent of Environmental Justice (“EJ”), our country has professed a desire to resist the usual tendency to exploit weaker, minority neighborhoods in favor of wealthier, whiter ones.2 In a nation where “all men are created equal,” decisions

2. Environmental Justice is the pursuit of, “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws.” Evaluating Environmental Justice Under the National Environmental Policy Act, by Ronald Bass; Environ Impact Asses Rev. 1998:18:83-92. An environmental justice analysis is essential to NEPA, because the Act,

arose out of various academic and government studies conducted during [the late 1980s and early 1990s], which revealed that certain types of government and corporate environmental decisions have adversely affected low-income and minority populations to a greater extent than the general population. Id.

It has long been recognized that environmentally dangerous activities are more commonly conducted in low-income and minority population communities, and these communities are particularly vulnerable to this kind of abuse. Id.

4

about projects like the DRIC should follow the doctrine of Environmental Justice, and the selection of a “Preferred Alternative” should not be based on what neighboring countries want or on prejudice against poor Latinos…

If a government agency can defer its responsibility for selecting a reasonable site to Canada, then it should be required to apply the principles of Environmental Justice to the sites involved on both sides of the border. In the case below, Environmental Justice concerns were circumvented and were never a serious consideration in the analysis done in the United States or in Canada.

ARGUMENT

When they started work on the DRIC project in 2004, the Federal Highway Administration (“FHWA”), along with its local and national administrators, selected 15 potential crossing sites for study (X-1 to X-15). However, before any substantive analysis could be done, most of the alternatives were eliminated from further consideration. Sites X-1 through X-9, all of which were located in predominantly white, more affl uent communities, were eliminated early in the chronology, and evidence in the Administrative Record (“AR”) reveals that these eliminations were made for political reasons – either in deference to Canadian interests or in deference to more powerful political constituencies in the United States. See below.

When word of a new bridge project spread through the various communities located on the banks of the Detroit River, a number of local stakeholders began screaming “not in my back yard!” In September 2005, Michigan State

5

Senator Raymond Basham sought to quell the uproar within his constituency and publicly stated, “[t]here is not going to be a bridge (to Canada) in the Grosse Ile, Trenton, Wyandotte, Riverview area (i.e. the areas identifi ed as sites X-1 through X-9)… It will be ruled out offi cially in November.”3 In the following month, then-Michigan Governor, Jennifer Granholm, also publicly announced that the “Downriver” (non-minority neighborhoods) in areas corresponding to sites X-1 through X-9 had been eliminated from consideration.4 These announcements from politicians concerned about voters in more affl uent, majority communities located along the banks of the Detroit river predated the FHWA’s Draft Environmental Impact Study (“DEIS”) by more than two years; the DEIS was not published until February 2008.

These prescient pronouncements reveal that the outcome of the process of analysis was known before the process was begun, even though such a predetermination is contrary to law. An email written in October 2005 from FHWA’s administrator, James Kirschensteiner, to a high-ranking Michigan Department of Transportation offi cial refl ects a guilty conscience and concern over potential scandal about rigging the system:

There is some damage control needed here I believe due to the timing of the Governor’s announcement and the boat trip and other activities associated with the advisory groups. If they feel the process is a shame [sic] and only there to appease or or [sic] to white wash

3. DRIC112663.

4. DRIC121277.

6

decisions made by the Partnership, then we need to change the perceptions…5

Mr. Kirschensteiner knew that the National Environmental Policy Act (“NEPA”) requires adherence to a process where a number of alternatives, including a “no-build” alternative, are neutrally considered before a preferred alternative is selected, and he knew that political considerations are not supposed to dictate outcomes.

The government agencies involved were concerned about political impact, not environmental impact, and internal communications prove this inappropriate confusion of priorities. “We don’t need 1,000+ downriver people… all beating their drums and doing the NIMBY thing.”6 “People just don’t want to get involved until they perceive it will impact them directly… That is why there is so much interest at present in the down river area … Would you be as interested or involved if the only locations being studied were, say in the [Delray] central corridor?”7 Because of its status as an EJ community, Delray was placed in the bull’s eye before the NEPA process took place, and in the proceedings below, the FHWA has failed to meaningfully dispute, much less disprove this charge.

In any event, once the bulk of the alternatives had been eliminated, the sites located in Delray (sites X-10 and X-11) as well as the expansion of the Ambassador Bridge (X-12) remained in consideration. On October

5. DRIC-SUPP006117.

6. DRIC120787.

7. DRIC109000 (emphasis supplied).

7

26, 2005, the FHWA announced that X-12 was a top ranked alternative that deserved further consideration. The Canadian partners objected, but they were told by their U.S. counterparts to “go back and do more study to evaluate the issue.”8 Nevertheless, only eight days later, at a November 3, 2005 meeting, the U.S. adopted Canada’s position and eliminated X-12. Curiously, the FHWA maintains that the entire “study process,” as well as the presentation to the U.S. partners, and any “independent” review by FHWA, all occurred in the eight-day interval.

Despite the fact that the X-12 alternative was determined to have “minimal direct environmental impacts” and a “high regional mobility ranking,” the alternative was eliminated with a classic ipse dixit:

I have considered that the Canadian partners have fi rmly stated their objections to alternative X-12 and their unwillingness to consider this alternative further. Therefore, I conclude that the twinning alternative, X-12, is not a practical alternative for further study on the U.S. side.

The reason for Canada’s “unwillingness to consider” the twinning alternative is not to be found in the AR.9 It seems that Canada was given some kind of veto power that was not extended to the citizens of Delray.

With the downriver, more-affl uent, majority locations safely out of consideration, and with the expansion of

8. DRIC111768.

9. Declarations from the Canadian government in the year 2014 also belie the claim made. See below.

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the Ambassador Bridge off the table, Delray was the only possible location left to be studied for potential environmental impact. A sham impact analysis was done in 2005, 2006 and 2007. In 2008, the neighborhood of Delray was identifi ed as the “Preferred Alternative.”

The FHWA noted that 83% of the population in Delray was minority and 29% of the population was below the poverty line. The agency acknowledged that “about three quarters of those potentially relocated by the [] Preferred Alternative are minorities.” Id. However, the FHWA never considered the possibility of building the DRIC in a neighborhood where people were more affl uent and white. The AR does not contain an apples-to-apples comparison where the prospect of constructing the DRIC in Delray was compared to the prospect of building it in a more privileged area. This is directly contrary to the spirit and letter of EJ doctrine and regulation that apply to the situation in question.

Executive Order No. 12,898 instructs federal agencies to:

…make achieving environmental justice part of its mission by identifying and addressing, as appropriate, environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States…Exec. Order No. 12,898, 1-101.

The FHWA has internal regulations which declare allegiance to these principles. See e.g. Environmental

9

Justice Order 6640.23A (requiring FHWA to implement the principles of the U.S. Dep’t of Transp., Order No. 5610.2(a), Department of Transportation Updated Environmental Justice Order 5610.2(a)(2012)10). Specifi cally, the FHWA ordered:

FHWA will administer its governing statutes so as to identify and avoid discrimination and disproportionately high and adverse effects on minority populations and low-income populations.Environmental Justice Order 6640.23A.

It seems well settled that the FHWA was required to avoid placing the DRIC in a poor, Latino neighborhood like Delray, if possible, or, that at minimum, the prospect of placing the DRIC somewhere else had to be given a hard look.

The FHWA knew that the DRIC would wreak havoc on Southwest, with Delray as the “Preferred Alternative.” At least 257 households will be “relocated,” and 43 businesses will be destroyed. DRIC014435-37; 014441. The community will lose fi ve places of worship as well as a community center and a playground. Id. The residents will be exposed to substantial noise impacts, and an apartment building will end up within 40 feet of the ramp to the project. Id. Traffi c patterns will be disrupted due to the closure of four out of seven streets crossing I-75 and due to the closure or modifi cation of traffi c interchanges. In a neighborhood where fewer people can afford automobiles, two bus lines will be “rerouted.” Id.

10. Available at http://www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/order_56102a/dot56102a.pdf

10

All of this should have prompted the FHWA to take a “hard look” at alternatives in other communities that were not as underprivileged. The FHWA was required to “consider alternatives to proposed programs, policies and activities where such alternatives would result in avoiding and/or minimizing disproportionately high and adverse human health and environmental impacts.” Environmental Justice Order 6640.23A, supra. However, there is no evidence of such consideration in the AR, no side by side comparison.

Delray was declared the “Preferred Alternative” early on, and afterward, the FHWA counted up the disproportionate impacts on Delray as an EJ community without considering any ways to avoid or minimize such harm. Environmental Justice has to be about more than exploiting the weak and simply recording the adverse effects on neighborhoods where people do not have “white picket fences and little kids happily playing in the yards.” It ought to be about trying to insure that government agencies do not pick on communities for improper reasons.

The FHWA’s dismissive attitude toward these requirements is contrary to law. When properly applied:

[T]he National Environmental Policy Act prevents federal agencies from effectively reducing the discussion of environmentally sound alternatives to a binary choice between granting or denying an application. See Davis v. Mineta, 302 F.3d 1104, 1122 (10th Cir 2002) (“[O]nly two alternatives were studied in detail: the no build alternative, and the preferred alternative. [The agency] acted arbitrarily and

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capriciously in approving an [environmental assessment] that does not provide an adequate discussion of [p]roject alternatives.”); see also Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174 (10th Cir. 1999). (“[T]he National Environmental Policy Act and Council on Environmental Quality Regulations require [an agency] to study in detail all ‘reasonable’ alternatives [in an environmental impact statement]… [Courts] have interpreted this requirement to preclude agencies from defi ning the objectives of their actions in terms so unreasonably narrow they can be accomplished by only one alternative.”)Save O ur Cumberl an d Mo unt ain s v. Kempthorne, 453 F.3d 334, 345 (6th Cir 2006).

While it is true that NEPA does not require federal agencies to consider every conceivable alternative, it is also true that “[t]o make an impact statement something more than an exercise in frivolous boilerplate the concept of alternatives must be bounded by some notion of feasibility.” Kentucky v. Alexander, 655 F.2d 714, 718 (6th Cir 1981).

The FHWA’s acknowledged reason for eliminating X-12 (and for failing to conduct an Environmental Justice analysis of the site) was to appease the Canadian Partners’ purported concerns about the impact of X-12 in Canadian neighborhoods – even though these concerns were never substantiated with anything in the AR. By acceding to Canada’s demand that a low-income and Hispanic community in the United States should bear the brunt of the DRIC in order to spare more affl uent, white neighborhoods in Canada, the FHWA violated its own EJ obligations.

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This error is all the more serious, because it was done without analyzing and presenting for public review a choice between protecting Canada’s unidentifi ed interests at the expense of the EJ community in Delray. The error is even “un-American” in that it was a decision made by Americans, affecting Americans on the American side of the Detroit River, although the deciding factor was entirely a Canadian concern. The end result is a shameful display of disregard for the Latin-American Community which amicus curiae represents.

Under the Administrative Procedure Act (“APA”), the reviewing court must affirm an agency decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 USC § 706(2)(A) of APA. The court is to determine whether an agency considered the relevant factors and whether they made a “clear error of judgment.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). While this standard of review is narrow and gives agency decisions a high degree of deference, see Sierra Club v. Envt’l Prot. Agency, 252 F.3d 943, 947 (8th Circ. 2001), an agency’s ruling is arbitrary and capricious if it (1) relied on factors Congress did not intend it to consider; (2) “entirely failed to consider an important aspect of the problem;” (3) offered an explanation that runs counter to the evidence before the agency; or (4) “is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” See Motor Vehicle, supra.

Following these standards, NEPA is supposed to ensure that federal agencies do not act on incomplete information. Marsh, supra at 371. NEPA prohibits uninformed agency action. Robertson v. Methow Valley

13

Citizens Council, 490 U.S. 332, 351 (1989). A decision based on incomplete information violates the APA’s requirements as a matter of law, and by logical extension, a decision based on false information violates the law as well.

It is the position of amicus curiae that the absence in the administrative record of the information and documents detailing and supporting the Canadian decision to discount the “no-build / no-impact” alternative of the Twin Span is in itself clear error of judgment, evidencing arbitrary and capricious decision-making as enunciated by this Court in Motor Vehicle, supra. Did Congress intend for federal agencies to consider, much less rely on, decisions purportedly made by foreign governments, when addressing the environmental impacts of agency action on communities and sub-populations of American citizens – here an acknowledged “environmental justice” community? See Motor Vehicle, supra at 43 (an agency decision is arbitrary and capricious when it relies on factors Congress never intended it to consider).

Furthermore, the FHWA failed to consider an important aspect of the problem. Aside from the fact that Canada eventually approved an expansion of the Ambassador Bridge, after alternative X-12 was eliminated from the NEPA study,11 the FHWA did not consider the possibility that the X-12 alternative could be completed

11. Canada approved the environmental impacts of X-12, the second span of the Ambassador Bridge owned by Detroit International Bridge Company, after the Sixth Circuit Court of Appeals had heard oral argument. Presumably, the Sixth Circuit decision affi rmed the elimination of X-12 based on the assumption (since proven false) that Canada had rejected X-12 as a site due to adverse environmental impacts in Canada.

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without the construction of a new 120-acre facility in Canada (as Canadian offi cials had apparently supposed). The FHWA either failed to consider all information, relied on information in a manner not intended by Congress, or failed to consider important aspects of the problem. In any of these circumstances, the action is an abuse of discretion, arbitrary, capricious, and not in accordance with U.S. law. The FHWA’s decision, and its approval by the courts below, establishes a dangerous precedent that Environmental Justice principles are voided when international partners are involved – that impermissibly discriminatory decision-making is forgivable when done across an international boundary of the United States. That rule must be changed, because the rights of American citizens should not be dependent upon the indulgence of neighboring nations.

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CONCLUSION

Because the X-12 and the X-1 through X-9 alternatives were eliminated in 2005, the Community Inventory Technical Report conducted two years later to provide a discussion of community issues and concerns did not present plausible alternatives to destroying an EJ community. No “hard look” was given to the EJ effects of the most plausible alternatives (including the highly ranked X-12 alternative), and the FHWA frustrated NEPA’s fundamental purpose of encouraging fulsome discussion of appropriate alternatives by pre-selecting Delray as the “Preferred Alternative” in deference to political considerations and foreign interests.

The Detroit International Bridge Company’s Petition should be granted to allow the Court an opportunity to address the inappropriate way in which the FHWA sought to exploit the poor, Hispanic community of Southwest, despite the clear prohibitions of NEPA and the APA.

Respectfully submitted,

LAWRENCE T. GARCIA

Counsel of RecordCARSON J. TUCKER

GARCIA LAW GROUP, PLLCThe Fisher Building3011 West Grand Boulevard, Suite 2500Detroit, MI 48202(877) 643-6255lgarcia@garcialawgrouppllc.com

Attorneys for Amicus Curiae

Appendix A

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APPENDIX

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