The opinion of the court was delivered by: Stanley Sporkin, United States District Court
This matter comes before the Court on Cross-Motions for Summary Judgment. *fn1 The relevant undisputed facts are set forth below.
The Woodrow Wilson Bridge (the "Bridge") is a six-lane drawbridge linking interstates I-495 and I-95. It is designed to carry approximately 75,000 vehicles per day across the Potomac river. It lies a few miles south east of the Nation's Capitol and just north of the historic City of Alexandria, Virginia. The Bridge was opened to traffic in 1961. Added use in recent years has caused increased traffic problems on the Bridge and at its interchanges. Travel demand across the Bridge now far exceeds the capacity for which it was designed. Projected travel in 2020 is estimated around 275,000 vehicles per day, requiring up to 18 lanes through the Bridge corridor. In part because of these projections, Congress passed the Woodrow Wilson Memorial Bridge Authority Act of 1995, providing for large-scale improvements at the river crossing site. It is the general consensus that the Woodrow Wilson Bridge needs to be replaced.
On November 25, 1997, the Federal Highway Administration ("FHWA") issued its Record of Decision ("ROD") approving a $1.6 billion highway project (the "approved project") which calls for replacing the Bridge with two parallel drawbridges, each with space for four general purpose lanes, one merge/diverge lane, and future accommodation of one High Occupancy Vehicle ("HOV") or "other type" lane. *fn2 The two new bridges would increase by about 260% the width of the river crossing now served by the Bridge and would rise an additional twenty feet above the Potomac River. The approved project also entails reconstructing a five mile stretch of the connecting interstate routes 495 and I-95 to accommodate twelve lanes: eight general purpose lanes, two merged/diverge lanes and two HOV lanes. In addition, the approved project authorizes substantial redesign and reconstruction of the four interchanges on either side of the bridge. The drawbridges would pass through Alexandria, Virginia's Historic District thirty feet south of the Bridge's present location.
Alexandria is one of America's most historic cities. Approximately one square mile of Alexandria is listed as a National Register Historic District. This District preserves the atmosphere of an early Virginian town, and contains three individually-designated National
Historic Landmarks. *fn3 The approved project would pass through the southernmost portion of Alexandria four blocks south of the Alexandria National Historic Landmark District.
The initial step to replace the Woodrow Wilson Bridge began in 1989 when the FHWA held a Bridge improvement design competition. While nothing substantial emerged from this effort, on May 17, 1990, the FHWA published a Notice of Intent to prepare a Draft Environmental Impact Statement ("DEIS"). The Notice stated that the purpose of the DEIS was to evaluate proposals to "improve the Woodrow Wilson Bridge and the I-95 approach roadway network between Telegraph Road in Virginia, and Indian Head Highway in Maryland." 55 Fed. Reg. 20556-02 (May 17, 1990).
Pursuant to the May 17 Notice, the first DEIS was published in August 1991. Joint Appendix at pp. 003371-3757. *fn4 It contained detailed evaluations of six alternatives requiring construction of a new river crossing and improved interchanges (so-called "build" alternatives), and an evaluation of one alternative requiring only repair of the existing Bridge (the "no build" alternative). All of the build alternatives presented in the 1991 DEIS were comprised of twelve lanes or more. JA003376-78. Furthermore, the 1991 DEIS twelve-lane build alternatives all called for physical separation of the local and express traffic, and complete reconstruction of certain interchanges. Despite the forseeable enormity of the construction required by the project, the 1991 DEIS included only three pages of analysis of potential construction impacts resulting from the various build alternatives.
In early 1992 the FHWA formed an independent review team ("IRT") to review and identify areas in the 1991 DEIS that might be challenged in court. JA003878. The IRT was composed of government attorneys and related professionals from the FHWA, Maryland, Virginia and the District of Columbia. JA003880. Although the IRT stated that the DEIS was "adequate," it found several serious deficiencies in the 1991 DEIS, including failure to discuss construction impacts adequately, failure to critically analyze the assumption that HOV lanes would be added to the Beltway, and failure to evaluate additional regional impacts adequately. Additionally, the IRT noted that the National Historic Preservation Act ("NHPA") Section 106 analysis had not yet been initiated. JA003879. Shortly after the IRT concluded its review the FHWA ran a traffic analysis for a ten-lane river crossing. JA003898.
In June, 1992, the FHWA formed a Coordination Committee, comprised of elected officials and senior government executives from affected jurisdictions to coordinate project development. The FHWA intended to arrive at its preferred alternative project design through a "funneling" process. Accordingly, in the Spring of 1994 the Coordination Committee solicited suggestions for project alternatives from all interested individuals and organizations. While most of the suggestions the Committee received dealt with the river crossing portion of the project, the entire five-mile corridor was open for comment. In evaluating suggestions, the Committee applied a stepwise process of elimination. The Committee first weeded out suggestions it deemed duplicative, beyond the scope of the study, technically infeasible, or not in keeping with the project's purpose and need.
After initial screening, the FHWA combined the remaining suggestions into "unique and distinct crossing options and project area improvements." JA000068. These were then merged into a set of "end-to-end" alternatives: i.e. alternatives covering all facets of the project. The Coordination Committee reduced the number of end-to-end alternatives by applying three Measures of Effectiveness ("MOE"). The final MOE application results were presented in the January 1996 Supplemental Draft EIS ("SDEIS"). The six 1996 SDEIS build alternatives all had twelve lanes. Thus, the January 1996 SDEIS contained six "end-to-end" project alternatives, the only major design difference between them being the form (e.g. bridge or tunnel) and location of the river crossing.
Pursuant to the Clean Air Act, in May 1996, the Region III Administrator of the FHWA asked the Transportation Planning Board ("TPB") to determine regional air quality conformity for a Bridge replacement with twelve lanes but "opening with only 10-lanes until the conditions for multi-modal, regional travel are reached." [Ex. 75.] In July, 1996, the TPB issued a draft conformity analysis for a "new 10 lane facility with either a $1.00 or $1.50 toll each way." [Ex. 76 at JA005185. para 130.] The draft conformity analysis found that a ten-lane bridge replacement with a $1.00 to $1.50 toll would conform to National Capital Region air quality standards. *fn5
On September 27, 1996, days after the close of the comment period on the July 1996 SDEIS and nine days after the conformity assessment was approved, the Coordination Committee selected its Preferred Alternative. Then, pursuant to NEPA, the study team began preparation of the Final EIS ("FEIS"). The FEIS was released on September 2, 1997.
The FEIS explains the omission of ten-lane alternatives by stating that such configurations "cannot satisfactorily address the transportation needs of the region." FEIS JA000109-113. The FEIS reports that the ten-lane, no-HOV option was considered "in the early stages of the study . . . [but] was dropped at that time . . . because it was insufficient from a functional, safety and operational standpoint." JA000109. That conclusion follows solely from the reduced capacity of a ten-lane versus a twelve-lane crossing. At the same time, the FEIS notes that social, cultural and environmental impacts produced by a ten-lane alternative would be "essentially the same" as those produced by a twelve-lane alternative. JA000113. To support its conclusion, the FEIS includes a one page "Environmental Impact Matrix" purporting to break down the impacts of ten-and twelve-lane configurations with respect to fifteen environmental, social and cultural factors. JA000465. This table, in essence, purports to demonstrate that the cumulative negative effects on cultural, natural, and social resources of a twelve-lane alternative are not substantially different from those produced by a ten-lane alternative.
It is undisputed that alternatives with fewer than twelve lanes, without HOV lanes and physical separation of local and express traffic, were not subjected to detailed NEPA analysis. FHWA has maintained that such alternatives were properly excluded from NEPA analysis since they would not meet the purpose and need of the project.
3. NHPA and DOTA Compliance
Beginning in 1991 and pursuant to Section 106 of the National Historic Preservation Act and Section 4(f) of the Department of Transportation Act ("DOTA"), the FHWA began taking into account the potential effects of the project on sites eligible for listing on the National Register of Historic Places. The FHWA conducted investigations identifying cultural resources which might be adversely affected by the project, and solicited comments from interested parties. Between 1990 and 1995, the FHWA continued conducting cultural resource investigations which included, inter alia, research at the relevant State Historic Preservation Offices, the Library of Congress, and the National Archives. In addition, the FHWA coordinated archaeological excavations, aerial photographic surveys, and other field work aimed at identifying cultural and historic resources. JA000230.
In 1995, the FHWA defined the area of potential effects ("APE") of the project, demarcating the area which might be negatively impacted by the project. In January 1996, the FHWA issued a Cultural Resources Technical Report ("CRTR"). The CRTR purported to serve as an "integrated compilation of all previous terrestrial and underwater archaeological/historic resource surveys, investigations, and determinations of effect," according to the FHWA. JA005629. Also in 1996, the FHWA circulated two proposed Memoranda of Agreement ("MOA"). Under Section 106 implementing regulations, the MOA represents formal agreement among the consulting parties as to how adverse effects of the project will be taken into account. 36 C.F.R. § 800.5. The two proposed 1996 MOAs were not signed by the consulting parties. Subsequent to the 1996 CRTR, the FHWA performed additional cultural and technical studies. In 1997, the FHWA substantially reduced the size of the project's APE, and circulated three more proposed MOAs. See JA006313. Signature to the final, October 1997, MOA was made predicate to future participation in identification of protected properties and mitigation efforts. See JA002100, JA006839. The final, October 1997, MOA was signed by the City of Alexandria, the District of Columbia State Historic Preservation Officer, the Maryland State Historic Preservation Officer, the Virginia State Historic Preservation Officer, the National Park Service, and the FHWA. Several interested parties did not sign the final MOA, including the Alexandria Historical Restoration and Preservation Commission and Old Town Civic Association. The City of Alexandria, which signed the final MOA, noted in an addendum to its signature page "the City . . . continues to believe that the FHWA has not adequately taken into account the effect of the [approved project] on historic resources, as required by Section 106[of the National Historic Preservation Act]." JA006841.
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment the Court must assume the evidence of the non-movant, "and all justifiable inferences thereto", in the light most favorable to him." Anderson Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment is appropriate where, as here, review is on the ...