Sierra Club v. United States Department of Transportation (310 F. Supp. 2d 1168, 2004)

ORDER

PRO, Chief Judge.

Presently before this Court are cross-motions for summary judgment. Defendants United States Department of Transportation (“USDOT”); Secretary of Transportation Norman Mineta; Federal Highway Administration (“FHWA”); FHWA Administrator Mary Peters; and FHWA Division Administrator John Price (collectively “Defendants” or “FHWA”) filed a Motion for Summary Judgment (Doc. #74) on June 30, 2003. Plaintiff Sierra Club also filed a Motion for Summary Judgment (Doc. # 76) on June 30, 2003. Both parties filed Responses (Docs.# 86, 87) on August 29, 2003, and filed Replies (Docs.# 96, 97) on October 20, 2003. On February 18, 2004, the Court conducted a hearing regarding the foregoing Motions.

Also before the Court is Plaintiff Sierra Club’s Third Motion to Supplement Administrative Record and Request for Judicial Notice (Doc. # 100), filed on March 4, 2004. FHWA filed Federal Defendants’ Response to Plaintiffs Third Motion to Supplement the Administrative Record (Doc. # 102) on March 8, 2004. The Court conducted a teleconference hearing on this motion on March 9, 2004.

I. BACKGROUND

Sierra Club commenced this action for injunctive and declaratory relief on April 22, 2002, pursuant to the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (“NEPA”), the Federal-Aid Highway Act as amended by the Transportation Equity Act for the 21st Century, 23 U.S.C. §§ 101 et seq., the Administrative Procedure Act, 5 U.S.C. §§ 500 et seq. (“APA”) and these statutes’ implementing regulations. Sierra Club seeks injunctive and declaratory relief relating to FHWA’s approval of a proposed project to widen US-95 to ten lanes. (Compilé 34-36.) Sierra Club claims that in reaching the decision to approve the US-95 widening project, FHWA did not adequately discharge various statutory duties. (ComplA 1.)

First, Sierra Club challenges the adequacy of the Environmental Impact Statement (“EIS”) FHWA prepared for the proposed project. Sierra Club asserts the EIS did not adequately identify and study the project’s direct, indirect, and cumulative impacts, such as induced growth, induced travel, adverse health impacts from increased motor emissions, air quality impacts during construction, and social and fuel costs of traffic delays during construction. (Compl. ¶¶ 117-18 [Count 1].) Sierra Club also argues FHWA relied on inaccurate information in preparing the EIS, particularly in its use of unreliable traffic and population projections. (Compl. ¶¶ 120-121 [Count 2].) Additionally, Sierra Club alleges the EIS failed to identify and analyze all reasonable alternatives. Sierra Club particularly takes issue with the EIS’s failure to consider a fixed guideway alternative. (Compl. ¶¶ 124-26 [Count 3].) Sierra Club also argues FHWA inadequately responded to comments by the United States Environmental Protection Agency (“EPA”) and others that the project would not meet project goals, and that the EIS failed to consider induced demand and public health risks created by the project. (Compl. ¶¶ 129-131 [Count 4].)

In addition to its concerns about the EIS, Sierra Club alleges FHWA violated NEPA by refusing to prepare a supplemental EIS (“SEIS”) following Sierra Club’s two requests that FHWA do so. According to Sierra Club, NEPA requires FHWA to prepare a SEIS to study induced travel and health risks associated with the project. (Compl. ¶¶ 133-36 [Count 5].)

Finally, Sierra Club contends FHWA violated federal highway statutes and their implementing regulations. Sierra Club asserts the EIS failed to consider mitigation of adverse health impacts as required by 23 U.S.C. § 109. Sierra Club also challenges whether FHWA’s “open house” hearings satisfy 23 U.S.C. § 128’s public hearing requirement. (Compl. ¶¶ 138-142 [Counts 6, 7].)

1. The Major Investment Study

Nevada is the fastest growing State in the United States, having doubled in population every decade since 1970. (Administrative Record [“AR”] 30-14496.) A large percentage of that growth is occurring in the northwest portion of the Las Vegas metropolitan area. (Id.) The primary employment center in Las Vegas is the Resort Corridor, a centrally located area in which many of the city’s resort hotels are situated. (Id.) Although several major roadways link the northwest to the Resort Corridor, US-95 is the only freeway serving the northwest region. (AR 01-00052.)

US-95 is a six-lane freeway extending westward for five miles from the downtown I-15/US-95 interchange to the Summerlin Parkway/Rainbow Boulevard interchange. (AR 01-00057.) At the Summerlin Parkway/Rainbow Boulevard interchange, US-95 constricts to four lanes, and turns northward for five and one half miles to the Rancho interchange. (Id.) At Rancho, US-95 turns northwestward towards Tonopah. (Id.)

The rapid population growth in the northwest is overwhelming the capacity of existing transportation facilities. As of 1995, traffic volumes on approximately forty miles of roadways in the northwest, including US-95, exceeded road capacity during the evening peak-hour of traffic. (AR 01-00091.) Commuter trips between the northwest and the Resort Corridor are expected to increase by fifty-four percent by 2015. (AR 01-00064.) In the absence of any improvements, by the year 2015, peak-hour traffic volume is expected to equal or exceed capacity on over one hundred miles of roadway in the northwest. (AR 01-00019.)

In addition to these transportation problems, air quality in the Las Vegas valley has fallen below the EPA’s national ambient air quality standards (“NAAQS”) promulgated under the Clean Air Act. (AR 30-14726.) The EPA has classified Clark County, Nevada as a serious nonattainment area for the air pollutants carbon monoxide and particulate matter (PM^). (Id.)

In response to this rapid growth and increased congestion, the Nevada Department of Transportation (“NDOT”), in cooperation with the Regional Transportation Commission (“RTC”), the Cities of Las Vegas and North Las Vegas, and Clark County initiated a Major Investment Study (“MIS”). (AR 01-00048.) The purpose of the MIS was:

to develop a program to meet the short and long term transportation needs of the Northwest Region of the Las Vegas Valley. The Study will identify and evaluate alternatives which will provide increased opportunities for enhanced mobility for Valley residents. The Study will seek technically sound, practical solutions in response to the need to relieve congestion to accommodate the continued growth of the community.

(AR 02-00782.) The MIS proceeded in two phases. The first phase consisted of articulating the purpose and need for the project, identifying improvement alternatives, initiating public involvement, and developing an early action plan. (AR 01-00188.) The second phase consisted of an evaluation of alternative strategies to meet the area’s short and long term transportation needs. (AR 02-00914.)

During the first phase, NDOT, through its consultant Louis Berger & Associates, prepared a series of technical memoranda “to identify and analyze investment needs and opportunities for major transportation infrastructure and services that could best alleviate mobility problems in the Northwest Region.” (AR 01-00050; 01-00048-01-00113; 01-00117-01-00142; 01-00184-01-00419; 01-00420-02-00776; 04-01651-04-02033; 05-02034-05-02458.) NDOT also prepared and issued an Early Action Plan (“EAP”) in May 1996. (AR 01-00143-00183.) The EAP identified improvements that could be implemented within a one-year time frame to temporarily relieve congestion in the northwest. (AR 01-00146.)

As a result of these efforts, NDOT produced a Preliminary Evaluation of Alternatives (“PEA”) in February 1997. (AR 02-00777-02-00904.) The report’s purpose was “to identify alternatives which would be effective in reducing congestion and improving mobility in the Northwest Region.” (AR 02-00779.) The PEA relied on the RTC’s TRANPLAN travel demand forecasting model. (AR 02-00920.) This model reports trip patterns and purposes in terms of “person trips.” (Id.) “Person trips vary from vehicle trips because of the potential of multiple occupancy in private vehicles and the use of public transit.” (Id.) Based on traffic projections using TRANPLAN, the PEA projected a capacity shortfall in 2015 of approximately 23,000 vehicle trips during the peak hour, or approximately 30,000 person trips. (AR 02-00793.)

The PEA identified a variety of alternatives to address this capacity shortfall. The PEA considered widening US-95, double decking US-95, installing reversible or high occupancy vehicle (“HOV”) lanes on US-95, enhancing bus services, developing fixed guideway transit, and creating new freeways or super arterial corridors. (AR 02-00782.)

The report concluded “no individual project could be expected to provide sufficient capacity to accommodate projected growth through the year 2015.” (Id.) Consequently, the PEA recommended considering alternatives in combination to meet the projected capacity shortfall. (Id.) The report recommended three possible strategies, all consisting of combined projects: (1) the US-95 Improvement Strategy involving a widened or double decked US-95, a freeway management system, regional street system improvements, and continued conventional bus service; (2) the Fixed Guide-way Strategy involving enhanced bus service, transportation demand management, fixed guideway transit, regional street system improvements, and a freeway management system; and (3) the Rainbow/Desert Inn Super Arterial Strategy involving a Rainbow/Desert Inn super arterial corridor, regional street system improvements, a freeway management system, transportation demand management, and enhanced bus service. (AR 02-00796.)

In April 1997, NDOT prepared the MIS Detailed Evaluation of Alternative Strategies. (AR 02-00910-03-01137.) This report evaluated and compared in detail the three recommended strategies. (AR 03-01092-03-01137.)

Based on these comparisons, the MIS adopted a variation of the US-95 Improvement Strategy as the “locally preferred alternative.” (AR 03-01124.) The locally preferred alternative consisted of widening various portions of US-95 and the Summerlin Parkway, constructing HOV lanes on US-95 and the Summerlin Parkway, improving arterial street connections, widening various arterial streets, enhanced bus service, a freeway management system, and transportation demand management measures. (AR 03-01124.) NDOT anticipated the locally preferred alternative would accommodate an additional 36,-000 person trips at a cost of approximately $432 million. (AR 03-01130; 03-01134.)

In adopting the locally preferred alternative, the MIS rejected the Fixed Guide-way and Super Arterial Strategies. The MIS rejected the Fixed Guideway Strategy because the MIS calculated it would not meet the projected capacity shortfall, would cost hundreds of millions more than other alternatives, and would depend on the Resort Corridor Fixed Guideway (“RCFG”), which had not yet been approved or funded. (AR 03-01130; 09-04510.) The MIS also rejected the Super Arterial Strategy “[d]ue to the relatively high cost for limited increased capacity and the high level of impacts ....” (Id.)

2. The NEPA Process

Following adoption of the locally preferred alternative, NDOT and FHWA began the environmental review process mandated by NEPA by filing a Notice of Intent to Prepare an Environmental Impact Statement (“EIS”) on April 23, 1997. (AR 03-01258, 62 Fed.Reg. 19850-51 (Apr. 23, 1997).) FHWA and NDOT subsequently prepared various technical reports analyzing potential impacts of the project. The reports considered as alternatives two similar options which would widen US-95 either north or south of the existing freeway and a “no build” option. The reports analyzed potential impacts to archaeological resources, soils and water resources, hazardous materials, socioeconomic factors and land use, vegetation and wildlife, air quality, and cultural resources. (AR 11-04964; 11-05248; 12-05788; 14-06507; 17-07901; 25-12032; 25-12147; 26-12350.)

On May 5, 1999, FHWA released the Draft EIS (“DEIS”) for public review. (AR 28-13713.) The agency accepted public comment on the DEIS for over sixty days. (AR 28-13670-28-13673; AR 29-13898 [64 FedReg. 24649 (May 7, 1999) ].) FHWA held two public hearings on June 9 and 10, 1999. (AR 28-13670.) During the comment period, NDOT and FHWA received various comments from members of the public and government agencies, including EPA, regarding the proposed project’s potential adverse impacts on air quality, induced growth, and induced travel; the failure to include analysis of any alternatives to widening US-95 beyond the “no-build” option; whether the project would become congested soon after completion; the DEIS’s reliance on allegedly inaccurate traffic and population forecasts; and objections to NDOT’s “open house” format public hearings. (AR 33-15184-33-15242; 33-15269-33-15380; 33-15393-33-15567; 33-15585-33-15763.)

After the comment period closed, NDOT and FHWA prepared a Final EIS (“FEIS”). (AR 30-14415-33-15979.) The FEIS included the agencies’ responses to comments received during the comment period. (AR 33-15246-33-15267; 33-15385-33-15391; 33-15574-33-15583; 33-15769-33-15788.) FHWA approved the FEIS, and, on December 3, 1999, published notice of its availability in the Federal Register. (AR 30-14412; 33-16108 [64 Fed.Reg. 67897 (Dec. 3, 1999) ].) The agencies again accepted public comment for thirty days. (AR 33-16108 [64 Fed.Reg. 67897 (Dec. 3, 1999) ].) Public citizens, watchdog groups, and EPA again commented on the FEIS, raising many of the same concerns expressed with respect to the DEIS. (AR 33-16211-33-16233; 34-16412-34-16425.) On January 28, 2000, FHWA issued a Record of Decision (“ROD”) selecting the proposed US-95 widening project, with widening to occur to the north of the existing freeway. (AR 33-16403.)

3. Requests for a SEIS

On June 20, 2000, Plaintiff Sierra Club requested FHWA and NDOT prepare a Supplemental Environmental Impact Statement (“SEIS”) to address new information documenting a “connection between vehicle emissions and cancer in communities adjoining highways.” (AR 34-16446.) Sierra Club also requested the agencies prepare a SEIS in response to new information relating to induced travel. (AR 34-16447.) On July 17, 2000, FHWA denied Sierra Club’s request. (AR 34-16702.)

Sierra Club then commissioned two independent studies regarding the effect that the US-95 widening project would have on people who live, work, or attend school near that portion of the highway. (AR 35-16734.) Both studies concluded FHWA should prepare a SEIS to evaluate health effects from air pollution arising from widening US-95. Sierra Club forwarded these studies to FHWA and again requested that FHWA prepare a SEIS. On February 5, 2002, FHWA again denied Sierra Club’s request. (AR 35-16881.) Following FHWA’s second denial, Sierra Club filed this action.

A Motion to Dismiss

On August 7, 2002, Defendants filed a motion to dismiss the Complaint based on the doctrine of laches. (Doc. # 11.) Defendants argued that because Sierra Club did not file suit until over two years after FHWA issued the ROD, Sierra Club waived its claims. (Id.) Sierra Club responded that a laches defense is disfavored in the environmental context, that Sierra Club diligently pursued its claims through the administrative process, and that Defendants were not prejudiced by the delayed filing. (Doc. # 18.)

On February 14, 2003, this Court denied Defendants’ motion. Sierra Club v. U.S. Dep’t. of Transp., 245 F.Supp.2d 1109 (D.Nev.2003) (Doc. # 34). Initially, the Court noted that a laches defense rarely should succeed in environmental cases. Id. at 1115. To determine whether laches should bar the Complaint, the Court considered Sierra Club’s diligence in pursuing its claims and whether Defendants would be prejudiced by the continued prosecution of the case. Id. The Court concluded Sierra Club was diligent in pursuing its claims because it was active throughout the public comment process on the widening project and because part of the delay was attributable to Sierra Club’s commissioning of two studies. Id. at 1115-17. The Court also considered prejudice in terms of whether the environmental harm Sierra Club seeks to prevent is irreversible. Id. at 1117. The Court concluded that because the freeway widening had not occurred, FHWA’s further consideration of environmental concerns could prompt reconsideration of the project, changes in the design, or consideration of other alternatives. Id.

5. Third Request to Supplement the Administrative Record

On March 4, 2004, Sierra Club filed a motion to supplement the administrative record. (Doc. # 100.) Sierra Club requests the Court consider recently-issued EPA policy guidance officially adopting the MOBILE6.2 emissions model that is now capable of modeling emissions for air tox-ics and PM2.5. (PI. Sierra Club’s Third Mot. to Supplement Administrative R. and Request for Judicial Notice [“Third Mot. to Supplement R.”], Ex. A.) Sierra Club argues EPA’s issuance of this guidance is significant because FHWA consistently has relied on the absence of available modeling tools as a reason not to further study air toxics and PM2.5 in the EIS or in a SEIS. FHWA does not oppose the motion to supplement the record with EPA’s policy guidance. (Fed. Defs.’ Resp. to Pl.’s Third Mot. to Supplement the Administrative R. at 2.) But FHWA contests the significance of EPA’s policy guidance as it relates to the US-95 widening project EIS.

The parties now cross move for summary judgment on all counts. The parties dispute whether the EIS was adequate; whether FHWA violated NEPA by refusing to prepare a SEIS; whether the EIS adequately addressed mitigation of adverse air quality impacts; and whether the open house format fulfilled federal highway statutory and regulatory public hearing requirements.

II. JUSTICIABILITY

Both standing and mootness are jurisdictional issues deriving from the “case or controversy” requirement of Article III of the United States Constitution. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir.2000). Although the parties do not raise either issue, this Court has an independent obligation to examine its own jurisdiction. Public Citizen v. Dep’t of Transp., 316 F.3d 1002, 1014 (9th Cir.2003), cert. granted, Dep’t of Transp. v. Public Citizen, — U.S. -, 124 S.Ct. 957, 157 L.Ed.2d 793 (2003).

A. Standing

“The standing inquiry focuses upon whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy, and serves to ensure that legal questions presented to the court will be resolved in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action.” Hall v. Norton, 266 F.3d 969, 975 (9th Cir.2001) (quotations, alterations, and internal citation omitted). Sierra Club must overcome three standing hurdles: (1) Article III standing; (2) organizational standing; and (3) statutory standing under the APA.

1. Article III Standing

To establish standing under Article III of the United States Constitution, a plaintiff must show:

“(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”

Public Citizen, 316 F.3d at 1015 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)).

a. Injury in Fact

Plaintiff Sierra Club asserts procedural injuries arising out of FHWA’s alleged violation of NEPA and APA. “To satisfy the injury in fact requirement, a plaintiff asserting a procedural injury must show that ‘the procedures in question are designed to protect some threatened concrete interest of his that is the ultimate basis of his standing.’ ” Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th Cir.2001) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 n. 8, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The “procedures in question” here consist of NEPA and its implementing regulations. NEPA requires federal agencies to perform certain environmental analyses before taking “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332.

In NEPA cases, a plaintiff may demonstrate a “concrete interest” by showing a “ ‘geographic nexus’ between the individual asserting the claim and the location suffering an environmental impact.” Cantrell, 241 F.3d at 679 (quoting Douglas County v. Babbitt, 48 F.3d 1495, 1500 n. 5 (9th Cir.1995)). Sierra Club has members who live in Las Vegas, and who participated in the NEPA process with respect to the US-95 widening project. Sierra Club alleges that widening US-95 will lead to the deterioration of air quality in Las Vegas, encourage urban sprawl, and result in the same level of congestion soon after completion of the freeway expansion. The Ninth Circuit has held that “evidence of a credible threat to the plaintiffs physical well-being from airborne pollutants falls well within the range of injuries to cognizable interests that may confer standing.” Hall, 266 at 976; see also Public Citizen, 316 F.3d at 1015-16 (organizational plaintiff stated cognizable injury in fact by alleging its members would suffer adverse health effects due to emissions from Mexican-domiciled trucks permitted into the country under USDOT regulations). Thus, Sierra Club has stated a cognizable injury in fact including potentially increased exposure to auto emissions as a result of the widening project.

b. Causation

“Once a plaintiff has established an injury in fact under NEPA, the causation and redressability requirements are relaxed.” Cantrell, 241 F.3d at 682. “Unlike in an ordinary causation analysis, a petitioner asserting a procedural injury need only establish the reasonable probability of the challenged action’s threat to [his] concrete interest.” Public Citizen, 316 F.3d at 1016 (quotations and emphasis omitted).

Sierra Club has presented evidence supporting a reasonable probability that expanding US-95 to ten lanes could lead to increased emissions of carbon monoxide, particulate matter, fine particulate matter, and mobile source air toxics. Sierra Club also has presented evidence that suggests these pollutants are or may be linked to increased cancer risks. (AR 34-16448-34-16566; 34-16567-34-16579; 35-16757-35-15763; 35-16764-35-16782.) Because EPA has designated Las Vegas as a serious nonattainment area for carbon monoxide and particulate matter, increased emissions may lead to further violations of national air quality standards which are set at a level aimed at protecting human health. 42 U.S.C. § 7409(b)(1) (requiring EPA to set NAAQS at a level “requisite to protect the public health”). Sierra Club presented evidence that FHWA’s underestimation of population projections and failure to consider factors such as induced travel demand may result in FHWA overestimating the benefits, and underestimating the air quality risks, posed by widening US-95. (AR 31-15184-31-15193; 32-15683-32-15686; 33-16211-33-16212.)

c. Redressability

In most procedural injury cases involving environmental analyses, a petitioner “who asserts inadequacy of a government agency’s environmental studies ... need not show that further analysis by the government would result in a different conclusion. It suffices that ... the [agency’s] decision could be influenced by the environmental considerations that [the relevant statute] requires an agency to study.” Public Citizen, 316 F.3d at 1018-19 (quotation and emphasis omitted). Sierra Club has met this “relatively easy burden.” Id. at 1019. NEPA contemplates FHWA’s decision could be influenced by the environmental considerations NEPA requires governmental agencies to evaluate. See, e.g., 42 U.S.C. § 4332(2)(B). To the extent FHWA has failed to consider various potential environmental effects as alleged by Sierra Club, its decision may be altered by such analyses.

As discussed above, Sierra Club has established its members have suffered injury in fact caused by Defendants’ actions that this Court may redress. Consequently, Sierra Club has established Article III standing.

2. Organizational Standing

Sierra Club has standing to bring suit on behalf of its members “ ‘when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’ ” Public Citizen, 316 F.3d at 1019 (quoting Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693). Sierra Club adequately has alleged injury to its members. The environmental interests at stake, including air pollution and attendant potential health risks, are pertinent to its interests. Id. Finally, resolution of this case does not require participation of Sierra Club’s individual members. Id.

3. APA Standing

Because NEPA itself authorizes no private right of action, persons aggrieved by an agency’s alleged failure to comply with NEPA may seek relief under the APA’s provisions for judicial review of agency action. Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.1988); see also 5 U.S.C. § 702. A plaintiff pursuing an action under the APA must meet the APA’s statutory requirements for standing. Public Citizen, 316 F.3d at 1019. To establish APA standing, Sierra Club must show “(1) that there has been final agency action adversely affecting [it], and (2) that, as a result, it suffers legal wrong or that its injury falls within the ‘zone of interests’ of the statutory provision [Sierra Club] claims was violated.” Id. (quotation omitted).

FHWA issued a ROD approving the US-95 widening project (AR 33-16139), and thus FHWA has taken final agency action. Or. Natural Res. Council v. Harrell, 52 F.3d 1499, 1503-04 (9th Cir.1995) (Army Corps of Engineers’ issuance of ROD regarding dam construction was final agency action over which district court had jurisdiction). Sierra Club claims the FHWA has endangered its members and the environment by failing to comply with NEPA. Sierra Club’s allegations fit comfortably within NEPA’s zone of interests in protecting the environment and state a claim under the APA.

B. Mootness

A case becomes moot whenever it “los[es] its character as a present, live controversy of the kind that must exist if [courts] are to avoid advisory opinions on abstract propositions of law.” Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). In deciding mootness, “the question is not whether the precise relief sought at the time the application for an injunction was filed is still available. The question is whether there can be any effective relief.” Cantrell, 241 F.3d at 678 (quotation omitted).

Sierra Club’s primary concerns with the US-95 widening project involve widening US-95 from six to ten lanes for the five-mile stretch between the I-15/US-95 interchange and the Summerlin Parkway. Most of its criticisms of the EIS and FHWA’s failure to prepare a SEIS revolve around this component’s potential environmental and health impacts. As of this date, construction on this phase of the US-95 project has not begun. FHWA and NDOT intend to begin the bidding process on widening US-95 from six to ten lanes in April 2004, with construction to begin in June 2004. (Stipulation and Order to Supplement the Administrative R. and to Withdraw Sierra Club’s Second Mot. to Supplement the Administrative R., [Doc. # 93] at 3.) Because the Court could enjoin construction of this allegedly most damaging aspect of the overall project, the controversy is not moot. West v. Sec’y of Dept. of Transp., 206 F.3d 920, 925 (9th Cir.2000) (concluding case was not moot even though some highway construction had been completed because the court’s remedial powers “would include remanding for additional environmental review and, conceivably, ordering the interchange closed or taken down”).

III. STANDARD OF REVIEW

Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any” demonstrate “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Because NEPA does not contain a separate provision for judicial review, the Court reviews an agency’s compliance with NEPA under the APA. Churchill County v. Norton, 276 F.3d 1060, 1071 (9th Cir.2001). Under the APA, the court bases its decision on a review of the administrative record. 5 U.S.C. § 706. Thus, an APA case generally contains no genuine issues of material fact. See Bank of Commerce of Laredo v. City Nat. Bank of Laredo, 484 F.2d 284, 289 (5th Cir.1973) (“when a plaintiff who has no right to a trial de novo brings an action to review an administrative record which is before the reviewing court, ‘the case is ripe for summary disposition, for whether the order is supported by sufficient evidence, under the applicable statutory standard, or is otherwise legally assailable, involve matters of law.’ ”) (quoting 6 J. Moore, Federal Practice ¶ 56.17[3], at 2472 (1965)); Buckingham Township v. Wykle, 157 F.Supp.2d 457, 462 (E.D.Pa.2001).

Under the APA, the Court may overturn an agency decision under NEPA only if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Courts defer to a “ ‘fully informed and well-considered’ agency decision, but [] need not forgive a ‘clear error of judgment.’ ” Churchill, 276 F.3d at 1071 (quoting Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1211 (9th Cir.1998)).

“NEPA ‘does not mandate particular results,’ but ‘simply provides the necessary process’ to ensure that federal agencies take a ‘hard look’ at the environmental consequences of their actions.” Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 814 (9th Cir.1999) (per curiam) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). Because NEPA does not dictate particular results, the Court must not substitute its judgment for that of the agency’s, but instead must uphold the agency decision so long as the agency has “‘considered the relevant factors and articulated a rational connection between the facts found and the choice made.’ ” Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 953-954 (9th Cir.2003) (quoting Wash. Crab Producers, Inc. v. Mosbacher, 924 F.2d 1438, 1441 (9th Cir.1990)). Nevertheless, the Court strictly interprets the procedural requirements in NEPA and the Council on Environmental Quality’s (“CEQ”) regulations implementing NEPA consistent with the policies embodied therein; “ ‘[g]rudg-ing, pro forma compliance will not do.’ ” Churchill, 276 F.3d at 1072 (quoting Lathan v. Brinegar, 506 F.2d 677, 693 (9th Cir.1974) (en banc)).

IV. INADEQUATE EIS

“NEPA ‘is our basic national charter for protection of the environment.’ ” Id. (quoting Blue Mountains, 161 F.3d at 1215). NEPA and CEQ regulations require federal agencies to prepare a detailed EIS for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). “These actions include projects implemented by non-federal entities that use federal funding.” Tyler v. Cuomo, 236 F.3d 1124, 1129 (9th Cir.2000).

Title 42 U.S.C. § 4332(2)(C) is “one of the ‘action-forcing’ provisions intended as a directive to ‘all agencies to assure consideration of the environmental impact of their actions in decisionmaking.’ ” Kleppe v. Sierra Club, 427 U.S. 390, 409, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976) (quoting Conference Report on NEPA, 115 Cong. Rec. 40416 (1969)). Compliance with 42 U.S.C. § 4332(2)(C) ensures federal agencies will consider significant environmental impacts of federal action, make available the relevant information, and open to public scrutiny their decision making process. Churchill, 276 F.3d at 1072-73. “NEPA also emphasizes the importance of coherent and comprehensive up-front environmental analysis to ensure informed decision making to the end that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.” Id. (quotation omitted).

The Court applies a “rule of reason” standard when reviewing the adequacy of an agency’s EIS. Id. at 1071. Under this standard, the Court asks “ ‘whether an EIS contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences.’ ” Id. (quoting Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir.1974)). The Court “makes ‘a pragmatic judgment whether the EIS’s form, content and preparation foster both informed decision-making and informed public participation.’” Id. (quoting Trout Unlimited, 509 F.2d at 1283). Review under the rule of reason and for abuse of discretion “are essentially the same.” Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1376 (9th Cir.1998).

Sierra Club argues the EIS for the US-95 widening project is inadequate for four reasons: (1) the EIS did not adequately identify and study the direct, indirect, and cumulative impacts of the project; (2) the EIS relied on inaccurate information; (3) the EIS failed to identify and analyze all reasonable alternatives; and (4) FHWA inadequately responded to comments by EPA and the public. (Compl.¶¶ 117-18, 120-121, 124-26, 129-131.) The Court will address each of these arguments to determine whether the alleged deficiencies, or a combination of deficiencies, are sufficient to warrant holding the EIS legally inadequate. Churchill, 276 F.3d at 1071.

A. Inadequate Impacts Analysis (Count 1)

1. Induced Growth

Sierra Club argues the FEIS failed to adequately discuss the proposed project’s potential to induce growth in the northwest region of Las Vegas. The FEIS discussed at length land use and zoning issues. (AR 30-14661-30-14709.) The FEIS discussed existing plans for master planned communities and other land uses in the area. (AR 30-14661-30-14670.) The FEIS also explored city and county growth plans and zoning regulations and patterns. (AR 30-14670-30-14694.) In addition to identifying current and anticipated land use and zoning, the FEIS discussed direct and indirect impacts from the proposed project, including “induced” or “accelerated development impacts.” (AR 31-14815-31-14820.)

Mere disagreement with the FEIS’s substantive conclusions regarding the proposed project’s impacts on induced growth is not a basis for overturning an agency decision under NEPA and the APA. See Friends of the Clearwater v. Dombeck, 222 F.3d 552, 561 (9th Cir.2000) (noting that even if a court disagrees with an agency decision, the court cannot substitute its judgment for that of the agency). Rather, the Court must decide whether the agency has taken the requisite “hard look” at the environmental impacts of the proposed project. Muckleshoot Indian Tribe, 177 F.3d at 814. The Court finds that the FEIS’s discussion of induced and accelerated growth impacts was reasonably thorough.

2. Induced Travel

Sierra Club next argues the FEIS did not adequately address induced travel. According to various studies, increased highway capacity attracts increased levels of vehicle traffic. (AR 34-16582; 34-16627; 34-16646.) Induced travel occurs when the supply of available highway space lowers the cost of travel, particularly in terms of time, thereby inducing travelers to take trips they otherwise would not take because of the concomitant costs. (AR 34-16585.) Failure to account for induced travel when making transportation decisions may lead agencies to select projects which provide no relief from congestion combined with increased adverse impacts to air quality. (AR 34-16599-34-16603; 34-16635; 34-16662-34-16663.)

According to FHWA, the traffic forecasting model used in the EIS, TRAN-PLAN, accounted for most induced travel impacts, such as route changes and changes in the time of day trips are taken. FHWA concedes some induced travel impacts remain unaccounted for in the FEIS: “It is only new trips made in direct response to a perceived reduction in congestion that is not accounted for by TRAN-PLAN.” (Fed. Defs.’ Reply in Supp. of Mot. for Summ. J. at 6.) FHWA contends the portion of induced travel for which TRANPLAN does not account is “an indeterminate, but relatively small, component” of induced travel effects and that current models cannot accurately capture this phenomenon. (Id.)

The FEIS includes within its calculations most induced travel effects, but it does not explicitly mention induced travel, nor does it explain that its traffic forecasting model accounts for some, but not all, induced travel impacts. Furthermore, even if the portion of induced travel for which TRANPLAN does not account is small, the FEIS states that even “minor changes in forecast traffic distributions .. and other model inputs could result in differences in predicted [carbon monoxide] concentrations.” (AR 32-15259.) Thus, even a small impact from the unaccounted for induced travel could result in increased carbon monoxide emissions. Because EPA has designated Las Vegas as a serious nonattainment area for carbon monoxide, failure to account for such impacts may underestimate the environmental and attendant health impacts associated with the proposed project.

Nevertheless, the Court finds the FEIS’s treatment of induced travel effects is a reasonably thorough analysis. The FEIS considered nearly all induced travel effects. The portion not considered is the subject of scientific debate, and current models vary in their calculations to quantify induced travel effects. (AR 34-16580-34-16624; 34-16625-34-16641; 34-16643-34-16676; 34-16704.) As the EPA recognized in its comments on the DEIS, “the tools to analyze induced travel are not fully developed at this time.” (AR 31-15191 [requesting FHWA perform a “preliminary assessment” of induced travel impacts for the proposed project].). Consequently, FHWA included a reasonably thorough evaluation of induced travel effects based on the information and modeling techniques available to the agency at that time.

The Court finds that even if the FEIS’s discussion of induced travel impacts was not reasonably thorough, the Court finds the scope of that failure insufficient to render the entire FEIS inadequate. Given the significant environmental and air quality improvements between the proposed project and the “no build” alternative, the FEIS’s omission of this fraction of potential induced travel effects, which could be ascertained, if at all, only through uncertain modeling techniques, did not preclude informed decision-making and informed public participation in this instance.

3. Adverse Health Impacts

Sierra Club next argues the EIS failed to fully analyze the proposed project’s effects on air quality and health. In particular, Sierra Club argues the EIS should have evaluated health effects from mobile source air toxics (“MSAT”) and fine particulate matter (PM2.5).

As to MSATs, the Court concludes this issue is addressed more appropriately under Sierra Club’s claim FHWA violated NEPA by failing to prepare a SEIS in response to new information. When the FEIS was issued, EPA had not identified MSATs as a health risk nor assigned a unit risk factor for MSATs. Not until March 2001 did EPA publish a rule identifying MSATs and characterizing them as known or suspected carcinogens. See Control of Emissions of Hazardous Air Pollutants From Mobile Sources, 66 Fed.Reg. 17230 (Mar. 29, 2001). In addition to EPA’s recent formal statement on the subject, Sierra Club has identified recently published studies suggesting a link between MSATs and cancer. Because the MSAT issue appears to revolve around new information developed after the FEIS, the Court will review Sierra Club’s MSAT claim under Count 5, failure to prepare a SEIS.

In contrast, the FEIS acknowledged EPA had issued NAAQS guidelines for PM2.6. (AR 30-14724.) But the FEIS declined to analyze PM2.5 impacts because EPA had not yet designated Las Vegas as a nonattainment area. (Id.) According to FHWA, because the EPA had not completed background monitoring and had not designated Las Vegas a nonattainment area, the EIS did not need to evaluate PM2.6 impacts.

FHWA’s decision not to further study the effects of PM2.5 on a project specific scale was not arbitrary and capricious. At the time of the ROD in January 2000, EPA had not completed background monitoring in Las Vegas, had not designated Las Vegas as a nonattainment area for PM2.5, had not identified approved modeling techniques for PM2.6, and had not issued guidance on implementing the PM2,6 NAAQS. Not until April 2003 did EPA issue regulations advising agencies on models available to use for PM2.5 evaluations. See 40 C.F.R. Pt. 51, App. W, 68 Fed.Reg. 18448 (Apr. 15, 2003). And only as of February 2004 has EPA issued policy guidance on the MOBILE6.2 model for modeling PM2 5. See http://www.epa.gov/otaq/models/mo-bile6Anobil6.2_letter.pdf. at 1 (EPA policy guidance on MOBILE6.2 model). Even this guidance is only for state implementation plan and conformity analyses, not NEPA evaluations of project-specific impacts. (Id.) As of this date, EPA still has not classified Las Vegas as a nonattainment area for PM2.5. EPA also “has not yet finalized implementation policy for the PM2 6 National Ambient Air Quality Standards (NAAQS).” Id. at 11.

FHWA does not act arbitrarily and capriciously by not evaluating a project-specific impact for which the then-current scientific modeling and available information could not provide meaningful findings on which to base a decision. See Dubois v. U.S. Dept. of Agriculture, 102 F.3d 1273, 1286 (1st Cir.1996) (“An environmental effect would be considered ‘too speculative’ for inclusion in the EIS if it cannot be described at the time the EIS is drafted with sufficient specificity to make its consideration useful to a reasonable decision-maker.”). The Court therefore will grant summary judgment on Count 1 in favor of Defendants.

B. Reliance on Inaccurate Information (Count 2)

Sierra Club next argues the EIS relied on inaccurate population and traffic forecasts in performing modeling and projection analyses. In commenting on the DEIS, the EPA noted “growth projections have historically been grossly underestimated,” and “[sjmall changes in model assumptions would easily eliminate the projected air quality benefits.” (AR 30-14264; 30-14268.) During the various MIS and EIS comment periods, citizens and Sierra Club also questioned FHWA’s reliance on population forecasts well below other state agencies’ projections. (AR 09-04308; 09-04325-09-04326; 32-15684; 33-16215; 34-16447.) FHWA responded that it was relying on the RTC’s population and traffic forecasting in the RTC’s modeling program TRANPLAN. (AR 32-15247.)

FHWA’s reliance on the RTC’s population and traffic forecasts was not arbitrary or capricious. 5 U.S.C. § 706(2)(A). The RTC is the designated metropolitan planning organization (“MPO”) for the Las Vegas area. 23 U.S.C. § 134(b). As the MPO, the RTC is responsible for developing transportation plans “to encourage and promote the safe and efficient management, operation, and development of surface transportation systems that will serve the mobility needs of people and freight and foster economic growth and development within and through urbanized areas, while minimizing transportation-related fuel consumption and air pollution.” Id. § 134(a)(1). The RTC also is responsible for developing a transportation improvement plan, which must be updated at least every two years. 23 C.F.R. § 450.324. To carry out these responsibilities, the RTC uses TRANPLAN, a traffic forecasting model. (AR 32-15247.) TRANPLAN is updated as new information on population, land use, and other information becomes available. (Id.)

RTC is a government entity charged with developing transportation plans based on forecasted needs in the area. Although some citizen and agency -comments suggested RTC historically underestimates growth, FHWA’s reliance on figures produced by a state governmental entity statutorily charged with developing state transportation plans based on projected need is not arbitrary or capricious. See Stop H-3 Ass’n v. Dole, 740 F.2d 1442, 1464-65 (9th Cir.1984) (FHWA reasonably relied on older population projections despite updates where EIS examined a range of populations and explained reasons for selecting population projections used in EIS); Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 442 (5th Cir.1981) (upholding EIS’s reliance on disputed population projections because population projection is uncertain and “a conflicting projection does not prove the invalidity of another projection”). Consequently, the Court will grant summary judgment in favor of Defendants on Count 2.

C. Inadequate Alternatives Analysis (Count 3)

Sierra Club next argues the EIS failed to consider all reasonable alternatives. Specifically, Sierra Club questions FHWA’s decision to omit a fixed guideway alternative from the alternatives analysis. FHWA responds that the EIS did not need to consider a fixed guideway alternative because the MIS process properly rejected that alternative. FHWA also argues Sierra Club waived this claim. (Fed. Defs.’ Response to Pl.’s Mot. For Summ. J. at 15 n. 6.) This Court previously denied Defendants’ motion to dismiss Sierra Club’s Complaint based on laches. Sierra Club v. U.S. Dept. of Transp., 245 F.Supp.2d 1109 (D.Nev.2003). Defendants nevertheless argue Sierra Club’s claim regarding the fixed guideway should be dismissed because the factors that led this Court to deny the motion do not apply to the fixed guideway claim.

Whether the EIS failed to consider a reasonable alternative should have been apparent to Sierra Club at the time the EIS was issued. Sierra Club’s failure to challenge this aspect of the EIS until over two years after the ROD is troubling. Sierra Club contends that the studies it commissioned could inform and affect the weighing of alternatives by making a fixed guideway a more compelling alternative once all environmental impacts are taken into consideration. Sierra Club also appears to argue, however, that even in the absence of these later studies, the EIS improperly failed to consider a reasonable alternative from the outset. Athough the Court rejects Sierra Club’s argument that FHWA’s decision to omit a fixed guideway alternative from the alternatives analysis renders the EIS inadequate, the Court also is persuaded that at this late stage of the highway construction process, Sierra Club’s arguments in this regard should not be given much weight because Sierra Club failed to specifically seek relief on this particular ground at the time these proceedings were initiated.

The MIS process, which preceded the EIS, considered three basic alternatives, the US-95 Improvement Strategy, the Desert Inn/Rainbow Super Arterial Strategy, and the Fixed Guideway Strategy. Each alternative consisted of numerous projects aimed at improving mobility and increasing transportation capacity.

The US-95 Improvement Strategy proposed widening US-95 from six to ten lanes from Rainbow Boulevard to the I-15/US-95 interchange. (AR 02-00930.) The Strategy also proposed widening US-95 from four to six lanes from Craig Road to Rainbow Boulevard. (Id.) Additionally, the Strategy proposed widening Summer-lin Parkway to six lanes. (Id.) The MIS estimated widening the freeway would create additional capacity of 12,000 person trips per hour. (AR 02-00963.) In conjunction with other strategies such as bus service, HOY lanes, arterial street improvements, a freeway management system, and transportation demand management measures, the MIS projected the US-95 Improvement Strategy would accommodate 30,000 additional person trips per hour. (AR 03-01092.) The MIS estimated overall costs ranging from approximately $440 million to $446 million depending on whether the freeway was expanded to the north or south. (AR 03-01097.) The report also considered double decking US-95 to achieve the same capacity as widening but at an estimated cost of $786 million. (Id.) Although fewer homes would have to be taken, existing homes would suffer visual and noise impacts, and construction on the freeway would be impacted significantly. (AR 02-00967.)

The Rainbow/Desert Inn Super Arterial Strategy proposed creating super arterial corridors along Rainbow Boulevard and Desert Inn Road. (AR 02-00984.) This alternative would provide additional estimated capacity of approximately 7,800 person trips per hour. (AR 03-01002.) In conjunction with arterial street improvements, enhanced bus service, a freeway management system, and transportation demand management measures, the Super Arterial Strategy would provide 28,800 additional person trips per hour. (AR 03-01103.) At an estimated cost of about $677 million, the Super Arterial Strategy would result in a large number of takings as well as relocation of parking at Cash-man Middle School. (AR 03-01103; 03-01105-03-01106.)

The Fixed Guideway Strategy proposed constructing a fixed guideway system, such as elevated light rail, from the Resort Corridor to various points in the northwest. (AR 03-01003.) To be effective, a fixed guideway in the northwest would need to connect to a fixed guideway system providing trips internally within the Resort Corridor. (Id.) At the time of the MIS, the RTC had adopted a conceptual plan for a fixed guideway in the Resort Corridor as the locally preferred alternative following a separate Major Investment Study conducted for the Resort Corridor. (Id.) The MIS considered three alternative routes for the fixed guideway alignments into the northwest. (AR 03-01003-03-01024.) The MIS expected the fixed guideway would generate demand of 5,000 riders per hour during the peak hours. (AR 03-01024.) Athough estimating a demand of only 5,000 riders per hour, the MIS determined the fixed guideway’s capacity could be much greater:

The system capacity would be substantially greater than the capacity required to accommodate peak hour demand. By adding more trains to the system, the total capacity of the system could be increased to meet travel demands beyond the year 2015. For example, 25 trains operating at 2jé minute intervals would be able to accommodate nearly 18,000 passengers per hour in the peak direction. Therefore, it may be concluded that the Fixed Guideway System would be able to accommodate future travel demand way beyond the 20 year planning horizon.

(AR 03-01024.) In conjunction with enhanced bus service, arterial street improvements, a freeway management system, and transportation demand management measures, the MIS projected the Fixed Guideway Strategy would result in an additional 26,000 person trips per hour. (AR 03-01099.) The report estimated the Fixed Guide-way Strategy would cost $770 to $834 million depending on the chosen alignment. (Id.)

In addition to evaluating capacity, benefits, and cost, the MIS conducted a “preliminary environmental screening.” The MIS makes clear, however, that it “does not provide a detailed analysis of potential environmental impacts from each alternative,” and “is intended for comparison purposes only.” (AR 03-01106.) The MIS also states elements “common to all strategies, such as arterial street improvements, were not examined since they will be assessed in subsequent environmental documentation.” (Id.)

The preliminary environmental screening compared each strategy as it would impact natural resources; cultural resources; parks, schools, and recreational facilities; air quality; noise; aesthetics; and hazardous materials. (AR 03-01106-03-01113.) The MIS estimated that by the year 2015, the US-95 Improvements Strategy would reduce carbon monoxide emissions by up to 235 tons per year, the Super Arterial Strategy by up to 549 tons per year, and the Fixed Guideway Strategy by up to 2,978 tons per year. (AR 03-01111.) The MIS also projected that by 2015, the US-95 Improvements Strategy would reduce vehicle miles traveled by approximately 9.4 million, the Super Arterial Strategy by about 21 million, and the Fixed Guideway Strategy by approximately 119 million. (Id.)

Following a comparison of these alternatives, the MIS approved a locally preferred alternative consisting of a modified version of the US-95 Improvements Strategy. (AR 03-01124.) The locally preferred alternative consisted of widening US-95, implementing a freeway management system, improving arterial street connections, adopting enhanced bus service, and employing transportation demand management measures. (Id.) The MIS rejected the Super Arterial Strategy because of its “relatively high cost for limited increased capacity and the high level of impacts .CAR 03-01130.) The MIS rejected the Fixed Guideway Strategy because it did not meet the project’s purpose and need, was too costly, and was dependent upon a fixed guideway in the Resort Corridor, the construction of which was uncertain at that time. (AR 03-01130.)

The EIS ultimately did not consider either the Super Arterial or Fixed Guideway Strategies. Instead, it considered two alternatives that would widen US-95 and the “no-build” alternative.

NEPA requires the EIS to discuss alternatives to the proposed action. 42 U.S.C. § 4332(2)(C)(iii). CEQ regulations describe the alternatives analysis as “the heart of the environmental impact statement.” 40 C.F.R. § 1502.14. The alternatives analysis “present[s] 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 by the decisionmaker and the public.” Id. An EIS must “Vigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.” Id. § 1502.14(a).

“Project alternatives derive from an Environmental Impact Statement’s ‘Purpose and Need’ section, which briefly defines ‘the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.’ ” City of Carmel-By-The-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1155 (9th Cir.1997) (quoting 40 C.F.R. § 1502.13). Thus the stated goal of a project dictates the range of “reasonable” alternatives. Id. Because the purpose and need defines the range of alternatives, an agency “cannot define its objectives in unreasonably narrow terms.” Id.

Although an agency must consider all reasonable alternatives, the agency need not include “ ‘every alternative device and thought conceivable.’ ” Greenbelt, Inc. v. U.S. Dept. of Transp., 42 F.3d 517, 525 (9th Cir.1994) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 551, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) (internal quotation omitted)). The range of alternatives is “ ‘bounded by some notion of feasibility.’ ” Id. at 524, 98 S.Ct. 1197 (quoting Vermont Yankee, 435 U.S. at 551, 98 S.Ct. 1197). Neither NEPA nor its implementing regulations require an EIS to discuss a minimum number of alternatives. Id.

CEQ regulations mandate federal and state cooperation “to the fullest extent possible to reduce duplication between NEPA and State and local requirements, including joint planning, environmental research and studies, public hearings, and environmental assessments.” 40 C.F.R. § 1506.2(b). Accordingly, a federal agency does not violate NEPA by relying on prior studies and analyses performed by local and state agencies. See Laguna Greenbelt, 42 F.3d at 524 n. 6 (“[T]he absence of a more thorough discussion in the EIS of alternatives that were discussed in and rejected as a result of prior state studies does not violate NEPA.”); see also North Buckhead Civic Ass’n v. Skinner, 903 F.2d 1533, 1542-43 (11th Cir.1990) (finding federal reliance on state and local assistance in NEPA process was not arbitrary and capricious).

FHWA’s reliance on the MIS process to eliminate alternatives from the EIS was not arbitrary and capricious. The EIS did not consider in depth a fixed guideway alternative because the MIS process evaluated that alternative and found it did not meet the project’s purpose and need, was too costly, and depended upon an uncertain RCFG. The MIS contained many of the hallmarks of the NEPA process, including various studies on project impacts, significant public involvement, and a comparison of alternatives. (AR 01-00050; 01-00048-01-00113; 01-00117-01-00142; 01-00184-01-00419; 01-00420-02-00776; 04-01651-04-02033; 05-02034-05-02458 (scientific studies); AR 01-00184-01-00419, 01-00420-02-00776, 04-01651-04-02033, 05-02034-05-02458 (public involvement); AR 03-01092-03-01117 (comparison of alternatives).) FHWA’s decision not to duplicate the state agencies’ analyses and evaluations as to what alternatives would be feasible and meet project goals does not violate NEPA.

Sierra Club’s reliance on Kern v. U.S. Bureau of Land Management, 284 F.3d 1062 (9th Cir.2002) to argue FHWA cannot rely on state processes is misplaced. Kern did not involve a federal agency’s reliance on prior state activities. Kern involved “tiering,” a method by which a site specific EIS prepared within a broad program need only summarize and incorporate by reference the issues discussed in the broader statement. Id. at 1073. CEQ regulations expressly permit tiering “to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review.” 40 C.F.R. § 1502.20. While the regulations encourage tiering, an agency may not tier to a document that has not itself been subject to NEPA review. Kern, 284 F.3d at 1073. Consequently, Kern held that “[although CEQ procedures allow agencies to incorporate by reference certain materials to cut down on the bulk of an EIS, they cannot ‘tier’ their site-specific EISs to [a] broader [ ] program where the program itself has not been subject to NEPA procedures.” Id.

Kern does not prohibit federal agencies from relying on state precursor activities to a site specific EIS. Indeed, CEQ regulations mandate such cooperation to reduce duplicative efforts between state and federal agencies. Because FHWA’s rebanee on the MIS was not arbitrary and capricious, the Court will grant summary judgment in favor of Defendants on Count 3.

D. Inadequate Response to Public Comments (Count 4)

Sierra Club asserts FHWA failed to respond adequately to public and EPA comments on: (1) the proposed project’s ability to meet project goals; (2) induced travel impacts; and (3) public health risks created by the project. (Compl.¶¶ 1129-131.)

CEQ regulations require a federal agency preparing a FEIS to “assess and consider comments both individually and collectively, and [ ] respond” to those comments in the FEIS. 40 C.F.R. § 1503.4. The agency may respond by modifying alternatives included in the proposed action; developing and evaluating alternatives not previously considered in depth; supplementing, improving, or modifying its analyses; making factual corrections; and/or explaining “why the comments do not warrant further agency response, citing the sources, authorities, or reasons which support the agency’s position and, if appropriate, indicat[ing] those circumstances which would trigger agency reappraisal or further response.” Id.

An agency need not publish every comment in the FEIS, but an agency must provi