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CORRIDOR H ALTERNATIVES, INC. v. SLATER

October 7, 1997

CORRIDOR H ALTERNATIVES, INC., et al., Plaintiffs,
v.
RODNEY SLATER, Secretary, U.S. Department of Transportation, et al., Defendants.



The opinion of the court was delivered by: HOGAN

 Pending before the Court are the parties' cross motions for summary judgment. The Court has received a voluminous administrative record and extensive briefing from the parties on these issues; the Court has also received briefs from a group of amici curiae. The Court held a hearing on these motions on September 10, 1997. After considering the arguments at the hearing and the submissions of the parties and of amici, the Court will deny plaintiffs' motion for summary judgment and will grant defendants' motion for summary judgment.

 I. Statutory Overview and Factual Background

 This case involves the Corridor H project, which is part of the Appalachian Highway Development System. Congress authorized the AHDS to provide highway access to the region in order to "open up an area or areas where commerce and communication have been inhibited by lack of adequate access." 40 U.S.C. app. § 201(a). The highway for the Corridor H project was originally scheduled to stretch from Interstate 79, near Weston, WV, to Interstate 81, near Strasburg, VA; the project has since shortened, and would now stop at the West Virginia-Virginia border.

 Federally-funded highway projects such as the Corridor H project must comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4347. The statute does not mandate substantive choices or decisions, but it sets forth procedural requirements for the decision-making process. The statute requires that an Environmental Impact Statement (EIS) be prepared for any "major Federal action significantly affecting the quality of the environment." 42 U.S.C. § 4332; 40 C.F.R. 1501. The statute prescribes the content of the EIS; among other things, it must include a "detailed statement" that discusses (1) the environmental impact of the proposed action, (2) adverse environmental effects that cannot be avoided, and (3) alternatives to the proposed action. 42 U.S.C. 4332(2)(C). Where an EIS is required, the agency must also prepare a Record of Decision (ROD) that sets forth the chosen action and the analysis behind that decision. *fn1" 40 C.F.R. § 1502.2

 When new information or changes in the proposed action create significant environmental impacts that were not evaluated in the FEIS, the agencies must issue a Supplemental EIS (SEIS) to discuss the new impacts. 23 C.F.R. § 771.130(a). However, an SEIS is not necessary where changes do not result in significant impacts or where there are no new impacts not already considered in the FEIS. 23 C.F.R. § 771.130(a),(b).

 In addition to obligations under NEPA, federal highway projects often have obligations under Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303. That statute affects projects that require the "use of publicly owned land...of an historic 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. By statute, such projects may be approved only if (1) there is no prudent and feasible alternative and (2) all possible planning has been taken to minimize harm to the protected land. Id. However, unlike NEPA, which applies to all federal highway projects, this statute is triggered only if a project uses protected lands. *fn2" If no such protected lands are used by the project, then no Section 4(f) duties are implicated.

 The story of the Corridor H project and NEPA compliance is fairly complex. Study and planning for the project began in the late 1970's and the agencies involved produced a Draft Environmental Impact Statement (DEIS) in 1981. Shortly thereafter, the project was suspended. The project remained suspended until 1990, when defendants Federal Highway Administration (FHWA) and West Virginia Department of Transportation (WVDOT) began collaboration on a Supplemental Draft EIS (SDEIS) to account for new studies, changes in alternatives, and other effects of passing years. They prepared the SDEIS in two stages: first, a Corridor Selection draft (CSDEIS), and second, an Alignment Selection draft (ASDEIS). The CSDEIS, issued in 1992, examines potential corridors (2000 feet wide sections) for improvement or for a new highway. The ASDEIS, issued in 1994, examines some alternative plans for the project, including the four-lane Build Alternative, the two-lane Improved Roadway Alternative, and the No Action Alternative.

 FHWA issued an FEIS in April 1996. The FEIS identifies defendants' choice of the four-lane Build Alternative as the Preferred Alternative, with a corridor that stretches over 100 miles from Elkins, WV to the West Virginia-Virginia border. The Preferred Alternative provides for the construction of new, four-lane highway segments for much of the length of the project. The FEIS includes two agreements that govern post-FEIS implementation of the program. First, the FEIS includes a Programmatic Agreement, which establishes a procedure for compliance with Section 106 of the National Historic Preservation Act. Second, the FEIS includes a Migration Agreement to deal with potential migration of the corridor placement prior to final FHWA approval of the project. According to defendants, these agreements are intended to ensure compliance with Section 4(f) of the Department of Transportation Act. In order to guarantee this compliance, the ROD-- issued August 2, 1996-- conditioned final approval of the project on fulfillment of these agreements. This arrangement essentially recognizes that compliance with Section 4(f) has not yet been achieved, but it makes final approval of the project plans conditional on that compliance.

 Plaintiffs' Complaint raises four alleged defects with defendants' decision to support the four-lane Build Alternative as the Preferred Alternative. First, in Count One, plaintiffs argue that defendants have violated the procedural requirements of NEPA by failing to consider a two-lane, improved roadway alternative in either the FEIS or ROD. Second, in Count Three, *fn3" they argue that modifications in the alignment of the corridor since the FEIS was issued mandate the preparation of an SEIS, which defendants have declined to do. Third, in Count Four, plaintiffs allege that defendants must document compliance with Section 4(f) of the DOTA in either the FEIS or ROD, and that defendants cannot escape this requirement by making final acceptance of the project conditional on eventual compliance. Finally, in Count Five plaintiffs allege that the project, as planned, will improperly use Section 4(f) sites in violation of the law.

 II. Standards of Review

 NEPA directs the agency only to take a hard look at environmental issues; it does not mandate any substantive result. Therefore, the Court reviews decisions in this area under APA standards. Citizens Against Burlington, Inc. v. Busey, 290 U.S. App. D.C. 371, 938 F.2d 190, 194 (D.C. Cir. 1991), cert denied, 502 U.S. 994, 116 L. Ed. 2d 638, 112 S. Ct. 616 (1991); Tongass Conservation Society v. Cheney, 288 U.S. App. D.C. 180, 924 F.2d 1137, 1140 (D.C. Cir. 1991). Similarly, the Court applies an APA standard of review to challenges of agency compliance with Section 4(f). Citizens to Preserve Overton Park, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). Therefore, the Court will review all agency decisions or determinations in this case under the deferential APA standard. *fn4"

 Under that standard, the Court may set aside only those final actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706 § (a)(2). The Court's role is not to judge the wisdom of decisions but is simply to consider whether the decisions were based on a consideration of relevant factors and whether there was a "clear error of judgment." Overton Park, 401 U.S. at 416.

 Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). There is a genuine issue of fact only if there is such evidence that a reasonable jury could return a verdict for the non-moving party; a fact is material only if it might affect the outcome of the suit under applicable law. Id. at 248.

 The present case does not present substantial questions of fact. The Court has a voluminous administrative record that documents the review process undertaken by defendants. There is no dispute as to the documents contained in the record, only as to what those documents mean. Thus, the primary issues in this case are legal questions of whether defendants have acted properly according to the relevant statutes and regulations, not factual questions of what defendants actually did. These questions are properly resolved at the summary judgment stage.

 III. NEPA Counts

 Plaintiffs argue that defendants have violated the NEPA in two ways. First, they argue that defendants failed to adequately consider the improvement and use of existing roadways as an alternative to the building of a new, four-lane highway, which defendants have chosen as the Preferred Alternative. Second, they argue that defendants have made changes in the Preferred Alternative since the completion of the FEIS, and that these changes require the preparation of a Supplemental EIS (SEIS) before the project can proceed.

 Plaintiffs argue that the FHWA failed to properly consider alternatives to the Preferred Alternative. Specifically, plaintiffs argue that there was insufficient consideration of their favored alternative-- the Improved Roadway Alternative (IRA) or Resurfacing, Restoration, Rehabilitation (RRR)-- which consists of taking existing two-lane roadways and improving them to handle increased traffic. *fn5" Defendants contend that they looked at the alternative and that they decided that it could not meet the needs of the project. However, defendants did not discuss the alternative extensively in the FEIS or ROD.

 Under NEPA, defendants cannot identify a Preferred Alternative without considering and discussing other alternative means of achieving their goal. To that end, the FEIS must contain a discussion of these alternatives to the chosen plan. 42 U.S.C. § 4332(2)(C)(iii). However, NEPA does not require an agency to ultimately choose one alternative or another; it only requires that the agency take a "hard look" at environmental impact and at all alternatives. City of Grapevine, Texas v. Department of Transportation, 305 U.S. App. D.C. 149, 17 F.3d 1502, 1504 (D.C. Cir. 1994); Citizens Against Burlington, Inc. v. Busey, 290 U.S. App. D.C. 371, 938 F.2d 190, 195 (D.C. Cir. 1991). See ...


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