Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION PREGERSON, District Judge. The plaintiffs’ motion for preliminary injunction came before the Court for oral argument on November 17, 1998 and July 1, 1999. After reviewing and considering the materials submitted by the parties and hearing oral argument, the Court grants in part and denies in part the motion for preliminary injunction. BACKGROUND The plaintiffs are the City of South Pasadena (“South Pasadena”), the National Trust for Historic Preservation, the Sierra Club, the California Preservation Foundation, the Los Angeles Conservancy, the Pasadena Heritage, the South Pasadena Preservation Foundation, and the South Pasadena Unified School District. The defendants are the United States Secretary of Transportation Rodney E. Slater, the Federal Highway Administrator Kenneth R. Wykle, the Federal Highway Administration (“FHWA”), the Director of the Cab ifornia Department of Transportation Jose Medina, and the California Department of Transportation (“Caltrans”). The plaintiffs seek to enjoin the extension of the 710 Freeway through Los An-geles, South Pasadena, and Pasadena. The 710 Freeway begins in Long Beach and continues northward intersecting the 10 Freeway. It ends shortly thereafter as it leaves Alhambra to enter Los Angeles. It then resumes about a quarter of a mile south of the 210 Freeway in Pasadena where it terminates upon reaching the 210 Freeway. The defendants seek to extend the 710 Freeway a distance of 4.5 miles in order to connect both segments. This extension is known as the “710 Freeway Project.” The project has a long history. In 1964, Caltrans proposed what is known as the “Meridian Route” for the 710 Freeway Project. This route closely followed Meridian Avenue. In January 1973, the City of South Pasadena filed suit in this Court against the current defendants’ predecessors because they had approved the 710 Freeway Project without preparing an environmental impact statement (“EIS”). The Honorable Judge E. Avery Crary issued an injunction mandating that the defendants prepare an EIS. Caltrans abandoned the Meridian Route between 1977 and 1981, focusing instead on a proposal to extend the 110 Freeway 1.5 miles to the north to connect with the 210 Freeway. The FHWA, however, rejected the 110 Freeway extension. In 1982, Caltrans revived the Meridian Route and secured state approval in 1984. In 1983 and 1984 the Advisory Council on Historic Preservation (‘Advisory Council”), a federal agency, suggested that because of the impact on historical resources, the FHWA should adopt a “no-build” alternative. This was rejected. In 1986, Caltrans circulated a draft EIS proposing a modified route, the “Meridian Variation.” In April 1991, South Pasadena requested that the defendants evaluate a “low-build” alternative. On March 2, 1992, Caltrans released the final EIS (“FEIS”) for the Meridian Variation. In 1992, after the FEIS was signed, the FHWA convened the “Enhancement and Mitigation Advisory Committee” to address the concerns parties had with the Meridian Variation and minimize harms associated with the freeway extension. In January 1993, the Advisory Council referred the 710 Freeway Project controversy to the President’s Council on Environmental Quality (“CEQ”). CEQ determined that the FHWA needed to conduct additional evaluations of the project’s impacts on historical resources and that the FHWA needed to develop and analyze a low-build alternative. In September 1993, South Pasadena developed a low-build alternative to the 710 Freeway Project known as the “Multi-Mode Low-Build Alternative” (“MMLB”). In November 1995, the Keeper of the National Register of Historic Places determined that the Short Line Villa Tract Historic District in El Sereno was eligible for the National Register. The Meridian Variation traversed this district. In response, Caltrans announced that it would shift the proposed route to avoid the district by 15 feet. This was known as the Berkshire Shift. In December 1995, the Department of the Interior (“DOI”) withdrew its concurrence to the project. The DOI stated that a supplemental EIS (“SEIS”) was appropriate and necessary before the final decision was made. The defendants have not produced an SEIS. In 1996, Caltrans studied the MMLB in a report entitled “State Route 710: A Model Evaluation of the City of South Pasadena’s Multi-Mode Low Build Proposal.” The report concluded that the MMLB was unsatisfactory because it would not meet the project’s purpose and need. In late 1997, Caltrans and the federal defendants modified the freeway route. This route is known as the “Depressed Meridian Variation Alternative Reduced with Shift Design Variation,” which is the subject of this dispute. In March 1998, the Environmental Protection Agency (“EPA”) and the Advisory Council announced their objections to the route. They asserted that the defendants should conduct an SEIS and should “honestly” consider a low-build alternative. On April 13, 1998, the Secretary of Transportation, Rodney Slater, authorized the issuance of a federal Record of Decision (“ROD”) approving the project. The ROD is the final administrative decision which represents that the government has complied with all statutory requirements and allows the project to be built. The ROD places limits on the defendants, imposes conditions on the use of federal funds, and requires the defendants to conduct an SEIS and certain feasibility studies. The ROD modified the final route by adding one additional cut-and-cover tunnel in the El Sereno neighborhood of Los Angeles. The ROD provided that if this tunnel is found to be infeasible then the ROD will be null and void. The ROD is binding on the federal defendants, but not on the California defendants. At oral argument, the attorney for the California defendants stated that the prior Caltrans director was committed to the ROD’s terms. However, the California defendants were unable to represent that the commitment would continue given the election of a new administration. The defendants submitted the full administrative record on May 10,1999. The plaintiffs seek a preliminary injunction preventing future planning and monetary expenditures, and imposing certain requirements on the defendants. The plaintiffs claim that the defendants violated three federal statutes in developing the 710 Freeway Project: Section 4(f) of the Department of Transportation Act, the National Environmental Policy Act, and the Clean Air Act. DISCUSSION I. Legal standard for preliminary injunctions Within the Ninth Circuit a court may issue a preliminary injunction if the moving party meets one of two alternative tests. See International Jensen, Inc. v. Metrosound U.S.A., 4 F.3d 819, 822 (9th Cir.1993). In the first test the moving party must demonstrate: “(1) the moving party will suffer irreparable injury if the relief is denied; (2) the moving party will probably prevail on the merits; (3) the balance of potential harm favors the moving party; and, depending on the nature of the case, (4) the public interest favors granting relief.” Id. Alternatively, the moving party may demonstrate either “(1) a combination of probable success on the merits and the possibility of irreparable injury if relief is not granted; or (2) the existence of serious questions going to the merits and that the balance of hardships tips sharply in its favor.” Id. These standards “are not separate tests, but the outer reaches of a single continuum.” Id. II. Whether the defendants complied with Section 4(f) of the Transportation Act A. Introduction and Standard of Review The issue here is whether the Secretary of Transportation (“the Secretary”) complied with Section 4(f) of the Department of Transportation Act (“DOTA”), 49 U.S.C. § 303(c). The purpose of Section 4(f) is to protect the natural beauty and availability of parks and other environmental and historic resources. 49 U.S.C. § 303(a); see also Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), overruled on other unrelated grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) (discussing purposes of Section 4(D). Section 4(f) states that “the Secretary ‘shall not approve any program or project’ that requires the use of any [Section 4(f) resource] ‘unless (1) there is no feasible and prudent alternative to the use of such land, and .(2) such program includes all possible planning to minimize harm to such [resources].’ ” Overton Park, 401 U.S. at 411, 91 S.Ct. 814, quoting 23 U.S.C. § 138; 49 U.S.C. § 1653(f) (now codified at 49 U.S.C. § 303). Section 4(f) is “a plain and explicit bar to the use of federal funds for construction of highways [which use Section 4(f) resources] — only the most unusual situations are exempted.” Id. The Supreme Court has defined “no feasible alternative” to mean that “the Secretary [of Transportation] must find that as a matter of sound engineering it would not be feasible to build the highway along any other route.” Id. The Supreme Court has defined “no prudent alternative” to mean that the Secretary must “find[ ] that alternative routes present unique problems.” Id. at 412, 91 S.Ct. 814. The Ninth Circuit explained Overton Park’s definition of a “feasible and prudent alternative” by stating that Section 4(f) resources “may be ‘used’ for highway purposes only if ‘there [are] truly unusual factors present in [the] case,’ if ‘feasible alternative routes involve uniquely difficult problems,’ or if ‘the cost or community disruption resulting from alternative routes [reach] extraordinary magnitudes.’ ” Stop H-3 Ass’n v. Dole, 740 F.2d 1442, 1449 (9th Cir.1984), quoting Overton Park, 401 U.S. at 413, 416, 91 S.Ct. 814. This Court is called upon to review the propriety of the Secretary’s decision to approve a ROD calling for the use of Section 4© resources. This Court must affirm the Secretary’s decision unless the decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(1)(A); Stop H-3, 740 F.2d at 1449. Pursuant to the Administrative Procedure Act the Court is required to consider whether: 1. The Secretary acted within the scope of his authority.... 2. The Secretary properly construed his authority to approve the use of [Section 4© resources] as limited to situations where none of the alternatives to such use are feasible and prudent. 3. The Secretary could have reasonably believed that in the case under review there are no feasible and prudent alternatives. 4. The Secretary’s decision was based on a consideration of the relevant factors. 5. The Secretary made a clear error of judgment. 6. The Secretary’s action followed the necessary procedural requirements. Stop H-3, 740 F.2d at 1449. Additionally, although “the Secretary’s decisions are entitled to a presumption of regularity, that presumption does not ‘shield his aetion[s] from a thorough, probing, in-depth review.’ ” Id., quoting Overton Park, 401 U.S. at 415, 91 S.Ct. 814. The Court must also review the full administrative record. Id. at 1450. B. Whether the defendants complied with Section í(f) The parties disagree on the number and nature of Section 4(f) resources affected by the 710 Freeway Project. (See infra Part II-B-3.) The defendants claim that there are 27 Section 4(f) resources in the Corridor. The plaintiffs claim that there are several hundred historic resources in the Corridor. The plaintiffs contend that the defendants have committed four violations of Section 4(f). First, the plaintiffs argue that the defendants failed to properly analyze the MMLB as an alternative to the 710 Freeway Project. Second, the plaintiffs argue that the defendants failed to properly consider whether the 710 Freeway Project will constructively use Section 4(f) resources. Third, the plaintiffs argue that the defendants did not include certain sites of state or local historic significance as being Section 4(f) resources. The plaintiffs argue that the defendants omitted these sites pursuant to a regulation that conflicts with Section 4(f). Fourth, the plaintiffs argue that the defendants failed to cure the objections of the EPA, the DOI, and the Advisory Council. 1. Whether the defendants failed to properly analyze the MMLB As discussed earlier, South Pasadena developed an alternative transportation plan for the Corridor known as the MMLB. Caltrans rejected the MMLB in a report entitled “State Route 710: A model evaluation of the City of South Pasadena’s Multi-Mode Low Build Proposal” (“Caltrans MMLB Report”). Caltrans rejected the MMLB because it would use Section 4(f) resources and would not meet the 710 Freeway Project’s purpose and need. The plaintiffs argue that the defendants failed to properly evaluate the MMLB and that they relied on impermissible and biased criteria which was designed to hold that the MMLB would not meet the project’s purpose and need. See 40 C.F.R. § 1502.14 (stating EIS must “[rjigorously explore and objectively evaluate all reasonable alternatives”). The plaintiffs point to statements made by the EPA in a letter to the FHWA’s regional administrator. The EPA noted that “[i]t is unrealistic to evaluate a non highway (Low Build) alternative against a set of highway oriented criteria and eliminate it because it doesn’t show a significant benefit for highway trips.” (Administrative Record (“AR”) 128:98-985.) The EPA stated it was “concerned that Caltrans and the FHWA did not find merit in proposing modifications to South Pasadena’s proposal that would establish what both agencies could consider a feasible alternative that meets the Purpose and Need of relieving congestion and providing transportation improvements.” (AR 128:98-985.) Finally, the EPA noted that the defendants “apparently never ... attempted] to develop other transportation segments, or undertake changes in the local infrastructure, modifying the original South Pasadena recommendations.” (AR 128:98-985.) The plaintiffs contend that the EPA’s comments support a finding that Cal-trans’s analysis of the MMLB is flawed for three reasons. First, the Caltrans MMLB Report used criteria “slanted” in favor of building a freeway. Second, the MMLB substantially meets the transportation needs within the Corridor. Third, the Cal-trans MMLB Report is based on invalid assumptions designed to discredit the MMLB and favor the 710 Freeway Project. The defendants assert that the EPA and the DOI are not the agencies responsible for making transportation decisions and that the defendants are obligated to seriously consider their comments, but the defendants need not adopt them. Further, the defendants assert that they properly evaluated the MMLB and rejected it because it would use Section 4(f) resources and would not meet the project’s purpose and need. a. The use of Section Mf) resources and whether the MMLB is feasible and prudent The defendants rejected the MMLB, in part, because it, like the 710 Freeway Project, would also use Section 4(f) resources. The MMLB will require building a new on-ramp for the 110 Freeway at Fair Oaks Boulevard. The 110 Freeway (Pasadena Freeway) is a Section 4(f) resource. The defendants argue that they may reject the MMLB because both the MMLB and the 710 Freeway Project will use Section 4(f) resources. The defendants are incorrect. The appropriate inquiry is to consider the extent to which each alternative uses Section 4(f) resources. Druid Hills Civic Ass’n, Inc. v. Federal Highway Admin., 772 F.2d 700, 716 (11th Cir.1985). The Druid Hills court stated: Section 4(f)(2) imposes the duty to utilize all possible planning to minimize harm to parks and historic sites before the Secretary can approve a route using Section 4(f) property. Relocation of the highway through another portion of the Section 4(f) area or through other Section 4(f) properties must be considered as a means of minimizing harm.... [Sjection 4(f)(2) requires a simple balancing process which totals the harm caused by each alternate route to Section 4(f) areas and selects the option which does the least harm. The only relevant factor in making a determination whether an alternative route minimizes harm is the quantum of harm to the park or historic site caused by the alternative. Considerations that might make the route imprudent, e.g., failure to satisfy the project’s purpose, are simply not relevant to this determination. If the route does not minimize harm, it need not be selected. The Secretary is free to choose among alternatives which cause substantially equal damage to parks or historic sites. ... [T]he Secretary does not have to accept an alternate route which causes less harm to parks and historic sites. Rather, the court construed Section 4(f)(2) to mean that the route must also be feasible and prudent. Thus, a route that does minimize harm can still be rejected if it is infeasible or imprudent. The determination whether the route is infeasible or impnident is based on factors other than the route’s impact on Section 4(f) areas. Id. (internal citations omitted). The critical question is whether the MMLB is feasible and prudent. Stop H-3, 740 F.2d at 1447. If a feasible and prudent alternative minimizes the use of Section 4(f) resources then that alternative must be chosen. Druid Hills, 772 F.2d at 716; Stop H-3, 740 F.2d at 1447. The Ninth Circuit has defined “feasible” to mean “that the alternative [here, the MMLB] must be able to be built as a matter of sound engineering.” Id. at 1449 n. 11. The Ninth Circuit has stated that alternatives are imprudent only where “ ‘there [are] truly unusual factors present in [the] case,’ if ‘feasible alternative routes involve uniquely difficult problems,’ or if ‘the cost or community disruption resulting from alternative routes [reach] extraordinary magnitudes.’ ” Id. at 1449, quoting Overton Park, 401 U.S. at 413, 91 S.Ct. 814. In short, there are three key inquiries concerning the defendants’ analysis of the MMLB. First, does the MMLB use Section 4(f) • resources. Second, does the MMLB minimize the use of Section 4(f) resources. Third, is the MMLB feasible and prudent. i. Whether the MMLB uses Section Mf) resources and whether the MMLB minimizes the use of Section 1(f) resources The defendants argue that the MMLB would use a portion of the historic 110 Freeway by adding a northbound on-ramp at Fair Oaks Boulevard. The plaintiffs argue that placing this on-ramp is not a use because the on-ramp will not adversely affect the 110 Freeway’s historic qualities. The plaintiffs cite to several federal regulations holding that certain minor changes to historic transportation facilities do not constitute the use of Section 4(f) resources. See, e.g., 23 C.F.R. §§ 771.135(f), (p)(5)(i). To come within this regulation, the plaintiffs must show that the on-ramp is either a “restoration, rehabilitation, or maintenance” of a transportation facility and that the on-ramp would not affect the 110 Freeway’s eligibility under Section 4(f). The defendants argue that the on-ramp will constitute a use because adding the on-ramp is not a restoration, rehabilitation, or maintenance of the freeway. The Court agrees with the defendants. Adding this on-ramp does not appear to fall within the plain meaning of “restoration, rehabilitation, or maintenance.” Therefore, the Court finds that the MMLB does use a Section 4(f) resource. The second question is whether the MMLB uses fewer Section 4(f) resources than the 710 Freeway Project. The plaintiffs have made a strong showing that the MMLB will significantly minimize the use of Section 4(f) resources. The MMLB uses one Section 4(f) resource. The defendants concede that the 710 Freeway Project would use substantially more Section 4(f) resources, including the 110 Freeway. (AR 129:98-1794-98-1798 (Final 4(f) Evaluation).) Following the quantitative analysis mandated by Druid Hills, the Court concludes that the plaintiffs have shown a strong likelihood of proving that the MMLB minimizes harm to Section 4(f) resources. ii. Whether the MMLB is feasible and prudent The last question is whether the MMLB is feasible and prudent. The ROD stated that the MMLB was not feasible and prudent because: 1. This plan would not provide through north-south freeway service; 2. Regionally, this plan would not efficiently connect two east-west interstate routes; 3. This plan would not provide an HOV [High Occupancy Vehicle — Carpool lane] link within the existing HOV network; 4. This plan has not been included on the [Southern California Association of Governments (“SCAG”)] 1994 Regional Mobility Element; 5. This plan would result in the affected corridor cities continuing to experience impaired pedestrian and vehicle access, risk of accidents, noise pollution, impaired economic development, and poor local traffic circulation; and 6. The LACMTA has projected a ridership of only 64,000 passenger-trips per day by the year 2010 for the Blue Line LRT extension, with only a fraction of this ridership being drawn from the freeway. The Blue Line LRT extension is expected to be completed by the year 2001. (AR 129:98-1887(ROD).) None of these reasons states that the MMLB cannot “be built as a matter of sound engineering.” Stop H-3, 740 F.2d at 1449 n. 11. Therefore, the defendants appear to concede that the MMLB can be built as a matter of sound engineering. For these reasons, the MMLB appears to be feasible. The remaining question is whether the MMLB is imprudent. The ROD, the “Environmental Reevaluation (ER) for the Route 710 Freeway” prepared by Caltrans and the FHWA in April 1998 (the “Environmental Reevaluation”), the “Final Revised Section 4(f) Evaluation for the Route 710 Freeway” prepared by Caltrans and the FHWA in April 1997 (“Final 4(f) Evaluation”), and the Caltrans MMLB Report discuss the MMLB. However, the ROD, the Environmental Reevaluation, and the Final 4(f) Evaluation rely on the analysis contained in the Caltrans MMLB Report. The Caltrans MMLB Report found “that [the MMLB] requires the use of Section 4(f) resources and does not meet the various project needs.” (AR 103:96-4285-96-4286 (Caltrans MMLB Report); AR 129:98-1792-98-1793 (Final 4(f) Evaluation).) The Ninth Circuit has stated, “[alternatives that do not accomplish the purposes of the project may properly be rejected as imprudent.” Arizona Past & Future Found., Inc. v. Lewis, 722 F.2d 1423, 1428 (9th Cir.1983); accord Alaska Ctr. for the Env’t v. Armbrister, 131 F.3d 1285, 1288-89 (9th Cir.1997). Here, Caltrans found that the MMLB did not accomplish any of the “purposes of this project.” (AR 103:96-4285 (Caltrans MMLB Report).) Assuming that the defendants have properly analyzed the MMLB, this finding would render the MMLB imprudent. Arizona Past & Future, 722 F.2d at 1429. Therefore, unless the plaintiffs can show that the Caltrans MMLB Report is based upon erroneous assumptions or material mistakes of fact (see infra Part II-B-l-b), the Court cannot conclude that the plaintiffs have met their burden in establishing that the defendants did not adequately evaluate the MMLB. b. Whether the Caltrans MMLB Report is based upon erroneous assumptions or material mistakes of fact The plaintiffs assert that the Caltrans MMLB Report is defective for several reasons. First, they assert that the report used criteria that favored a freeway solution. Second, they assert that the report is defective because it is based upon erroneous factual assumptions. i. Whether the Caltrans MMLB Report used criteria that favored a freeway solution The FHWA has an obligation to “[r]ig-orously explore and objectively evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a). The plaintiffs argue that the defendants used biased criteria to reject the MMLB. The defendants argue that they are vested with the authority to determine what the purpose and needs are of a project and that the MMLB did not meet the purpose and needs of this project. “[A]n agency may not define the objectives of its actions in terms so unreasonably narrow that only one alternative from among the environmentally benign ones in the agency’s power would accomplish the goals of the agency’s action, and the EIS would become a foreordained formality.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 196 (D.C.Cir.1991); see also Sierra Club, Illinois Chapter v. United States Dept. of Transp., 962 F.Supp. 1037, 1042 (N.D.Ill.1997). Here, the defendants rejected the MMLB in part based on freeway-oriented criteria such as “completing the freeway network” and “completing the HOV network.” {See AR 103:96-4251 (Caltrans MMLB Report).) However, the defendants also rejected the MMLB based on non-freeway-oriented criteria such as reducing primary and local street congestion, improving mobility and accessibility, reducing accident and fatality rates, and improving air quality. (See AR 103:96-4251 (Caltrans MMLB Report).) Given the inclusion of both freeway-oriented and non-freeway-oriented criteria, the Court cannot agree that the defendants used biased criteria in rejecting the MMLB. ii. Whether the Caltrans MMLB Report is based upon erroneous factual assumptions The plaintiffs argue that the Caltrans MMLB Report miseharacterized the MMLB. The MMLB proposed traffic management measures on primary streets and arterials. In contrast, the Caltrans MMLB Report characterized the MMLB as proposing traffic calming measures on primary streets and arterials. The plaintiffs cite two quotes in the executive summary in the Caltrans MMLB Report that refer to traffic calming on primary streets and arterials. (AR 103:96-4246 (Caltrans MMLB Report) stating, “Traffic calming on primary arterials used by the buses exacerbates the general levels of congestion especially in the city of Pasadena;” AR 103:96-4249 (Caltrans MMLB Report) stating, “The Low Build will increase congestion by removing a section of existing freeway, and reducing free flow speeds and capacities on primary streets with traffic calming” (emphasis in original).) The defendants deny that they mischarae-terized the MMLB. The MMLB proposes the use of “Arterial Street Traffic Management.” This “includes state-of-the-art traffic signals on most major surface arterial streets in the corridor” that will “improve travel speeds, reduce intersection delays, respond to actual travel conditions on a near-instantaneous basis, and will permit sophisticated local responses to incidents ... and other common causes of traffic delay.” (AR 74:93-5245 (MMLB).) Additionally, the MMLB states that it will employ “Residential Street Calming” which will “remove through (non-local) trips from streets that are unsuitable for commuters.” (AR 74:93-5246 (MMLB).) Traffic calming measures are actions taken to slow traffic and divert it from residential streets to larger streets capable of handling increased traffic flow. (AR 74:93-5254 (MMLB).) Examples of these measures include reducing the width of streets, diverting traffic by blocking certain intersections, adding medians to streets, adding speed bumps, and using roundabouts (“traffic circles”) in certain intersections. (AR 74:93-5254 (MMLB).) Traffic management measures, in contrast, are actions taken to improve the efficiency of traffic flow along primary ar-terials. The primary functions are to “provide additional capacity to meet current and future traffic demands, and improve peak period travel speeds and traffic flow so as to provide maximum efficiency and safety.” (AR 74:93-5252 (MMLB).) The Caltrans MMLB Report contains multiple examples of citing the MMLB for saying that which it does not say. (See AR 103:96-4256, 103:96-4277 (Cal-trans MMLB Report).) The Caltrans MMLB Report cites the MMLB for proposing traffic calming measures on primary arterials such as Orange Grove Boulevard, Fremont Avenue between the 110 Freeway and Huntington Drive, Mar-engo Avenue between Del Mar Boulevard and Glenarm Street, and California Boulevard between Orange Grove Boulevard and Fair Oaks Avenue and East of Arroyo Parkway (AR 103:96^4256 (Caltrans MMLB Report).) The MMLB proposed traffic management measures on several of these primary arterials or did not make any proposals for these arterials. (AR 74:93-5253 (MMLB).) The MMLB proposed limiting traffic calming to residential streets where appropriate. (AR 74:93-5253-93:5254 (MMLB).) The MMLB identifies California Boulevard east of Fair Oaks Avenue as a candidate for arterial street management. (AR 74:93-5253 (Figure 4-9) (MMLB).) The MMLB identifies Fremont Avenue between the 110 Freeway and Huntington Drive as part of the “Low Build Connector” — a traffic management system to improve the flow of traffic between Fremont Avenue and Fair Oaks Avenue. (AR 74:93-5247 (Figure 4-1) (MMLB).) Although the MMLB does not discuss Orange Grove Boulevard specifically, Orange Grove is a primary arterial with on-ramps to the 110 Freeway on the south and the 134 and 210 Freeways on the north. (AR 103:96-4256,103:96-4277 (Cal-trans MMLB Report).) The Court takes judicial notice of the fact that Orange Grove allows access to several significant sites such as the Norton Simon Museum, the Tournament of Roses Parade, Old Pasadena, and the Rose Bowl from the 110, 134 and 210 Freeways as well as serving as a major conduit for traffic entering these freeways from the western parts of Pasadena and South Pasadena. Likewise, the MMLB does not call for traffic calming on Marengo Avenue. However, the Cal-trans MMLB Report calls for traffic calming on Marengo Avenue, which is a primary arterial. (AR 103:96-4277 (Caltrans MMLB Report).) These errors are significant because the defendants criticized the MMLB for negatively impacting local traffic. (AR 103:96-4285 (Caltrans MMLB Report).) Logically, placing traffic calming measures on primary arterial streets will have a two-fold effect on traffic. First, it will slow traffic on the calmed arterial streets significantly exacerbating congestion on those streets. Second, it will cause traffic to spill-over onto non-calmed primary arterials as motorists avoid the calmed streets. This will increase congestion along the non-calmed primary arterials as well. The defendants’ conclusion that the MMLB does not meet the purpose and need of the project is suspect because of these errors. Specifically, the Caltrans MMLB Report concludes that the MMLB does not reduce primary street congestion, reduce local street congestion, improve mobility and accessibility, promote transit ridership, reduce drive alone car trips, reduce accident and fatality rates, or improve air quality. (AR 103:96-4285 (Caltrans MMLB Report).) The MMLB specifically discusses these issues as being alleviated by employing arterial street traffic management and residential street traffic calming. (AR 74:93-5245-93-5246 (MMLB).) Given the above, the plaintiffs have shown a probability of success on the merits in proving that the defendants have not rigorously or objectively evaluated the MMLB. Evaluation of alternatives to the proposed project is the “heart of the environmental impact statement.” 40 C.F.R. § 1502.14. Further, the purpose of these statements is to “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 by the decisionmaker and the public.” Id. “ ‘The existence of a viable but unexamined alternative renders an environmental impact statement inadequate.’ ” Alaska Wilderness Recreation & Tourism Ass’n v. Morrison, 67 F.3d 723, 729 (9th Cir.1995), quoting Resources Ltd., Inc. v. Robertson, 35 F.3d 1300, 1307 (9th Cir.1993). Furthermore, the Final 4(f) Evaluation, the Environmental Reevaluation, and the ROD specifically rely on the flawed Cal-trans MMLB Report for the conclusion that the MMLB does not meet the purpose and need of this project. (AR 129:98-1674-98-1680 (Environmental Reevaluation); AR 129:98-1793-98-1794 (Final 4(f) Evaluation); AR 129:98-1875, 129:98-1886-98-1887(ROD).) Therefore, the plaintiffs have made a strong showing that the defendants did not rigorously and objectively explore all alternatives to the 710 Freeway Project in violation of Section 4(f). 2. Whether the defendants failed to properly evaluate the constructive use of historic resources The plaintiffs argue that the defendants improperly found that the 710 Freeway Project will not result in the constructive use of Section 4(f) resources. The defendants argue that they properly evaluated the existence of potential constructive uses of Section 4(f) resources and found that none exist. A use occurs “[wjhen land is permanently incorporated into a transportation facility; • • • [wjhen there is a temporary occupancy of land that is adverse in terms of the statute’s preservationist purposes ...; or ... [w]hen there is a constructive use of land.” 23 C.F.R. § 771.135(p)(1)(i-iii). The regulations state: Constructive use occurs when the transportation project does not incorporate land from a Section 4(f) resource, but the project’s proximity impacts are so severe that the protected activities, features, or attributes that qualify a resource for protection under Section 4(f) are substantially impaired. Substantial impairment occurs only when the protected activities, features, or attributes of the resource are substantially diminished .... The Administration has reviewed the following situations and determined that a constructive use occurs when: ”(i) The projected noise level increase attributable to the project substantially interferes with the use and enjoyment of a noise-sensitive facility of a resource protected by Section 4(f), such as hearing the performances at an outdoor amphitheater, sleeping in the sleeping area of a campground, enjoyment of a historic site where a quiet setting is a generally recognized feature or attribute of the site’s significance, or enjoyment of an urban park where serenity and quiet are significant attributes; (ii) The proximity of the proposed project substantially impairs esthetic features or attributes of a resource protected by Section 4(f), where such features or attributes are considered important contributing elements to the value of the resource. Examples of substantial impairment to visual or esthetic qualities would be the location of a proposed transportation facility in such proximity that it obstructs or eliminates the primary views of an architecturally significant historical building, or substantially detracts from the setting of a park or historic site which derives its value in substantial part due to its setting; (in) The project results in a restriction on access which substantially diminishes the utility of a significant publicly owned park, recreation area, or a historic site; (iv) The vibration impact from operation of the project substantially impairs the use of a Section 4(f) resource, such as projected vibration levels from a rail transit project that are great enough to affect the structural integrity of a historic building or substantially diminish the utility of the building; or (v) The ecological intrusion of the project substantially diminishes the value of wildlife habitat in a wildlife or waterfowl refuge adjacent to the project or substantially interferes with the access to a wildlife or waterfowl refuge, when such access is necessary for established wildlife migration or critical life cycle processes. Id. § 771.135(p)(2), (4). The plaintiffs argue that the 710 Freeway Project will constructively use historic resources by “substantially impairing] esthetic features or attributes of a resource protected by section 4(f), where such features or attributes are considered important contributing elements to the value, of the resource.” Id. § 771.135(p)(4)(ii). The plaintiffs argue that the proximity of the freeway to historic properties results in at least two forms of constructive use. First, to the extent that the overall setting of a property is a feature or attribute considered to be an important contributing element to the historic value of the property, this attribute will be impaired. Second, the plaintiffs argue that the mere proximity to the freeway of the historic properties will result in additional impairments. The defendants argue that they examined the Section 4(f) resources in the Corridor and found that “setting is not a major aspect of the qualities which make [specific properties] eligible for the National Register.” (AR 129:98-1798-98-1802 (Final 4(f) Evaluation).) The plaintiffs argue that the defendants did not credit the significance of setting to the properties. Specifically, the plaintiffs argue that the defendants merely repeat the same conclusion about each property without having conducted a thorough review. (See, e.g., AR 129:98-1798-98-1802 (Final 4(f) Evaluation).) The plaintiffs note that the defendants’ conclusion that there will be no constructive use of Section 4(f) resources contradicts that of the Advisory Council. (See AR 128:98-1085-981086.) The Advisory Council has stated that the 710 Freeway Project will result in “[a]t least 69 historic structures ... [being] adversely affected directly through demolition, relocation, or substantial alteration of their setting.” (AR 128:98-1083 (emphasis added).) Additionally, the Advisory Council stated that this project “will cause a major disruption to the cohesive fabric of the affected historic districts.... There is no acceptable mitigation method that will repair the damage to community cohesion within the historic districts that will be severed or impacted by the construction and placement of an eight-lane freeway.” (AR 128:98-1083.) The Advisory Council concluded by stating that “impacts of the proposed Route 710 Freeway upon historic properties are massive and unacceptable.” (AR 128:98-1084.) The Advisory Council — an agency charged with examining the effects of federal projects on historic sites — believes that setting is significant, especially with regard to historic districts. The defendants’ Final 4(f) Evaluation, however, concludes that setting is not significant to these properties. The federal regulations define an historic district as: a geographically definable area, urban or rural, possessing a significant concentration, linkage, or continuity of sites, buildings, structures, or objects united by past events or aesthetically by plan or physical development. 36 C.F.R. § 60.3(d). It appears that the historic districts at issue here are significant because of the aesthetics rather than the history involved. However, the defendants offer no analysis. The defendants merely conclude that “setting is not a major aspect of the qualities which make the district eligible for the National Register.” (AR 129:98-1801 (Final 4(f) Evaluation) (describing Buena Vista Historic District).) The Court finds that there are serious questions as to whether the settings of these properties, either standing alone or in an historic district, contribute at least in part to their historic eligibility. In addition to setting, another issue is the proximity of several historic sites to the 710 Freeway Project. The project comes within 15 feet of the Short Line Villa Tract Historic District. Courts have found that there is constructive use in situations where there is a greater distance between the project and the Section 4(f) resources. See, e.g., Coalition Against Raised Expressivay, Inc. v. Dole, 835 F.2d 803, 811 (11th Cir.1988) (on-ramp within 43 feet of Section 4(f) structure is a constructive use); Stop H-3 Ass’n v. Coleman, 533 F.2d 434, 439 (9th Cir.1976) (construction of six-lane controlled access highway passing within 100-200 feet of Section 4(f) resource is a constructive use). The Court finds that the plaintiffs have shown that there are serious questions going to the merits as to whether the defendants abused their discretion in finding that the 710 Freeway Project will not result in any constructive uses of eligible historic resources. 3. Whether the defendants improperly failed to review properties of state and local historic significance a. Whether the regulation is invalid Section 4(f) states that covered properties include: “land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site).” 49 U.S.C. § 303(c) (1994). The federal regulation promulgated under this provision, however, states: In determining the application of section 4(f) to historic sites, the Administration, in cooperation with the applicant, will consult with the State Historic Preservation Officer (SHPO) and appropriate local officials to identify all properties on or eligible for the National Register of Historic Places (National Register). The section 4(f) requirements apply only to sites on or eligible for the National Register unless the Administration determines that the application of section 4(f) is otherwise appropriate. 23 C.F.R. § 771.135(e). The plaintiffs argue that this regulation-limiting application of Section 4© to properties listed on the National Register contradicts Section 4(f). The defendants argue that invalidating this regulation would make the reviewing process so unwieldy that no projects could ever be built. Additionally, the defendants argue that expanding Section 4(f) to properties that are not eligible for the National Register would frustrate the purposes of the statute because properties may be included by state or local officials for political reasons or without sufficient professional guidance. The Court has not found authority discussing whether this regulation is consistent with Section 4(f). In reviewing the legality of a regulation, the court must apply the Administrative Procedure Act (“APA”). The APA states that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” 28 U.S.C. § 2401(a). A right of action for challenging the validity of a regulation accrues when the regulation is adopted. Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1456 n. 5 (9th Cir.1996). Here, the regulation was adopted in 1980. See 44 Fed.Reg. 59438 (1980). Therefore, the plaintiffs are barred from challenging the validity of this regulation. See Bicycle Trails, 82 F.3d at 1456 n. 5. b. Whether the defendants properly considered whether to include California eligible properties as Section 4(f) resources The regulations state that Section 4(f) is limited to historic sites qualifying for the National Register. The regulations also allow the Administration to include other properties where appropriate. 23 C.F.R. § 771.135(e). The plaintiffs argue that the defendants should have included properties eligible for the California Register in the Section 4(f) analysis. California enacted the California Register law in 1992. See Cal. Pub. Res.Code § 5024.1. This law has a register system similar to the National Register. Id. The California Register is broader than the National Register. In addition to including all resources which are eligible for the National Register, the California Register also permits the inclusion of “a range of historical resources which better reflect the history of California.” 14 Cal.Code Regs. § 4852. The California Register is less restrictive when it comes to properties which may be structurally compromised. “It is possible that historical resources may not retain sufficient integrity to meet the criteria for listing in the National Register, but they may still be eligible for listing in the California Register.” Id. § 4852(c). The defendants argue that they did not consider properties eligible for the California Register because the State did not adopt eligibility criteria for inclusion on the California Register until January 1998. See id. The defendants argue that the State issued the eligibility criteria too late to be considered. (Fed. Opp. at 25:4-8.) The plaintiffs have provided no information demonstrating that the defendants’ decision to not consider additional properties was arbitrary or capricious. The record established that the defendants had a valid reason for not exercising discretion to include these additional properties. The Court finds that the plaintiffs have not demonstrated serious questions going to the merits of whether the defendants improperly failed to exercise discretion to apply Section 4(f) to all properties eligible for the California Register. c. Whether the defendants’ commitment to include California eligible properties is binding The plaintiffs argue that Caltrans committed itself to include California eligible properties in the Section 4(f) analysis upon adoption of regulations defining California’s eligibility criteria. Caltrans’s “Caltrans Final Mitigation Enhancement Recommendations for Route 710 Project,” written in 1994 — two years after the California Register law was enacted but before the state adopted regulations — states: Caltrans will comply with the following recommendations when appropriate criteria are adopted: 1. Determination of California Register eligible properties adhering to standards other than those of the National Register. 2. Development of mitigation measures for these properties. If it is determined that these criteria are applicable to projects with adopted environmental documents which are not yet constructed, Caltrans will conduct a reevaluation of the project route as required by law. (AR 75:93-5917.) There is no evidence that Caltrans has complied with its commitments to determine the existence of California eligible properties, to develop mitigation measures for these properties, or to reevaluate the proposed route with reference to these properties. The defendants do not explain why they are no longer adhering to the commitments Caltrans made in 1994. In “actions where the Administration exercises sufficient control to condition the permit or project approval” the regulations state, “It shall be the responsibility of the applicant [Caltrans], in cooperation with the Administration to implement those mitigation measures stated as commitments in the environmental documents prepared pursuant to this regulation.” 23 C.F.R. § 771.109(a)(1), (b). In interpreting similar regulations under the National Environmental Protection Act (“NEPA”), the Ninth Circuit has held that once an agency makes a commitment to certain mitigation measures, those mitigation measures must be implemented. See Tyler v. Cisneros, 136 F.3d 603, 608 (9th Cir.1998) (noting that once agency is committed, even if it was not required originally to take such action, the agency must implement that commitment). Additionally, the ROD reiterates this commitment by stating, “All mitigation features promised in the environmental documents and developed and agreed to since approval of the FEIS in 1992, and those developed by the design advisory groups and agreed to by FHWA and Caltrans, will be implemented.” (AR 129:98-1871(ROD).) Caltrans made significant commitments to include California eligible properties in the Section 4(f) analysis. The administrative record indicates that the defendants did not keep these commitments. The defendants have noted that it would have been impossible for them to have kept these commitments given the approximately three months between California’s adoption of the eligibility criteria and Secretary Slater’s signature on the ROD. However, having committed themselves to this analysis, the appropriate course was for the defendants to fulfill the commitments before they issued the ROD. Therefore, the plaintiffs have shown a strong probability of succeeding on the merits of this claim. 4. Whether the defendants were obligated to cure the non-concurrence of the Department of the Interior The plaintiffs argue that the defendants did not cure the non-concurrence of the DOI. The defendants agree, but argue that no cure was necessary. The plaintiffs have cited no cases or statutory authority stating that the DOI must concur with Section 4(f) decisions made by the FHWA. Although Section 4(f) does mandate that the FHWA confer with other agencies such as the DOI, it does not give these agencies any control, veto, or voting power. See 49 U.S.C. § 303(b). Further, the regulations state: “The section 4(f) evaluation shall be provided for coordination and comment to the officials having jurisdiction over the section 4(f) property and to the Department of the Interior.” 23 C.F.R. § 771.135®. The plaintiffs cannot establish that the defendants’ acts were arbitrary, capricious or an abuse of discretion when they failed to cure the non-concurrence of the DOI. C. Conclusion as to whether defendants violated Section J¡.(f). The plaintiffs have asserted four violations of Section 4(f): (1) the defendants failed to properly evaluate the MMLB; (2) the defendants failed to properly consider constructive use impacts; (3) the defendants failed to fulfill their commitment to include in their analysis properties eligible for the California Register which are ineligible for the National Register; and (4) the defendants failed to cure the non-concurrence of the DOI. On the first and third claims, the plaintiffs have shown a probability of success on the merits. On the second claim, the plaintiffs have shown serious questions going to the merits. On the fourth claim, the plaintiffs have not met their initial burden. III. Whether the defendants complied with the National Environmental Protection Act A. Introduction and standard of review The issue is whether the Secretary complied with the National Environmental Protection Act (“NEPA”) in deciding that an SEIS was not required before the issuance of the ROD. NEPA requires that the approving agency take a “hard look” at the environmental consequences of the proposed project. Oregon Natural Resources Council v. Marsh, 52 F.3d 1485, 1488 (9th Cir. 1995). Although courts “must defer to the informed discretion of the responsible federal agencies, and are not to ‘fly speck’ environmental impact statements, [courts] will reverse an agency’s decision where it is contrary to procedures required by law, or where it is arbitrary or capricious.” Id. (internal quotations and citations omitted). “NEPA does not mandate particular substantive results, but instead imposes only procedural requirements.” Laguna Greenbelt, Inc. v. United States Dept. of Transp., 42 F.3d 517, 523 (9th Cir.1994), citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). The Ninth Circuit has stated that under its “ ‘rule of reason,’ [courts] determine ‘whether the [EIS] contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences’ by making ‘a pragmatic judgment whether the [EIS’s] form, content and preparation foster both informed decision-making and informed public participation.’ ” Id., quoting Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1356 (9th Cir.1994). The plaintiffs claim that the Secretary failed to comply with NEPA for four reasons: (1) three other federal agencies found that the defendants did not comply with NEPA; (2) the defendants failed to properly evaluate a low-build alternative such as the MMLB; (3) the defendants failed to prepare an SEIS; and (4)' the defendants failed to consider indirect and cumulative effects of the 710 Freeway Project. B. Discussion 1. Whether objections of other agencies demonstrate that the defendants did not comply with NEPA Three federal agencies have criticized various aspects of this project: the EPA, the DOI, and the Advisory Council. (See supra Part II-B-4.) The plaintiffs argue that these agencies concluded that the “defendants failed to adequately assess adverse impacts and the Low Build alternative, and failed to require a Supplemental EIS, despite significant new circumstances and information and substantial changes in the project.” (Mot. at 23:11-13, citing AR 92:95-3475; 110:96-7786; 128:98-0984; 128:98-1085.) The courts have held that NEPA’s purpose is “to insure a fully informed and well-considered decision.” Sierra Club v. United States Army Corps of Eng’rs, 701 F.2d 1011, 1029 (2d Cir.1983), quoting Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227,100 S.Ct. 497, 62 L.Ed.2d 433 (1980). The defendants acknowledge that NEPA requires them to obtain and consider comments from other federal agencies. However, they argue that NEPA did not require the defendants to delegate decision-making authority to these agencies. The defendants are correct. (See supra Part II-B-4.) However, a “court may properly be skeptical as to whether an EIS’s conclusions have a substantial basis in fact if the responsible agency has apparently ignored the conflicting views of other agencies having pertinent expertise.” Sierra Club, 701 F.2d at 1030; see also Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir.1978) (stating that there must be some good faith, reasoned analysis in response to situations where “sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives.”). The defendants argue that they alone are vested with the discretion to determine the purpose and need of a proposed project. The defendants argue that the commenting agencies’ objections were limited to the defendants’ analysis of the purpose and need of the 710 Freeway Project and whether low build and other alternatives met the purpose and needs of the project. Therefore, the defendants argue that the objections are outside the expertise and responsibility of the commenting agencies. It does not appear that the objections were so limited. For example, the EPA stated on March 4, 1998 that because the Final EIS for this project was more than six years old and because there had been significant changes to the project, an SEIS was necessary. (AR 128:98-0987.) The EPA noted that these changes include the addition of several cut-and-cover tunnels, one of which may not be technically feasible. The EPA also stated that the defendants had not properly evaluated a technically feasible low-build option. The EPA stated that these concerns mandated the production of an SEIS. Contrary to the defendants’ assertion, these comments do not relate to purpose and need, but go to an area within the expertise of the EPA — • when further environmental review is required. There is no indication in the Administrative Record that the Secretary responded to these comments before signing the ROD on April 13, 1998. Therefore, although this non-concurrence does not necessarily invalidate the NEPA process, the Court “may properly be skeptical as to whether an EIS’s conclusions have a substantial basis in fact.” Sierra Club, 701 F.2d at 1030. 2. Whether the defendants properly evaluated the MMLB The plaintiffs argue that the defendants failed to properly analyze the MMLB. The plaintiffs’ argument is that the defendants based their conclusion on erroneous assumptions that skewed the results of the MMLB analysis contained in the Caltrans MMLB Report. (See supra Part II-B-1.) The defendants argue that they rejected the MMLB because it did not meet the purpose and need of the project. As explained above, the plaintiffs have shown a likelihood of success in establishing that the erroneous factual assumptions that the defendants made while analyzing the MMLB establish that the defendants never “rigorously and objectively evaluated” the MMLB. (See id.) 40 C.F.R. § 1502.14 states that the evaluation of alternatives to the proposed project is the “heart of the environmental impact statement.” The purpose of an EIS is to “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 by the decisionmaker and the public.” Id. The administration must “[rjigorously explore and objectively evaluate all reasonable alternatives.” Id. at § 1502.14(a). “The existence of a viable but unexamined alternative renders an environmental impact statement inadequate.” Alaska Wilderness, 67 F.3d at 729, quoting Resources Ltd., 35 F.3d 1300 (9th Cir.1994). The plaintiffs have shown a likelihood of success that the defendants acted arbitrarily or capriciously in rejecting the MMLB as not meeting the purpose and need of the project. 3. Whether the defendants were required to prepare a supplemental environmental impact statement The plaintiffs also argue that the defendants’ decision not to prepare an SEIS prior to approval of the ROD was an abuse of discretion. The plaintiffs argue that the project has significantly changed since the defendants issued the FEIS in 1992, and that the defendants must complete an SEIS to conform with NEPA. The defendants argue that the changes are minor in the context of the entire project. They argue that the changes were implemented to mitigate impacts on the environment and to historical resources. Further, they argue that the ROD requires that the defendants perform a feasibility study and an SEIS before the project can proceed. In determining when an agency must prepare an SEIS, the federal regulations state: An EIS shall be supplemented whenever the Administration determines that: (1) Changes to the proposed action would result in significant environmental impacts that were not evaluated in the EIS; or (2) New information or circumstances relevant to environmental concerns and bearings on the proposed action or its impacts would result in significant environmental impacts not evaluated in the EIS. 23 C.F.R. § 771.130(a); see also 40 C.F.R. § 1502.9(c)(1). When an SEIS is required, the agency must include the SEIS in the administrative record and must “prepare, circulate, and file” the SEIS in the same fashion as the draft or FEIS upon which it comments. 40 C.F.R. § 1502.9(c)(3),(4); see also 23 C.F.R. § 771.130(d). This means that an SEIS must be prepared prior to the issuance of the ROD. However, the regulations also state that: [A] supplemental EIS will not be necessary where: (1) The changes to the proposed action, new information, or new circumstances result in a lessening of adverse environmental impacts evaluated in the EIS without causing other environmental impacts that are significant and were not evaluated in the EIS; or (2) The Administration decides to approve an alternative fully evaluated in an approved final EIS but not identified as the preferred alternative. 23 C.F.R. § 771.130(b). The plaintiffs make three arguments regarding the preparation of an SEIS: (1) that an SEIS was necessary; (2) that the FEIS is deficient; and (3) that conducting an SEIS after issuing the ROD violates NEPA. a. Whether an SEIS was necessary The plaintiffs make several arguments regarding why the Secretary’s decision to not require an SEIS violates NEPA: (1) the changes and new information are significant; (2) this decision frustrates NEPA’s mandate for full public disclosure of the 710 Freeway Project’s environmental consequences; and (3) studies prepared after the FEIS cannot substitute for an SEIS. i. Whether changes and new information are significant The regulations require that the defendants prepare an SEIS whenever changes in the project or new information relevant to environmental concerns would result in significant environmental impacts not evaluated in the FEIS. 23 C.F.R. § 771.130(a). The regulations state, “ ‘Significantly’ as used in NEPA requires considerations of both context and intensity.” 40 C.F.R. § 1508.27. “Context” means the “significance of an action m