Full opinion text
OPINION AND ORDER CONCERNING THE INTERNAL COMBUSTION ENGINE, HzO, Homo Sapiens and rhadine exilis. (AND THE SURVIVAL OF THE LATTER TWO) FRED BIERY, Chief Judge. Progress might have been all right once, but it has gone on too long. PROLOGUE With a reverse cliché nod to Mr. Dickens, it was the worst of times and the best of times. “The Way We Were” South Texas. 1950-1970 The Worst of Times Men returned from World War II with medals for heroism, but could not serve on juries if their skin was brown. A family which would produce two United States Congressmen was not allowed to enjoy a public park because their name was Gonzalez. The Bellinger family on the segregated East Side of San Antonio paid taxes to support the University of Texas School of Law, but could not attend because their ancestors were brought involuntarily from Africa. Subsequently though, one Belling-er helped to right the wrong. The Velas and the Prados struggled to educate their children in the underfunded Edgewood Independent School District, notwithstanding the promise of equal education in the Texas Constitution. And Culebra Road seemed as wide as the Mississippi River to kids named Gloria and Ed. Women who preferred careers to domesticity could be secretaries, teachers or nurses. If they were married and wished to invest in real estate, husbands had to give permission based on the legal requirement of coverture. Nor were they seen on juries as full partners in a supposedly democratic society. Girls who wanted to participate in school activities had opportunities in band, choir, pep squad or cheerleading, but not in basketball, volleyball, track or softball until Title IX became federal law. The Best of Times South Texas, 1950-1970 Air conditioning was virtually nonexistent. Human obesity largely occurred in small numbers. “We’re Number One,” was a chant denoting a winning sports team; now it refers to America’s fatness (not fitness) ranking in the world. Allergies and asthma were rare. Sleeping outside or on screened-in porches in August was normal. Young Homo sapiens, born after World War II, whom the Court denominates Infantilus boomeramus, played outside, returning to those thrilling days of yesteryear with a hearty “Hi-Yo Silver!” and leaped imaginary buildings in a single bound, wearing capes made from old pillowcases. They rode bikes or walked to schools which had windows that opened! The birth months of South Texas Infantilus boomeramae, minus nine, provide anecdotal evidence that the fundamental functioning of the procreation process took place in the cooler months, not in July or August. Moms cooked and hung clothes on the line to dry. Dads supported the family on one income. Sons and daughters mowed the grass and washed the family car. Coaches had authority to apply wooden paddles to the gluteus maximus of misbehaving boys. But, alas, there was no three point shot for vertically-challenged basketball players. On the other hand, elderly people did not run multiple marathons as some do today. The nascent San Antonio Airport was surrounded by grazing land and cows. Nearby, a youngster named Jim rode horses on property now covered with the asphalt, steel and concrete known as the Nowlin Building and the SWBC Tower. Meanwhile, about fifteen miles south, his future friend and colleague, affectionately known as Hippo, rarely ventured north of Hildebrand because his last name was Garcia. And the Rodriguez family could rent a home in Harlandale only if put in the name of an Anglo wife. Boerne, Kendall County, Texas had one flashing yellow light and one police officer who was also the Chief (Earl Buck). Kerr County had more goats and sheep than people. One could drive north on two lane U.S. Highway 281 and see clear Edwards Aquifer water streaming from the limestone, some of which was used to brew La Cerveza Perla from the “Country of 1100 Springs.” There were few traffic or water issues notwithstanding the severe drought of the 1950s. Lawyers Maverick, Cadena and Kauffman, the Civil Rights Movement, and strong liberated women named Cockrell, Jarboe, Tafolla, and Valdez addressed the worst of times, though a perfect union has yet to be formed. The sounds of affordable air conditioning silenced the best of those mystic chords of memory. A Funny Thing Happened on the Way to Modernity With artificially cooled cocoons, Homo sapiens theretofore unable or unwilling to take the heat in Texas began, and continue today, a diaspora from foreign states north, east and west of Texas: One wag once waxed wittily: “Texans, you are guarding the wrong river.” Instead of far from the madding crowd, Texans saw the crowd getting closer and traffic more maddening. From a 1950 population of 500,000, Bexar County is now over 1,700,000 of suburban sprawl. Comal, Kendall and Kerr, once pristine preserves of natural beauty, have fallen prey to avaricious, rapacious, and sometimes mendacious, development and its ubiquitous impervious cover of asphalt, roofs, concrete, shopping and eating venues. While many species live in the area in question, the subjects of this proceeding are Homo sapiens and karst invertebrates known as Rhadine exilis and Rhadine infernalis. The conundrum facing this region is how to balance and manage finite resources of water, land, flora and fauna in light of exponential increases in the number of Homo sapiens and their vehicles, and the concomitant destruction of nature upon which all species rely for life. Perhaps a mission impossible. 1950 2010 Census Census 500,460 Bexar County 1,714,773 5,423 Kendall County 33,410 16,357 Comal County 108,472 25,392 Guadalupe County 131,533 14,022 Ken- County 49,625 Total: 561,654 2,037,813 The best solution would be a reverse migration of one million Homo sapiens to north of the Red River and east of the Sabine. The Court unfortunately does not have power to order such movement, but it could occur if air conditioning were unaffordable or the Edwards Aquifer becomes toxic or runs dry. Indeed, the slow cancerous death of drought visits again, but with four times as many humans sucking from the same basic water hole. The forty days and nights of Noah are looking better. The lesson of move, adapt or die applies. Dinosaurs did not learn; cockroaches did. In the meantime, the record reflects massive vehicular traffic congestion sought to be alleviated by proposed ramps connecting U.S. Highway 281 and Loop 1604. The status quo of idling internal combustion engines on the subject roadways spews large quantities of carbon monoxide for Mother Earth to breathe, not a nice thing to do to one’s mother, and causes automobile droppings onto and into the Edwards which the Court calls Petro Poop. APOLOGUE The Law and Just the Facts, Ma’am Notwithstanding the foregoing historical observations and personal lamentation, the Court’s obligation is to rule of law standards evolved through legislation, regulation, and stare decisis. Rather than a case to be decided in the first instance in a court of law, this is an appeal from administrative and regulatory bodies to a court of law. As a result, this Court does not decide as a fact finder based on a preponderance of evidence standard, but instead sits in an appellate capacity to review administrative decisions based on a standard of whether such decisions were arbitrary and capricious. Summary of Arguments Plaintiff seeks a preliminary injunction to maintain the aforesaid traffic congestion status quo until further environmental impact analysis can be accomplished. Plaintiff asserts a much larger expanse of the 281/1604 environs should be included rather than just the area over which the ramps would be built, and the administrative agency decision to exempt the project should be blocked by the Court because it was arbitrary and capricious. Defendants respond that the administrative process provided appropriate public debate and the Federal Highway Administration decision to grant an exemption from environmental studies was made according to correct legal standards, was not arbitrary and capricious and, therefore, should not be reversed by the Court and that a two to three year environmental study of the larger area north of Loop 1604 is underway. In lieu of a thousand words, two pictures show: Although it is undisputed that hundreds of thousands of vehicles pass through the U.S. 281/Loop 1604 interchange everyday, there is no direct connection between either roadway. All vehicles traveling between U.S. 281 and Loop 1604 must exit to frontage roads and travel though stop lights. Backups at the lights can be extreme. During the afternoon peak period, there is a queue of approximately 1,000 vehicles per hour waiting to turn from northbound U.S. 281 to westbound and eastbound Loop 1604. Administrative Record (“AR”) Doc. 338 at 1. The substantial backups have created unsafe conditions. Id. at 2-4. In 2008, 132 collisions were reported at the interchange — more than any other interchange in San Antonio. Id. at 4. Construction has begun on a project developed by the Alamo Regional Mobility Authority (“ARMA”), the Texas Department of Transportation (“TxDOT”), and the Federal Highway Administration (“FHWA”) which hopes to provide relief. The project involves constructing ramps between U.S. 281 North and Loop 1604 where congestion is most severe, auxiliary lanes to insure the ramps operate safely and efficiently, and additional safety and mobility enhancements in the project area. Beyond improving safety, the project will eliminate up to 511,000 hours of traffic delays annually, resulting in a cost savings of $7 million. AR Doc. 338 at 1-5; AR Doc. 112 at 10. Because of the FHWA’s involvement and the use of federal funds, an analysis of the projects’s potential environmental impact was required under the National Environmental Policy Act (“NEPA”). ARMA, TxDOT, and the FHWA collaboratively conducted a detailed analysis, concluding the project will have no significant environmental impact. AR Doc. at 338. On February 24, 2010, after considering the results of the environmental analysis, public input and other studies and information contained in the Administrative Record, the FHWA concluded that the project qualified as a categorical exemption under FHWA regulations and that no further NEPA review was required. AR Doc. at 340. On August 31, 2010, plaintiff moved to reopen this lawsuit to challenge the interchange project under NEPA and the Endangered Species Act. On December 20, 2010, after defendants filed the Administrative Record of over 10,000 pages, plaintiff filed the instant motion seeking a preliminary injunction, which would maintain the current traffic congestion status quo. The legal issue before the Court in this preliminary injunction proceeding is whether the Federal Highway Department’s determination that the U.S. 281/ Loop 1604 interchange project is entitled to a categorical exemption (“CE”) from the NEPA is arbitrary and capricious. Though plaintiff contends that FHWA bears the initial burden of demonstrating its decision was valid, the agency’s decision is presumed valid under the Administrative Procedure Act (“APA”). Visiting Nurse Ass’n, Inc. v. Thompson, 447 F.3d 68, 72 (1st Cir.2006). The burden falls entirely on plaintiff to overcome the presumption and demonstrate a likelihood of success on its claim that FHWA’s decision does not meet even “minimal standards of rationality,” which is all that is required for the decision to survive deferential APA review. Gulf Restoration Network v. United States Dep’t of Transp., 452 F.3d 362, 368 (5th Cir.2006). Plaintiff also bears the burden of demonstrating its members are likely to suffer irreparable harm in the absence of preliminary relief, the balance of equities tips decidedly in plaintiffs favor, and an injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008). As summarized below, plaintiff has not met the prerequisites for obtaining preliminary injunctive relief. An Appendix is attached for those interested in a lengthy exposition, those who wish to appeal and those who suffer from insomnia. With respect to likelihood of success on the merits, plaintiff contends all projects affecting U.S. 281 or Loop 1604, which someday may look like Charlotte’s web, must be analyzed in a single NEPA document and that FHWA improperly segmented the interchange improvements from other projects in violation of NEPA. However, improper segmentation occurs only if the project at issue has no “independent utility.” Save Barton Creek Ass’n v. FHWA, 950 F.2d 1129, 1140 (5th Cir.1992). The agency made a reasonable finding that replacing the congested stop lights with direct connectors, along with other safety and mobility enhancements included in the project, will be extremely useful even if no other projects are undertaken in the U.S. 281 or Loop 1604 corridor. AR Doc. 340. Plaintiff next contends with respect to a likelihood of success on the merits that the interchange improvements do not qualify as a CE under FHWA regulations. However, plaintiffs argument is based largely on the cost and duration, neither of which is a material factor. FHWA may categorically exclude a project from further NEPA review so long as the agency determines, based on its experience and expertise, the project: (1) satisfies the general CE requirements and (2) does not involve “significant environmental impacts.” 23 C.F.R. § 771.117(a), (d); 23 C.F.R. § 771.115(b). A review of the Administrative Record reflects the FHWA rationally determined the project will have no significant impact and otherwise qualified as a CE based upon the extensive analyses and documents in the record. Although plaintiff interprets the regulations differently, the Fifth Circuit has made clear “[cjourts should defer to the agency’s interpretation of its own [CE] regulations.” West Houston Air Comm. v. FAA, 784 F.2d 702, 705 (5th Cir.1986). Plaintiff has also filed declarations from several individuals who criticize the FHWA’s decision and various aspects of the supporting analyses. These declarations are not part of the Administrative Record and plaintiff has not shown they meet an exception which renders them legally relevant to the determination of whether FHWA’s decision complied with NEPA. Though plaintiff attempts to create a “battle of the experts,” with each party asserting their analysis is more reasonable than the other’s, such attempt is not the proper procedural or substantive method for an appeal of this nature. Moreover, plaintiff does not dispute that defendants do indeed have karst invertebrate environmental experts on site with authority to immediately stop construction if a void, cave or suspected karst feature is discovered. Lanham Decl. ¶ 12. Only after confirmation by the geologist and permitted karst specialist that the karst feature does not qualify as a suitable habitat for endangered karst invertebrates will construction continue. Id. Under the highly deferential standard afforded to agencies pursuant to NEPA, however, it is not within the purview of the federal courts to intervene if the result was not arbitrary or capricious. Spiller v. White, 352 F.3d 235, 244 (5th Cir.2003). The agency has made its decision. The Court is “thus obligated to defer to [the agency’s] expert judgment.” Id. This Court holds the categorical exemption decision of FHWA was not arbitrary or capricious. Plaintiff has also failed to present sufficient evidence that it is likely to suffer irreparable injury as a result of any construction activities which may occur prior to a ruling on the merits. Plaintiffs declarants offer speculation about what they believe could occur. As a matter of law, however, simply alleging some possibility of irreparable injury does not support the issuance of a preliminary injunction, which is an extraordinary remedy never awarded as of right. Winter, 129 S.Ct. at 375-76. Plaintiffs declarants, residents of a subdivision adjacent to the project, complain that traffic will be diverted through them neighborhoods creating congestion, noise and air pollution. While the Court recognizes such projects create quite a kerfuffle (as opposed to a kartoffel) in surrounding areas, temporary construction disruption is a price of continued human migration and procreation. The endangered species list is not likely to see Homo sapiens added to it. “To be considered to be irreparable, the injury must be permanent or of long duration.” West Ala. Quality of Life Coal. v. FHWA, 302 F.Supp.2d 672, 683 (S.D.Tex.2004). The hypothetical effects on the neighborhood during the construction process, even if they were to occur, would be temporary and thus not irreparable. See id. (finding there was no showing of irreparable harm because, “while there may be temporary effects of the construction project such as inconvenience, increased traffic, and increased noise and air pollution ..., the project has a life expectancy of 33 months, which is not permanent or of long duration”). Plaintiff has not satisfied the remaining two requirements for injunctive relief. Plaintiffs interest in additional NEPA process is outweighed by the countervailing costs of delaying the project and prolonging the severe congestion at the interchange, which poses a threat to public safety, reduces the quality of life for the thousands of people who use the interchange every day, and creates thousands of hours of traffic delays each month. These same factors demonstrate an injunction would not serve the public interest, nor improve air or water quality. EPILOGUE What a piece of work is a man, How noble in reason, How infinite in faculties ... ! (Well, perhaps not.) The leaders of the twelve tribes of Israel taught their people to “[designate a place outside the camp where you can go to relieve yourself.” American GIs in the foxhole had a more odorous but less printable way of expressing the same idea. See also the common sense of Uncle Fred and Aunt Delia Grantham who built the outhouse away from their water well. Order Concerning U.S. Highway 281 Toll Road Project, Docket no. 106, at 2 (“They knew nothing about computers or air conditioning or environmental impact statements, but they were wise enough not to build the privy close to their water supply”) (Biery, J.). The fault, dear Brutus, is not in our stars, But in ourselves,... . Homo sapiens, who rely on the South Texas version of OF Man River apparently missed military basic training and those biblical lessons of protecting the Edwards, the latest examples being 54,000 and 400,000 gallons of human sewage spilled over the aquifer as a result of human hubris and unbridled suburban growth. Instead of the “X Files,” this drama could be called the “Yuck Files.” So much for computer technology saving people from themselves. Nor does there appear to be a little Dutch boy or a hoped-for powerful wizard behind the curtain who can save them either. Whether one is glass half-empty Cassandra or glass half-full Pollyanna, the water in the glass best be clean. A rabbi from Nazareth spoke of “lilies of the field,” “the least of those among us,” “reaping what one sows,” and “they know not what they do,” thoughts which take on new meaning in the context of stewardship, or ignominious lack thereof, of the natural world. To live those words in enlightened self-interest would require the better angels of Homo sapien nature. Insouciant humans seem to misunderstand they consist of 61.8% H20 and misunderestimate their folly in the use of 60% of water for green lawns in a semi-arid, drought prone region. Nice to look at, but does nothing to quench thirst or satisfy hunger. Sapiens is Latin for wise. If Homo sapiens suppress their instinct to survive and fail to care for the whole circle of life, including karst invertebrates, the species should be renamed Homo stupiditus, having breached the environmental contract between themselves and all the Little Critters. Ten years of extreme floods, droughts, blizzards, fires and hurricanes give new meaning to “I’ve seen fire and I’ve seen rain.” In Texas, this past March — the month which usually brings spring rains— was listed as the driest month of March in recorded history. Wildfires have spread across more than 700,000 acres and a fire in southwest Austin destroyed at least eight homes and damaged ten others on April 17, 2011. A prescient, and folliely impaired, judge wrote nine years ago that Mother Nature bats last and the top of the eighth is at hand. It is beginning to look like the bottom of the eighth inning. At the end of the game, We are all the same, Back to the Earth, From whence we came. Perhaps Homo sapiens will experience a Darwinian epiphany to take better care of their home before they return to it. The alternative is a Captain Kirk moment: “Beam me up, Scotty!” The motion for preliminary injunction is DENIED. Happy trails, and ramps, to you, 281. Signed on Earth Day, April 22, 2011. With grateful appreciation to Court family members Joani Sullivan. Gloria Christmas. Nathan Mechler, Chris Poage, Martin Strasser, Liane Noble, Neha Casturi, Edgar Ñapóles and these authors and sources: APPENDIX FACTUAL BACKGROUND The U.S. 281/Loop 1604 existing interchange at issue consists of three levels: U.S. 281 main lanes at the bottom level; frontage road intersections at the second level; and Loop 1604 main lanes at the third level. Both U.S. 281 and Loop 1604 are high volume roadways. All vehicles traveling from U.S. 281 North to Loop 1604 and vice versa must exit to the frontage roads and proceed through signalized intersections. Traffic on these roadways has increased substantially over the last ten years, causing delays at the frontage road signals. Congestion is substantially worse during peak periods. Administrative Record (“AR”) Doc 338 at 3. Currently, approximately 245,000 vehicles per day travel though the U.S. 281/Loop 1604 interchange, and this number is expected to exceed 490,000 by 2035, a projected increase of 100%. Id. Collisions are also a problem. Id. at 4. According to the San Antonio Police Department, 132 collisions were reported at the U.S. 281/Loop 1604 interchange in 2008, more than any other interchange in San Antonio. Id. The U.S. 281/Loop 1604 interchange improvements at issue include constructing four direct connectors, including auxiliary lanes and ramp modifications. The proposed project would also include additional safety and mobility enhancement not necessitated by the direct connectors. The proposed safety and mobility enhancements would include lighting improvements, sidewalks and pedestrian bridges. The limits of the interchange improvements extend from approximately Bitters Road to Redland Road on Loop 1604, and Bitters Road to Loop 1604 on U.S. 281 North. No additional right-of-way is required to build the project. AR Doc. 338 at 4. One measure of a roadway’s traffic handling capability is its Level of Service (“LOS”) rating. LOS ratings average from “A” (free flowing traffic) to “F” (traffic demand exceeds capacity). Id. Under current conditions, the U.S. 281/Loop 1604 interchange operates as a LOS of “F” during morning and afternoon peak hours. Id. PROCEDURAL BACKGROUND Plaintiff moves for a preliminary injunction barring clearing, construction and related activities for the proposed highway U.S. 281 and Loop 1604 interchange improvements against the Federal Highway Administration (“FHWA”), the executive directors of the Texas Department of Transportation (“TxDOT”), and the Alamo Regional Mobility Association (“ARMA”) in their official capacities. The preliminary injunction request focuses on plaintiffs National Environmental Policy Act (“NEPA”) claims. Plaintiff is not seeking to enjoin the United States Fish and Wildlife Service and states it intends to brief its Endangered Species Act claims in a separate motion for summary judgment. Plaintiffs NEPA allegations are: (1) The proposed project, approved as a documented categorical exclusion (“CE”) from NEPA and misleadingly labeled “operational” improvements to the U.S. 281/1604 interchange, is wholly inconsistent with the CE regulations given the project’s size, context, likely environmental impacts and substantial controversy; (2) The CE project has been illegally segmented from the other U.S. 281 and Loop 1604 improvements to avoid the environmental impact statement(s) (“EIS”) being prepared for U.S. 281 and Loop 1604, and building the CE project will impermissibly prejudice the EISs; and (3) Independent of segmentation, it is impossible to conclude that the CE project, added to the other 44.5 miles of improvements proposed for the U.S. 281/Loop 1604 interchange, mainly over the Edwards Aquifer recharge zone, does not add up to a significant cumulative impact. With respect to plaintiffs allegations regarding “prejudice to the EISs,” currently an EIS is being prepared on a 7.5 mile stretch of U.S. 281 (Loop 1604 to Borgfeld Road) and a separate EIS is being prepared for a 37 mile stretch of Loop 1604 (U.S. 90 West to IH 35 North). As set forth in its motion and four attached affidavits (Declaration of D. Lauren Ross, Ph.D., P.E., environmental engineer and water resources expert; Declaration of Bob Sartor, private citizen; Declaration of Reid Ewing, Ph.D., expert on transportation; Declaration of Richard Alies, AGUA member, AGUA board member and former AGUA technical research director), plaintiff contends allowing construction activities to proceed during the course of this case would result in irreparable harm to plaintiff, the environment, the public interest, and the ability of this Court to fashion an effective remedy upon final hearing of this case. Defendants argue plaintiff has not met its burden of showing it is entitled to a preliminary injunction. STATUTORY AND REGULATORY BACKGROUND In determining whether the CE action taken by the FHWA under NEPA should be enjoined, the standard established by the Administrative Procedure Act (“APA”), 5 U.S.C. § 706, applies. See North Carolina Alliance for Transp. Reform, Inc. v. United States Dep’t of Transp., 151 F.Supp.2d 661, 678 (M.D.N.C.2001) (“National Environmental Policy Act contains no independent private right of action but the ... APA expressly provides a right to judicial review of all final agency actions, including NEPA decisions”); see also 5 U.S.C. § 702 (“A person suffering legal wrong because of agency actions or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial relief thereof’). The application of this standard of review has been explained as follows: Under this very narrow standard of review, we may not weigh the evidence in the record pro and con. Instead, our role is to review the agency action to determine whether the decision was based on a consideration of the relevant factors and whether there was a clear error of judgment. Thus, if the agency considers the factors and articulates a rational relationship between the facts found and the choice made, its decision is not arbitrary or capricious. Indeed, the agency’s decision need not be ideal, so long as it is not arbitrary or capricious, and so long as the agency gave at least minimal consideration to relevant facts contained in the record. Harris v. United States, 19 F.3d 1090, 1096 (5th Cir.1994) (internal quotations and citations omitted.); see also Lodge Tower Condo. Ass’n v. Lodge Props., Inc., 85 F.3d 476, 477 (10th Cir.1996) (“Review under § 706 is narrow and the agency need only demonstrate that it considered relevant factors and alternatives after a full ventilation of issues and that the choice it made was reasonable based on that consideration.”) (quoting Mount Evans Co. v. Madigan, 14 F.3d 1444, 1453 (10th Cir.1994)). “Administrative action may be regarded as arbitrary and capricious only where it is not supportable on any rational basis and the fact that on the same evidence the reviewing court could have reached a contrary decision will not support a determination that the action was arbitrary and capricious.” Carlisle Paper Box Co. v. NLRB, 398 F.2d 1, 7 (3d Cir.1968); see also Kaplan v. Johnson, 409 F.Supp. 190, 196 (N.D.Ill.1976), rev’d on other grounds, 545 F.2d 1073 (7th Cir.1977); Green v. United States Coast Guard, 642 F.Supp. 638, 642 (N.D.Ill.1986) (citing to Kaplan and recognizing that “ ‘reviewing court is not barred from setting aside an agency decision when it cannot conscientiously find that the evidence supporting that decision is substantial,’ it may not ‘displace the [agency’s] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de ngvol ”). In addition, when an agency is acting within its “own sphere of expertise,” this Court’s review “must be very deferential.” Center for Marine Conservation v. Brown, 917 F.Supp. 1128, 1143 (S.D.Tex.1996); see also Loggerhead Turtle v. County Council, 120 F.Supp.2d 1005, 1013 (M.D.Fla.2000) (noting that court must be “most deferential” because agency’s “special scientific expertise” was involved). “An agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, the court might find contrary views more persuasive.” Center for Marine Conservation, 917 F.Supp. at 1143 (quoting Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)); see also Bennett v. Spear, 5 F.Supp.2d 882, 885 (D.Ore.1998) (finding that, when specialists express contrary views, agency given discretion to rely on “the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive”) (quoting Marsh, 490 U.S. at 378, 109 S.Ct. 1851). The choices by the Federal Highway Administration are entitled to a “presumption of regularity.” Loggerhead, 120 F.Supp.2d at 1013. An agency violates the APA, and in this case NEPA, if it: relies on factors Congress did not intend for it to consider, fails to examine an important aspect of the problem, offers an explanation for its decision that contradicts the evidence before the agency, or is so implausible that it cannot be attributed to a product of agency expertise. North Carolina Alliance for Transp. Reform, Inc. v. United States Dep’t of Transp., 151 F.Supp.2d 661, 679 (M.D.N.C.2001). As set forth in Sierra Club v. Babbitt, 15 F.Supp.2d 1274, 1279 (S.D.Ala.1998), this Court, in applying the arbitrary and capricious standard of review, may not: set aside an agency action that is rational, based on consideration of the relevant factors and within the scope of the authority delegated to the agency by the statute, “... the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found the choice made.’ ” (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). Under NEPA and its implementing regulations issued by the Council on Environmental Quality (“CEQ”), there are “three typical classes” of actions which require different levels of analysis. 40 C.F.R. § 1507.3(b)(2). 23 C.F.R. § 771.115 describes the three categories of actions which prescribe the level of documentation required by the FHWA in the NEPA process. First, when the agency proposes a “major [federal action[] significantly affecting the quality of the human environment,” NEPA requires the preparation of a comprehensive environmental impact statement (“EIS”). Id.; see also 40 C.F.R. § 1508.27; 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1502.1; 40 C.F.R. § 1508.11. The responsible federal agency first prepares a draft EIS and solicits public comments. 40 C.F.R. § 1503.1. The agency must then “assess and consider” the comments in drafting the final EIS. 40 C.F.R. § 1503.4; see also 40 C.F.R. § 1506.10(b). When the agency makes its final decision regarding the proposed action and alternatives discussed in the final EIS, the agency prepares a “concise public record of decision.” 40 C.F.R. § 1505.2. Where the significance of a proposed action is not clearly established, an agency may prepare an environmental assessment (“EA”) to determine whether an EIS is required. 23 C.F.R. § 771.115(c). The EA is a brief document containing sufficient information for the agency to determine whether to prepare an EIS or a finding of no significant impact (“FONSI”), which concludes the NEPA process. Id.; see also 40 C.F.R. § 1508.9(a)(1). Finally, CEQ’s regulations instruct agencies to identify a class of actions, named “categorical exclusions” or CEs, which normally “do not individually or cumulatively have a significant effect on the human environment” and are excluded from further NEPA review. 23 C.F.R. § 771.115(b); see also 40 C.F.R. § 1507.3(b)(2), 40 C.F.R. § 1508.4. CEs are “an integral part of the NEPA.” Clement v. LaHood, No. 09-1056, 2010 WL 1779701, at *6 (E.D.Va. April 30, 2010). Establishing and using CEs can reduce excessive paperwork by eliminating unnecessary preparation of environmental impact statements. 40 C.F.R. § 1500.4(p). CEQ has encouraged agencies to identify CEs using “broadly defined criteria which characterize types of actions that, based on the agency’s experience,” normally “do not cause significant environmental effects.” Guidance Regarding NEPA Regulations, 48 Fed.Reg. at 34,265 (July 28, 1983) (codified at 40 C.F.R. 1500, et seq.). Consistent with CEQs guidance, FHWA’s regulations define CEs as: [A]ctions which meet the definition contained in 40 C.F.R. 1508.4, and, based on past experience with similar actions, do not involve significant environmental impacts. They are actions which: do not induce significant impacts to planned growth or land use for the area; do not require the relocation of significant numbers of people; do not have a significant impact on any natural, cultural, recreational, historic or other resource; do not involve significant air, noise, or water quality impacts; do not have significant impacts on travel patterns; or do not otherwise, either individually or cumulatively, have any significant environmental impacts. 23 C.F.R. § 771.117(a). FHWA’s regulations specify 21 categories of actions which meet the CE criteria and normally do not require any further NEPA approvals within the agency. 23 C.F.R. § 771.117(c); see also 23 C.F.R. § 771.115(b). The regulations also provide that other actions: may be designated as CEs only after Administration approval. The applicant shall submit documentation which demonstrates that the specific conditions or criteria for these CEs are satisfied and that significant environmental effects will not result. 23 C.F.R. § 771.117(d); see also 23 C.F.R. § 771.115(b). The regulations contain a nonexclusive list of examples of the types of actions which may be designated as CEs after “Administration approval.” 23 C.F.R. § 771.117(d). It is undisputed the proposed interchange project is not on the list. In February of 2004, the FHWA and TxDOT entered into a Programmatic Agreement for implementing and applying the CE so long as the project has no significant environmental impact and otherwise meets the regulatory criteria discussed above. AR Doc. 26 at 11. The FHWA determined that the CE is appropriate because the proposed improvement to the U.S. 281/Loop 1604 interchange does not: * Induce significant impacts to planned growth on area land use; * Require the relocation of significant numbers of people; * Have a significant impact on any natural, cultural, recreational, historic or other resource; * Involve significant air, noise or water quality impacts; * Involve significant impacts on travel patterns and * Otherwise, either individually or cumulatively, have any significant environmental impacts. Plaintiff disagrees and files its motion for preliminary injunction seeking to stop construction on the project. STANDARDS OF REVIEW Preliminary Injunctive Relief Under the APA A preliminary injunction is an extraordinary remedy never awarded as of right. Winter v. Natural Res. Def. Council, 555 U.S. 7, 129 S.Ct. 365, 376, 172 L.Ed.2d 249 (2008). “The decision to grant a preliminary injunction is to be treated as the exception rather than the rule.” Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.1985). A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. Winter, 129 S.Ct. at 374 (citations omitted). The plaintiff must satisfy all four requirements. Id. at 375-76; Nichols v. Alcatel USA 532 F.3d 364, 372 (5th Cir.2008). As noted above, plaintiffs likelihood of success on the merits is evaluated under the deferential standards contained in the APA, 5 U.S.C. § 706. See Gulf Restoration Network v. United States Dep't of Transp., 452 F.3d 362, 367-68 (5th Cir.2006) (discussing NEPA claims review process under APA). The United States Court of Appeals for the Fifth Circuit recently reiterated that “[t]he APA prescribes a narrow and highly deferential standard.” Medina County Envtl. Action Ass’n v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir.2010). “This court may not overturn the agencies’ decisions unless they were ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ ” Id. (quoting 5 U.S.C. § 706(2)(A)). “A court’s role is not to weigh the evidence pro and con but to determine whether the agency decision ‘was based on a consideration of the relevant factors and whether there was a clear error of judgment.’ ” Delta Found., Inc. v. United States, 303 F.3d 551, 562 (5th Cir.2002) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). In reviewing an agency’s decision under the arbitrary and capricious standard, there is a presumption that the agency’s decision is valid, and the plaintiff has the burden to overcome that presumption by showing that the decision was erroneous. Texas Clinical Labs. Inc. v. Sebelius, 612 F.3d 771, 775 (5th Cir.2010). Plaintiffs assertion that FHWA bears the “initial burden” of demonstrating the validity of its decision is incorrect. The burden falls squarely on the plaintiff to overcome the presumption of the validity and demonstrate a substantial likelihood that the FHWA’s decision will not survive deferential APA review. Thus, plaintiff bears “a heavy burden of proof.” Mercy Hosp. v. Heckler, 777 F.2d 1028, 1032 (5th Cir.1985). In sum, “[u]nder the APA, the administrative record is reviewed to determine whether the challenged action was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law....” Louisiana ex rel. Guste v. Verity, 853 F.2d 322, 326 (5th Cir.1988) (citing 5 U.S.C. § 706(2)(A)-(D)). The role of the Court is to “review the agency action to determine whether the decision was based on a consideration of the relevant factors and whether there was a clear error of judgment.” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 11 L.Ed.2d 443 (1983). As noted above, “the agency’s decision need not be ideal, so long as it is not arbitrary or capricious, and so long as the agency gave at least minimal consideration to relevant facts contained in the record.” Harris, 19 F.3d at 1096 (quoting Motor Vehicle Mfrs. Ass’n of the United States, 463 U.S. at 43, 103 S.Ct. 2856). Accordingly, under the standard of review set forth in the Administrative Procedure Act, review under the arbitrary and capricious standard is narrow, and the Court cannot substitute its judgment for that of the agency. 5 U.S.C. § 706(2)(A). A court will reverse a decision as arbitrary and capricious only if the agency relies on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation which runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Vehicle Mfrs. Ass’n of the United States, 463 U.S. at 43, 103 S.Ct. 2856; Texas Oil & Gas Ass’n v. EPA, 161 F.3d 923, 933 (5th Cir.1998); see also Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 377, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989); Lands Council v. McNair (Lands Council II), 537 F.3d 981, 987 (9th Cir.2008) (en banc). Although this standard of review is a narrow, highly deferential one, our inquiry still must be thorough and probing. Louisiana Crawfish Prods. Ass’n v. Rowan, 463 F.3d 352, 355-56 (5th Cir.1991). The Court must assure itself the agency examined the relevant data and articulated a satisfactory explanation for its action, “including a rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962). The Administrative Record The scope of judicial review under the APA is limited to the administrative record compiled by the agency. Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). Extra record materials may not be considered absent “unusual circumstances.” Medina County Envt’l Action Ass’n v. Surface Transp. Bd., 602 F.3d at 687, 706 (5th Cir.2010). As a general rule, a court may not “substitute [its] own judgment for that of the agency by considering expert testimony that was not made a part of the administrative record.” Friends of Richards-Gebaur Airport v. FAA, 251 F.3d 1178, 1190 (8th Cir.2001) (upholding CE and refusing to consider extra-record “citizen letters and expert testimony”). In support of its motion, plaintiff filed declarations which are not part of the administrative record. ARMA moves to strike plaintiffs evidence in support of its motion for preliminary injunction (docket no. 142) because it goes beyond the scope of the administrative record, and consists of opinion testimony by purported expert witnesses and inadmissible opinion testimony by lay witnesses. In the event the Court is inclined to consider plaintiffs’ declarations, defendants have filed declarations in response refuting those submitted by plaintiff. Plaintiff did not move to supplement the administrative record nor has it made any showing that any particular extra-record material falls within the unusual circumstances identified by the Fifth Circuit. Nonetheless, because the Court requested additional information not apparent from the record, and because defendant has filed rebuttal declarations, the Court will out of an abundance of caution consider plaintiffs extra-record submissions. To this extent, ARMA’s motion to strike (contained within docket no. 142) is DENIED. However, the Court has not considered extra-record evidence submitted by plaintiff which is unreliable, conclusory, not credible or inadmissible. To this extent, ARMA’s motion to strike (contained within docket no. 142) is GRANTED. Plaintiff’s Request for Oral Argument Plaintiffs request that the Court set a hearing on its motion for preliminary injunction. An evidentiary hearing is not always required before a court grants or denies a preliminary injunction. If factual matters are not in dispute, no oral hearing is required and the parties need only be given “ample opportunity to present their views of the legal issues involved.” Kaepa, Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir.), cert. denied, 519 U.S. 821, 117 S.Ct. 77, 136 L.Ed.2d 36 (1996): see also Miller Brewing Co. v. Ft. Worth Distrib. Co., 781 F.2d 494, 496 (5th Cir.1986); Commerce Park v. Mardian Constr. Co., 729 F.2d 334, 341 (5th Cir.1984). On the other hand, “where factual disputes are presented, the parties must be given a fair opportunity and a meaningful hearing to present their differing versions of those facts before a preliminary injunction may be granted.” Kaepa, Inc., 76 F.3d at 628 (internal quotations omitted); see also Commerce Park, 729 F.2d at 341. The basic question is whether, a hearing will add anything material to the Court’s consideration of the case. Parker v. Ryan, 959 F.2d 579, 584 (5th Cir.1992); Worlds of Wonder, Inc. v. Veritel Learning Sys., Inc., 658 F.Supp. 351, 354 n. 2 (N.D.Tex.1986). Here, the Court does not believe that oral argument will add anything material to the Court’s consideration of this case. Plaintiffs request for a hearing is therefore DENIED. DISCUSSION Plaintiff has Failed to Demonstrate a Substantial Likelihood of Success on the Merits Plaintiff has not Shown a Likelihood of Success on its “Segmentation” Claim Plaintiff argues “the CE project has been illegally segmented from the other 281 and 1604 improvements to avoid the Environmental Impact Statements (“EIS”) being prepared for 281 and 1604, and building the CE project will impermissibly prejudice the EISs.” Currently, an EIS is being prepared on a 7.5 mile stretch of U.S. 281 (Loop 1604 to Borgfeld Road), and a separate EIS is being prepared for a 37 mile stretch of Loop 1604 (U.S. 90 West to IH-35 North). “Improper segmentation” is “an attempt by an agency to divide artificially a major Federal action into smaller components to escape the application of NEPA to some of its segments.” Save Barton Creek Ass’n v. FHWA, 950 F.2d 1129, 1140 (5th Cir.1992) (internal quotations omitted). “To determine whether a single project is improperly segmented into multiple parts, this Circuit applies a four-part test which asks whether ‘the proposed segment (1) has logical termini; (2) has substantial independent utility; (3) does not foreclose the opportunity to consider alternatives; and (4) does not irretrievably commit federal funds for closely related projects.’ ” O’Reilly v. United States Army Corps of Eng’rs, 477 F.3d 225, 236 (5th Cir.2007) (quoting Save Barton Creek Ass’n, 950 F.2d at 1140). The central factor, however, is whether the project has “independent utility.” Save Barton Creek Ass’n, 950 F.2d at 1140. Segmentation is improper only if the project “has no independent justification, no life of its own, or is simply illogical when viewed in isolation.” Id. at 1139 (emphasis in original). Because the interchange improvements at issue here certainly have independent utility, plaintiffs segmentation claim does not have a substantial likelihood of success on the merits. Additionally, the “other projects” referenced in plaintiffs motion— plans for possible expansion of portions of U.S. 281 and Loop 1604 — cannot be the subject of improper segmentation. “It is important to note that ‘projects,’ for the purposes of NEPA, are described as ‘proposed action,’ or proposals in which action is imminent.” O’Reilly, 477 F.3d at 236 (quoting 40 C.F.R. § 1508.23). Here, FHWA has published notices of intent to draft EISs for the possible expansion of portions of U.S. 281 and Loop 1604. See Notices: Federal Highway Administration-Environmental Impact Statement: Bexar County, Texas, Fed.Reg. 32,684 (July 8, 2009); Notices: Federal Highway Administration-Environmental Impact Statement: Bexar County, Texas, 75 Fed. Reg. 18, 941 (April 13, 2010). However, the range of alternatives to be analyzed in the EISs does not appear to have been finalized, and the agency has not published even a draft of any EIS. Thus, nothing is imminent. Consequently, plaintiff cannot predicate a segmentation claim on the preliminary plans for possible expansion of U.S. 281 or Loop 1604. More importantly, the FHWA rationally determined the interchange improvements will have substantial independent utility, regardless of whether other projects are undertaken in the U.S. 281 and Loop 1604 corridors, because the improvements are designed to ameliorate the serious safety and congestion problems in the project area. AR Doc. 340; Doc. 338 at 1, 3-4; Doc. 120; Doc. 112. The agency also found the project has “logical termini” derived from the Operational Analysis, (AR Doc. 112), and that additional projects along Loop 1604 or U.S. 281 “are not needed in order for this proposed project to perform its intended purpose.” AR Doc. 340 at 1; Doc. 120. The agency’s conclusion is reasonable and plaintiff cites no authority to the contrary. Plaintiffs assertion that the interchange improvements will “invariably prejudice the alternatives” evaluated in the other EISs under development is unsupported. Because the interchange project does not “dictate” that any other specific project be undertaken, it will not “restrict consideration of alternatives.” See Save Barton Creek Ass’n, 950 F.2d at 1142. Finally, plaintiff cites no evidence showing the project will irretrievably commit federal funds to any other project. In sum, plaintiffs segmentation claim is factually unsupported by the record and foreclosed by controlling precedent. See id. (rejecting claim that construction of Austin Outer Loop was improperly segmented where segments at issue would “serve a highly useful urban traffic purpose even if no other segments of the Outer Loop are ever constructed” and did not “dictate that any other segment must be built.”); O’Reilly, 477 F.3d at 237 (finding no improper segmentation where first phase of three-phase development plan could “stand alone without requiring” implementation of other phases, even though all three phases had originally been planned as a single project); see also Utahns for Better Transp. v. United States Dep’t of Transp., 305 F.3d 1152, 1184 (10th Cir.2002) (finding no segmentation where “[e]aeh component can serve its transportation purpose whether or not the other projects are built. The components, although interrelated as part of an overall transportation plan, should individually contribute to alleviation of the traffic problems.”); Coalition of Sensible Transp. v. Dole, 826 F.2d 60, 69 (D.C.Cir.1987) (finding interstate widening project was not improperly segmented from interchange improvements because improvements served legitimate purposes “in the absence of the 1-270 expansion, and thus are sufficiently independent. They are expected to result in less congestion at interchanges, facilitate local traffic, and provide access to mass transit.”); Clement v. LaHood, No. 09-1056, 2010 WL 1779701, at *6 (E.D.Va. April 30, 2010) (finding no segmentation because “the Project has independent utility, ameliorating traffic on westbound I-66.”). Accordingly, plaintiff has not shown a likelihood of success on the merits of its segmentation claim for preliminary injunction purposes. FHWA’s Decision to Approve the Project as a Categorical Exclusion (“CE”) In support of its request for a preliminary injunction, plaintiff also argues the decision to approve the U.S. 281/Loop 1604 interchange as a CE is arbitrary and capricious. Specifically, plaintiff contends: it defies common sense to conclude that a $145 million highway project extending six miles along Loop 1604 and three miles along U.S. 281 over the recharge zone of San Antonio’s sole-source, Edwards Aquifer water supply, passing though and over the head of existing businesses and neighborhoods, and requiring more than two years of construction will not have any significant direct, indirect or cumulative impacts on travel patterns or the human environment. One of the aspects of this case which is most troubling to plaintiff is the fact that defendants have disclosed so little information about their proposed project, and performed so few analyses, that the conclusion of no significant impacts effectively amounts to a “trust us” approach. Initially, the Court notes that the cost and scope of the project are not material factors under FHWA regulations. Rather, “the primary question to be answered in connection with the highway project pertain[s] not to its size and scope, but to whether it would have significant environmental impacts.” Florida Keys Citizens Coal., Inc. v. United States Army Corps of Eng’rs, 374 F.Supp.2d 1116, 1140 (S.D.Fla.2005). A CE may be appropriate “even in environmentally sensitive areas, so long as the applicable criteria and documentation are satisfied.” See id. at 1140 (upholding CE for roadway improvements resulting in loss of 83.9 acres of wetlands); see also Krichbaum v. United States Forest Serv., 17 F.Supp.2d 549, 558 (W.D.Va.1998) (upholding CE for project in municipal watershed). Although plaintiff asserts the words “direct connectors” and “interchange” do not appear in the list of examples of projects which typically qualify for a CE contained in the regulations, the list is nonexclusive. Other projects may be categorically ex-eluded as long as FHWA determines, based on its experience and expertise, that the projects: (1) satisfy the general CE requirements and (2) do not involve “significant environmental impacts.” 23 C.F.R. § 771.117(a); . 23 C.F.R. § 771.115(b): see also Public Interest Research Group v. FHWA 884 F.Supp. 876, 892 (D.N.J.) (upholding CE for two entirely new high occupancy vehicle (“HOY”) lanes added to twenty-one miles of highway, even though HOV lanes did not fit squarely within any of the regulatory examples), aff'd, 65 F.3d 163 (3d Cir.1995); Ware v. FHWA No. 04-2295, 2006 WL 696551, at *12, *21 (S.D.Tex. Mar. 15, 2006) (upholding CE for project which did not fit squarely within regulatory examples and included braided ramps (one over the other) reaching height of seventy feet, “rehabilitating the pavement, replacing the bridge structures, reconstruction of access ramps, improvements to direct connectors, adding auxiliary lanes, reversing and/or relocating ramps, providing U-turns, and related projects”), aff'd 255 Fed.Appx. 838 (5th Cir.2007). The administrative record documents that ARMA, TxDot and the FHWA collaboratively developed an extensive analysis of the potential environmental impact of the project to determine whether it qualified as a CE. AR Doc. 338. The agencies also prepared a detailed biological assessment of the potential effects of the project on endangered karst invertebrates — none of which has been documented to exist in the project limits. AR Doc. 218; AR Doc. 338 at 40-41, 50-93. Karst invertebrates are certain spiders and other arachnids, beetles, and millipedes which inhabit caves and karst features. Center for Biological Diversity v. United States Fish & Wildlife Serv., 202 F.Supp.2d 594, 598 n. 4 (W.D.Tex.2002) (Biery, J.). Nine species of karst invertebrates have been listed as endangered. Id. Although none has been found at the construction site, the area is consistent with supporting two out of the nine endangered karst invertebrates: the Rhadine exilis and Rhadine infemalis. FHWA and TxDot also consulted with the United States Fish and Wildlife Service, the agency responsible for Environmental Species Act compliance, who concurred that the project is not likely to significantly affect any endangered karst invertebrates. AR Doe. 244. In assessing potential impacts on roadway capacity and traffic patterns, the agencies also considered an independent Operational Analysis. AR Doc. 112. Finally, the agencies conducted public meetings and considered the public’s input on the projects. AR Doc. 151; AR Doc. 337; AR Doc. 338 at 93-95. After considering all of the information and applying its experience and expertise, the FHWA determined based on a 10,000 page administrative record that the project qualified as a CE under its regulations and the Programmatic Agreement between FHWA and TxDot. AR. Doc. 340. The document is 94 pages long. Id. The agency found there would be only insignificant impacts to planned growth and land use; no relocations; and no significant impacts to natural resources or to air, noise or water quality, including the Edwards Aquifer. Id. FHWA also found that, although there would be some impacts to traffic patterns, they did not rise to the level of significance. Id. FHWA further found the project is not likely to adversely affect any endangered karst invertebrates. AR. Doc. 340 at 1. Finally, FHWA determined the type of work included in the project was consistent with the regulatory examples of projects which typically qualify for a CE. AR Doc. 340 at 2. Accordingly, FHWA approved the project as a CE. Id. Plaintiff primarily takes issue with two aspects of the agency’s analysis. First, plaintiff disputes the FHWA’s finding that the interchange improvements will not expand the capacity of U.S. 281 and Loop 1604. A review of the administrative record and relevant case law demonstrates that FHWA rationally determined the project would not increase the overall capacity of U.S. 281 or Loop 1604 because no new through-lanes would be added. AR Doc. 340; Doc. 338 at 1; Doc. 112 at 12; see Ware, 2006 WL 696551, at *26 (upholding FHWA’s approval of project as CE based in part on finding that “the project would not add general purpose main travel lanes and instead involved changes in ramps, mainlines, and connectors for safety and not capacity improvements”). Plaintiff submits an outside-the-record declaration from an expert who has a different opinion. Ewing Deck In the declarant’s view, FHWA’s regulations mandate that the agency prepare a more in-depth assessment than a CE for any project which reduces congestion at a point along a roadway in an urban and congested area. His the view is that any project designed to ameliorate a congested point along a roadway increases the capacity of the roadway because, as congestion is reduced, the rate of vehicles passing the point increases. Ewing Deck ¶¶ 19-29. The declarant further opines that any increase in highway capacity in an urban and congested area results “in significant impacts to travel patterns, planned growth and land use,” id. at ¶ 7, rendering the project ineligible for a CE under FHWA regulations. This proposition is unsupported by regulatory language and contrary to relevant case law. See e.g., City of Alexandria v. FHWA 756 F.2d 1014, 1016, 1012-22 (4th Cir.1985) (upholding CE for project “designed to reduce congestion and travel times” on congested roadway in major urban area); Clement v. LaHood, No. 09-1056, 2010 WL 1779701, at *1, *13 (E.D.Va. April 30, 2010) (upholding CE for spot improvement project “to relieve traffic congestion in the westbound lanes of Interstate 66”); Ware v. FHWA, No. 04-2295, 2006 WL 696551, at *1 (S.D.Tex. Mar. 15, 2006) (upholding CE for variety of roadway improvements designed to alleviate “severe traffic congestion” on interstate near Houston, Texas); Van Raden v. City of Portland, No. 01-233, 2001 WL 34047031, at *1, *8 (D.Or. May 31, 2001) (denying motion to enjoin project approved as CE which was designed to alleviate “frequent traffic congestion and accidents” at railroad crossing in Portland, Oregon); Public Interest Research Group v. FHWA 884 F.Supp. 876, 882, 892 (D.N.J.1995) (upholding CE for construction of new HOV lanes which “would reduce congestion in the affected area of Route 287, reduce vehicle miles of travel, ... and reduce travelers’ trip time.”). There is contrary authority which is distinguishable. West v. Secretary of Transp., 206 F.3d 920, 924, 928 (9th Cir.2000), involved “an entirely new” interchange designed to accommodate substantial new development, not improvements to an existing interchange in an area which is already highly developed. The Court also declined to adopt a “per se rule that all highway interchanges require an EA,” id. at 929 n. 10, which is the ruling plaintiff is proposing. Moreover, the FHWA acknowledged the project will impact traffic patterns by removing traffic from the current signalized intersections to the new direct connector ramps. The agency det