City Alexandria VA v. Slater, Rodney E. ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 26, 1999 Decided December 17, 1999
No. 99-5220
City of Alexandria, Virginia, et al.,
Appellees
v.
Rodney E. Slater, Secretary,
U.S. Department of Transportation, et al.,
Appellants
Appeal from the United States District Court
for the District of Columbia
(98cv00251)
Daria J. Zane, Assistant United States Attorney, argued
the cause for appellants. With her on the briefs were Wilma
A. Lewis, United States Attorney, R. Craig Lawrence, Assis-
tant United States Attorney, Nancy E. McFadden, General
Counsel, United States Department of Transportation, and
Paul M. Geier, Assistant General Counsel.
Barry M. Hartman and Lance W. High were on the brief
for amicus curiae Greater Washington Board of Trade.
Richard L. Walton, Jr., Senior Assistant Attorney General,
State of Virginia, was on the brief for amicus curiae the
Commonwealth of Virginia, Virginia Department of Transpor-
tation.
Kathleen A. Morse and Carolyn Moses Frank, Assistant
Attorneys General, State of Maryland, were on the brief for
amicus curiae Maryland State Highway Administration.
S. William Livingston, Jr., argued the cause for appellees.
With him on the brief were Mitchell F. Dolin and Thomas L.
Cubbage, III. John N. Hanson entered an appearance.
Hope M. Babcock, Thomas R. Lotterman, Paul W.
Edmondson, and Elizabeth S. Merritt were on the joint brief
for amicus curiae the National Trust for Historic Preserva-
tion in the United States, Preservation Alliance of Virginia,
and Sierra Club.
Before: Silberman, Williams, and Randolph, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge: Appellees challenged the Feder-
al Highway Administration's approval of plans to replace the
Woodrow Wilson Memorial Bridge. The district court held
that the Administration violated the National Environmental
Policy Act and the National Historic Preservation Act. We
reverse.
I.
The Woodrow Wilson Memorial Bridge is a microcosm of
the Washington, D.C. metropolitan area's traffic congestion
problems. Built in 1961, the six-lane structure carries the
Capital Beltway over the Potomac River, connecting the City
of Alexandria, Virginia, to Prince George's County, Maryland;
originally intended to serve as a Washington bypass for
interstate travelers, it became increasingly used by commut-
ers as the region's population grew. As a result, traffic
volume on the Bridge has increased to over 160,000 vehicles
per day, more than twice the capacity the structure was
designed to accommodate; congestion is particularly acute
during peak hours, where the configuration of an eight-lane
Beltway feeding into a six-lane bridge--in addition to steadily
increasing local traffic in the surrounding communities--has
produced one of the worst rush-hour "bottlenecks" in the
region. These congestion problems have created harmful
collateral consequences: the heavy volume on the Bridge has
contributed to an accident rate nearly double that of similar
facilities in the region, and has expedited the deterioration of
the Bridge's structure to the point where the Bridge is
projected to be structurally unsound by 2004.
Efforts to replace the Bridge began over ten years ago,
when the Federal Highway Administration, in cooperation
with its coordinate agencies in Maryland, Virginia, and the
District of Columbia, began examining alternative approaches
to solving the Bridge's capacity and structural problems.
The Administration began to study the potential effects of
rebuilding the Bridge on the surrounding communities early
in the project's development, commissioning surveys of histor-
ic and archaeological resources in areas likely to be affected
by the projects. The Commission also started the process,
mandated by the National Environmental Policy Act (NEPA),
42 U.S.C. s 4321 et seq. (1994), of considering the environ-
mental impacts of alternative project designs. In 1991 the
Administration issued a draft Environmental Impact State-
ment (EIS) for public comment; this statement suggested
and compared five proposals for replacing the Bridge. Each
of the alternatives in the draft proposed expanding the river
crossing from six to twelve lanes, and included a similar
expansion of the five-mile Beltway corridor approaching the
river crossing from the east and west.1
__________
1 More specifically, the project would widen the Beltway to twelve
lanes between Telegraph Road in Alexandria and Route 210 in
Prince George's County.
Reaction to the draft was less than enthusiastic; the Ad-
ministration was criticized for assessing inadequately the
environmental and cultural impacts of its proposal, and for
failing to coordinate its work with that of interested govern-
mental agencies and community groups. By its own admis-
sion concerned that "a region-wide consensus about the new
bridge had not been reached," the Administration went back
to the drawing board. In response the Administration orga-
nized a "Coordination Committee" composed of elected and
administrative officials from the region to enhance community
and intergovernmental cooperation. The Committee revisited
the entire process of developing alternative Bridge designs,
ultimately soliciting and considering over 350 proposals from
interested individuals and organizations, and increased the
Administration's public outreach efforts in affected communi-
ties. In the meantime, pursuant to its obligations under
section 106 of the National Historic Preservation Act, 16
U.S.C. s 470f (1985 & Supp.), and section 4(f) of the Depart-
ment of Transportation Act, 49 U.S.C. s 303 (1997), the
Administration continued to assess the project's potential
impacts on historic, archaeological, and cultural resources in
the area.
In 1997, the Administration issued its Final Environmental
Impact Statement (the "Final EIS"). The Final EIS gave
detailed consideration to eight alternative proposals (seven
"build" alternatives and a baseline "no build" alternative),
comparing them on a range of criteria including vehicle
capacity, cost, and extent of environmental impacts. As was
the case with the draft each of the "build" alternatives
scrutinized in the Final EIS had twelve lanes; each alterna-
tive also had a lane configuration that separated local and
express traffic, and contained a lane dedicated for High
Occupancy Vehicle usage. The critical difference among the
proposed alternatives was the type of river crossing; the
seven "build" alternatives included a range of tunnel and
bridge designs. Although the Final EIS discussed narrower
eight- and ten-lane options, it did not afford them full treat-
ment as formal "alternatives" because the Administration
concluded, on the basis of traffic projections, that narrower
river crossings would fall short of meeting the Bridge's long-
term traffic needs. Among the eight options the Administra-
tion designated a "Preferred Alternative" that would replace
the Bridge with two parallel six-lane drawbridges (one draw-
bridge for eastbound and one for westbound traffic) clearing
the Potomac's navigational channel by seventy feet at their
highest points. The Administration also included in the Final
EIS a sixty-page "Section 4(f) Evaluation" identifying and
offering plans to mitigate the effects of the Preferred Alter-
native and all other build alternatives on public parks, wildlife
refuges, and historic sites.
After a brief comment period the Administration approved
the Preferred Alternative in a Record of Decision and submit-
ted, as is required by section 106 of the National Historic
Preservation Act, a Memorandum of Agreement evidencing
the Administration's cooperation with state historic preserva-
tion officers in identifying historic sites that might be impact-
ed. The Memorandum identified and offered mitigation plans
for several historic sites, but it also noted that the Adminis-
tration had not yet identified properties to be used for
"construction staging, dredge disposal, wetland mitigation, or
other ancillary activities" during the period of the Bridge's
construction.
The City of Alexandria filed an action in the district court
challenging the Administration's approval of the project, and
the district court permitted three Alexandria-based organiza-
tions that opposed the Administration's proposed alternative
(collectively the "Alexandria Coalition" or "appellees") to
intervene as plaintiffs. The City alleged that the Administra-
tion had violated a host of regulatory provisions, including the
National Environmental Policy Act, section 106 of the Nation-
al Historic Preservation Act, and section 4(f) of the Depart-
ment of Transportation Act.2 After both sides had filed for
summary judgment the City of Alexandria settled its claim
__________
2 The City also alleged that the Administration violated the Clean
Air Act by failing to conduct a conformity analysis for the twelve-
lane preferred alternative. The district court agreed, but the
Administration does not appeal this finding.
with the Administration, leaving the Alexandria Coalition as
the only remaining plaintiffs.
The district court ruled in favor of the Alexandria Coalition.
See City of Alexandria v. Slater, 46 F. Supp. 2d 35 (D.D.C.
1999). The court concluded that the Administration had
violated NEPA by not affording detailed consideration to a
ten-lane river crossing as a "reasonable alternative" in the
Final EIS, and that the Final EIS' treatment of the tempo-
rary environmental impact of the construction phase of the
project was too cursory to satisfy NEPA. Relying upon our
recent decision in Corridor H Alternatives, Inc. v. Slater, 166
F.3d 368 (D.C. Cir. 1999), the district court also determined
that the Administration had violated section 106's require-
ment that an agency "take into account" the effects of a
proposed project on protected historic properties by postpon-
ing the identification of the sites that were to be used for
construction-related "ancillary activities." Because an agency
must complete the section 106 identification process before it
can satisfy section 4(f)'s requirement that an agency use "all
possible planning to minimize harm" to historic sites, the
court concluded that the Administration had necessarily failed
to comply with section 4(f) as well. The district court re-
manded the project to the Administration; the Administra-
tion appealed, as it is entitled to do. See Occidental Petrole-
um Corp. v. SEC, 873 F.2d 325, 330 (1989) (when district
court remand obliges agency to take further actions under an
arguably incorrect legal standard an immediate appeal is
appropriate).
II.
A.
The National Environmental Policy Act's mandate "is es-
sentially procedural," Vermont Yankee Nuclear Power Corp.
v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558
(U.S. 1978); the statute requires that agencies assess the
environmental consequences of federal projects by following
certain procedures during the decision-making process. See
Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190,
193-94 (D.C. Cir. 1991). Before approving a project, an
agency must prepare a "detailed statement ... [on] the
environmental impact of the proposed action, any adverse
environmental effects which cannot be avoided should the
proposal be implemented, [and] alternatives to the proposed
action." 42 U.S.C. s 4332(2)(C)(i)-(iii). These general pre-
scriptions are given sharper focus in the Council on Environ-
mental Quality's regulations,3 which require agencies to pre-
pare environmental impact statements; at the "heart of the
environmental impact statement" is the requirement that an
agency "rigorously explore and objectively evaluate" the pro-
jected environmental impacts of all "reasonable alternatives"
for completing the proposed action. 40 C.F.R. s 1502.14.
Appellees argue, and the district court agreed, that the
Administration violated NEPA by failing to deem a ten-lane
bridge a "reasonable alternative" in the Final EIS. They
observe that a ten-lane bridge would constitute a significant
improvement over the existing six-lane structure, and would
reduce congestion with considerably less impact on environ-
mental and cultural resources than each of the twelve-lane
alternatives compared by the Administration. In addition to
having a narrower river crossing, appellees point out that a
ten-lane alternative would have a smaller construction "foot-
print" along the entire five-mile stretch of the Beltway that
will be under construction, and would require smaller inter-
changes at each of the four points of access to the Beltway in
the project corridor. The Administration responds that the
ten-lane alternative favored by appellees was excluded after
studies determined that it did not meet the traffic capacity
needs of the project. The Administration also argues that
__________
3 The Council on Environmental Quality has no express regulato-
ry authority under the National Environmental Policy Act; instead,
the Council was empowered to promulgate binding regulations by
President Carter's Executive Order No. 11991, 42 Fed. Reg. 26,967(1977). Because the Administration does not challenge the Coun-
cil's regulatory authority, we treat the Council's regulations as
binding on the agency. But see Scott C. Whitney, The Role of the
President's Council on Environmental Quality in the 1990s and
Beyond, 6 J. Envtl. L. & Lit. 81 (1991).
the difference between the environmental impacts of the two
projects is less than appellees suggest; a ten-lane bridge
would impact only 1.6 fewer acres of parkland and 12.9 fewer
acres of natural resources over the entire length of the
project corridor, and would have an identical impact on
cultural resources.
How are the merits of appellees' argument to be assessed?
After all, the phrase "reasonable alternative," standing alone,
offers no guidance to a reviewing court. Something can only
be an "alternative" by reference to something else; "the term
'alternatives' is not self-defining." Vermont Yankee, 435 U.S.
at 551. The Council on Environmental Quality, for its part,
does little to clarify the baseline against which a "reasonable
alternative" is to be measured; its regulations at times ap-
pear to contrast the "alternatives" to the "proposal," suggest-
ing that the range of reasonable alternatives are to be
selected by reference to the project implemented. See 40
C.F.R. s 1502.14. But that approach would seem to bias the
process. See, e.g., Calvert Cliffs' Coordinating Comm., Inc. v.
U.S. Atomic Energy Comm'n, 449 F.2d 1109, 1114 (D.C. Cir.
1971). And even if we were to understand an "alternative" to
be defined by reference to the proposal actually selected, our
interpretive task would hardly be easier, as "the adjective
'reasonable' is no more self-defining than the noun that it
modifies." Citizens Against Burlington, 938 F.2d at 195.
We have resolved this difficulty by evaluating an agency's
choice of "reasonable alternatives" in light of the objectives of
the federal action; as then-Judge Thomas put it in Citizens
Against Burlington, "[t]he goals of an action delimit the
universe of the action's reasonable alternatives." Id. But
that approach of course requires that we first consider wheth-
er the agency has reasonably identified and defined its objec-
tives. The agency's choice of alternatives are, then, evaluated
in light of these stated objectives; an alternative is properly
excluded from consideration in an environmental impact
statement only if it would be reasonable for the agency to
conclude that the alternative does not "bring about the ends
of the federal action." Id. We engage in both of these
inquiries--whether an agency's objectives are reasonable, and
whether a particular alternative is reasonable in light of these
objectives--with considerable deference to the agency's ex-
pertise and policy-making role. Id. at 196.
The district court's opinion suggests that the Administra-
tion improperly defined its objectives, criticizing the Adminis-
tration for narrowing its choice of alternatives "based on a set
of criteria that focused primarily on transportation and safety
issues." City of Alexandria, 46 F. Supp. 2d at 44. This
description of the Administration's objectives is an accurate
one; while the "Statement of Purpose and Need" in the Final
EIS references several objectives (including protecting the
environment), it focuses on the region's traffic needs. But it
hardly follows that the Administration violated NEPA. As
mentioned above, NEPA's injunction that agencies consider
the environmental impacts of "all reasonable alternatives"
does not substantively constrain an agency's choice of objec-
tives; to the contrary, it is those very objectives that provide
the point of reference for a determination whether an alterna-
tive is "reasonable" in the first place. By suggesting that the
Administration violated NEPA because it did not sufficiently
prioritize environmental goals, the district court subtly--and
impermissibly--transformed a procedural statute into a sub-
stantive one. See Baltimore Gas & Elec. Co. v. Natural
Resources Defense Council, Inc., 462 U.S. 87, 97 (1983)
("Congress in enacting NEPA ... did not require agencies to
elevate environmental concerns over other appropriate con-
siderations.") The proper question to ask at the outset of a
NEPA inquiry is not whether the Administration focused on
environmental goals but rather--as we noted--whether its
stated objectives were reasonable. It seems rather obvious
to us that it is not unreasonable in articulating its objectives
for an agency to "focus primarily on transportation and safety
issues" when replacing a massively congested and structurally
unsound bridge. Cf. Corridor H, 166 F.3d at 374 (affirming
the Administration's rejection of highway alternatives that
did not meet the transportation and safety needs of the
region).
More in keeping with our precedent, the district court also
determined that a ten-lane alternative was reasonable--and
therefore should have been given greater attention--in light
of these objectives. The district court arrived at this conclu-
sion by characterizing the Administration as "articulat[ing]
the problem as one of addressing the future transportation
needs of the region." "Such a broad statement of purpose
and need," the district court explained, "hardly provides an
unequivocal basis for eliminating ten-lane alternatives from
consideration." City of Alexandria, 46 F. Supp. 2d at 44.
This might be so, had the Administration truly characterized
its objectives in such general terms. But it did not. As is
required by statute, see 23 U.S.C. s 109(b), the Administra-
tion instead focused specifically--in its Statement of Purpose
and Need and elsewhere--on the traffic needs that will exist
twenty years after the project's approval, and its analyses
based on 2020 traffic projections demonstrate that a ten-lane
bridge would be insufficient. The Administration's studies
show that appellees' preferred design (a ten-lane configura-
tion without an HOV lane) would be able to accommodate less
than half of the per-hour capacity of the Administration's
preferred alternative, causing peak-hour traffic queues of
significantly greater length and extended duration; accident
rates would also be markedly higher on a ten-lane structure.
The district court ignored this data, instead focusing exclu-
sively on an Administration study showing that a ten-lane
bridge would be able to accommodate up to 295,000 vehicles
per day, a number only slightly smaller than the projected
daily traffic flow on the Bridge in 2020. City of Alexandria,
46 F. Supp. 2d at 44. But that study apparently assumed an
even flow of traffic throughout the day (which, of course, is
unrealistic). Whatever the total number of vehicles that will
cross in a 24-hour period, the relevant question is how long
during peak commuting hours it will take to cross the bridge.
Appellees also do not seriously challenge the Administration's
findings, instead protesting that these studies establish little
more than the "truism ... that a ten-lane bridge would carry
somewhat less traffic than a twelve-lane bridge." It is not
apparent to us why this proposition has less force in the case
because it is a "truism."
Appellees' more fundamental argument is that, regardless
of its shortcomings in satisfying future traffic needs, we must
hold a ten-lane bridge to be a reasonable alternative in light
of our statement in Natural Resources Defense Council, Inc.
v. Morton that an agency should not "disregard alternatives
merely because they do not offer a complete solution to the
problem." 458 F.2d 827, 836 (D.C. Cir. 1972). Appellees
overread Morton. In that case an environmental group
challenged the Secretary of the Interior's proposed sale of oil
and gas leases to submerged lands in the Gulf of Mexico; the
Secretary sought to sell these properties as part of a cross-
agency effort, initiated by the President, to increase Ameri-
can energy supplies. We held that the Secretary's environ-
mental impact statement violated NEPA because it failed to
consider alternatives outside of the Department of the Interi-
or's jurisdiction; we also noted that the agency could not
exclude alternatives "supplying only part of the energy that
the lease sale would yield." Id. at 836. This broad articula-
tion of "reasonable alternatives" was compelled by the nation-
al scope of the problem being addressed: "When the pro-
posed action is an integral part of a coordinated plan to deal
with a broad problem, the range of alternatives that must be
evaluated is broadened." Id. at 835.
Morton thus stands for the same proposition as Citizens
Against Burlington: namely, that a "reasonable alternative"
is defined by reference to a project's objectives. Morton
explained that, within the context of a coordinated effort to
solve a problem of national scope, a solution that lies outside
of an agency's jurisdiction might be a "reasonable alterna-
tive"; so might an alternative within that agency's jurisdiction
that solves only a portion of the problem, given that other
agencies might be able to provide the remainder of the
solution. Such a holistic definition of "reasonable alterna-
tives" would, however, make little sense for a discrete project
within the jurisdiction of one federal agency, as we recognized
in Morton when we contrasted the Secretary's action with
that of building "a single canal or dam."4 Id. Concerned
__________
4 We doubt the continuing vitality of the rather expansive view of
NEPA we expressed in Morton, since subsequent Supreme Court
with severe traffic conditions in the Capital Region, Congress
has authorized the Administration to replace the Woodrow
Wilson Memorial Bridge. The Administration has sole re-
sponsibility for solving this problem; were it to build a ten-
lane bridge, no one else would step in and alleviate the
congestion that would result.5 In this context, it is simply a
non sequitur to call a proposal that does not "offer a complete
solution to the problem" a "reasonable alternative."
One other point merits brief discussion. In finding a ten-
lane alternative reasonable, the district court noted that the
Administration only conducted a Clean Air Act conformity
analysis for the use of ten lanes on the Bridge. See City of
Alexandria, 46 F. Supp. 2d at 45. If the Administration only
expects ten lanes to be open, the district court reasoned, how
can it fail to consider a ten-lane bridge as a reasonable
alternative under NEPA? The answer is that the Clean Air
Act and NEPA inquiries have different time horizons; while a
project must show conformity with the Clean Air Act at the
time it is approved, see 42 U.S.C. s 7506(c)(1) (1995), the
consideration of reasonable alternatives under NEPA re-
quires, as mentioned above, an assessment of traffic needs in
2020. Accordingly the Administration did not violate the
__________
cases have directly criticized us for overreading that statute's
mandate. See Baltimore Gas & Elec. Co., 462 U.S. at 97; Vermont
Yankee, 435 U.S. at 554; Kleppe v. Sierra Club, 427 U.S. 390 (1976).
Morton, after all, suggested that the Secretary should have deemed
as "reasonable alternatives" Congress' ability to reduce oil import
quotas and the Federal Power Commission's authority to change its
natural gas pricing policies. 458 F.2d at 835, 837. To be sure,
Vermont Yankee cited with approval our statement in Morton
stressing the limits of an agency's obligations under NEPA, 435
U.S. at 551, but we wonder whether Morton's holding can be
squared with Vermont Yankee's injunction that "the 'detailed state-
ment of alternatives' cannot be found wanting simply because the
agency failed to include every alternative device and thought con-
ceivable by the mind of man." Id.
5 As the Administration determined, there are no apparent and
feasible independent rail transit options that could be combined to a
ten-lane bridge to satisfy transportation needs.
National Environmental Policy Act by failing to include a ten-
lane bridge proposal as a "reasonable alternative" in its Final
Environmental Impact Statement.
B.
Once an agency identifies the "reasonable alternatives" to a
proposed action, NEPA and Council on Environmental Quali-
ty regulations also require an agency to identify the "adverse
environmental effects" of each alternative. See 42 U.S.C.
s 4332(2)(C)(ii); 40 C.F.R. s 1502.16. The district court
found fault with the Administration's treatment of the tempo-
rary "construction impacts" that would arise during the peri-
od that the Bridge was being built. Again, we disagree.
The district court focused on the brevity of the "Construc-
tion Impacts" section of the Final EIS, which covers only four
pages and, according to the district court, "is of such a broad
and generic nature that it could apply to practically any
construction project undertaken by the [Administration]."
City of Alexandria, 46 F. Supp. 2d at 45. While the Adminis-
tration's discussion might have been more thorough, we think
the district court's assessment of the Administration's treat-
ment of these issues too harsh. The Administration address-
es a range of expected construction impacts, including the
construction's likely effect on local traffic, air quality, area
noise levels, water quality and wetlands, cultural resources,
and visual effects. The level of detail of these assessments
varies; it is worth noting, in light of the district court's focus
on the terseness of the Administration's analysis, that some of
the shorter analyses are the most eminently reasonable.
Take, for instance, the Administration's discussion of traffic
impacts. The Administration acknowledges that the con-
struction project will affect traffic flow on several Alexandria
roadways, and may also cause potential delays in the delivery
of emergency services. It also offers a range of mitigation
strategies: six lanes of the Bridge will be kept open at all
times to minimize rush-hour congestion; some access (even if
circuitously routed) will be maintained to all roads and areas;
there will be no disruption of marine traffic on the Potomac;
the public will be notified of temporary road closings through
the news media, the posting of signs, and the creation of a
"project activities" hotline. Perhaps appellees would prefer
the Administration to set forth in the Final EIS a comprehen-
sive plan detailing precisely which streets will be closed, and
which alternative routes will be established, but that is not
mandated by NEPA. See, e.g., Robertson v. Methow Valley
Citizens Council, 490 U.S. 332, 353 (1989) ("[I]t would be
inconsistent with NEPA[ ] ... to demand the presence of a
fully developed plan that will mitigate environmental harm
before an agency can act.").
We think the terseness of the Administration's discussion
of construction impacts is justified for other reasons as well.
The Administration typically delays the identification of "con-
struction staging" sites--locations used to store materials and
equipment during project construction--until the design
stage of the project. As will be discussed infra, this practice
is permissible under the statute and is arguably required by
the Administration's governing regulations. Since the Ad-
ministration did not identify the location of these areas, it of
course could not identify the accompanying environmental
impacts with precision. But this does not mean that the
Administration did not consider, on a more general level,
what those impacts would be; the Final EIS identifies several
potential staging areas, and notes that each of these sites are
in "previously disturbed" areas with "minimal natural re-
sources." The Administration's brevity is particularly under-
standable given the numerous regulatory constraints that will
limit the extent of construction activities. As the Administra-
tion notes, Maryland and Virginia require construction con-
tractors to limit noise levels in "noise sensitive areas adjacent
to the project area" to eighty decibels--a noise level compara-
ble to that currently produced by traffic on some stretches of
the highway. Similar federal and state regulatory provisions
require the mitigation of any short-term construction impacts
on wetland and aquatic resources, constrain the emissions of
dust from construction-related activities and equipment, and
limit the Administration's selection of construction staging
areas. The Final EIS' reference of these provisions is impor-
tant, as it indicates the Administration's awareness of the
maximum impact that the construction may cause.
We also note that agencies are enjoined by the Council on
Economic Quality to develop environmental impact state-
ments that are "no longer than absolutely necessary" and that
discuss impacts "in proportion to their significance." 40
C.F.R. s 1502.2(b)-(c). The Administration points out that
each of the seven "build" alternatives would have similar
construction impacts, thus making a detailed discussion of
each of their effects redundant. More fundamentally, while
the disruption caused by the construction of a project as
significant as this one is by no means trivial, it is relatively
modest in both scope and duration when compared to the
environmental impact of the project as a whole. To be sure,
there is a point at which an agency's analysis ventures from
the "tolerably terse to the intolerably mute," Greater Boston
Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970),
but we simply do not think that the Administration's analysis
of construction impacts reaches that point.
III.
A.
The district court concluded that the Administration also
failed to identify adequately the effect that its preferred
alternative will have on historic resources in the project area,
as is required under two distinct but overlapping statutes:
section 106 of the National Historic Preservation Act and
section 4(f) of the Department of Transportation Act. Sec-
tion 106, like NEPA, is essentially a procedural statute; it
requires that agencies "take into account the effect of [an]
undertaking on any district, site, building, structure, or object
that is included in or eligible for inclusion in the National
Register [of Historic Places]." 16 U.S.C. s 470f. To comply
with section 106, an agency must consult with state historic
preservation officers to ensure that historic properties in the
project area are thoroughly identified and the effects that the
project will have on them fully assessed. See 36 C.F.R.
s 800.4-.5.6 The usual product of this consultation process is
a Memorandum of Agreement among the consulting parties
signifying agreement upon how the detrimental effects will be
"taken into account." Even where disagreement precludes
the completion of a Memorandum of Agreement an agency
may implement a project after receiving and considering
comments from the Advisory Council on Historic Preserva-
tion. See id. at 800.6(c).
On the other hand, section 4(f), unlike the other statutes at
issue in this case, imposes a substantive mandate on the
Administration: It prohibits the agency from taking an action
that "uses" a historic resource unless there is "no prudent
and feasible alternative to using that land" and the agency
engages in "all possible planning" to "minimize harm" to the
sites.7 49 U.S.C. s 303(c); see also Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402 (1971). Department of
Transportation regulations require the Administration to
"make the section 4(f) approval" at the same time that it
approves its final EIS or issues its Record of Decision, 23
C.F.R. s 771.135(l); the Administration ordinarily complies
with this requirement by publishing a separate "Section 4(f)
Evaluation" along with its final EIS, which identifies the
project's effects on historic properties in the project area and
the efforts the agency has taken to mitigate those effects. In
order to comply with 4(f)'s substantive requirements, it is of
course necessary first to identify historic sites in the project
area; accordingly, we have observed that compliance with
section 4(f) is predicated upon completion of the section 106
process. See Corridor H Alternatives, Inc. v. Slater, 166
F.3d 368, 371 (1999).
__________
6 The Council has recently promulgated regulations revising the
section 106 process. 64 Fed. Reg. 27,044 (1999). Our citations are
to the regulations as they existed at the time the Administration
approved the project.
7 In addition to historical sites, other properties--including parks,
recreational areas, and wildlife preserves--are protected by section
4(f).
The central dispute between the parties is not about wheth-
er, but about when, the Administration must complete its
identification of historic properties. The Administration has
been "taking into account" the effect of the proposed project
on historic sites since the project's inception, conducting
several surveys which led to the identification of 23 National
Register-listed or National Register-eligible properties, and
36 underwater or terrestrial archaeological sites in the pro-
ject area. The Administration also identified and visited each
National Register-listed property in Alexandria for the pur-
pose of determining, among other things, the "visual impacts"
that various alternative bridge proposals would have on each
site. The result was publication of a Memorandum of Agree-
ment and a Section 4(f) Evaluation with or prior to the
Administration's approval of the project; these documents
identify seven historic sites that will be affected by the
project and another six that may be, and offers plans to
minimize and mitigate the project's impact on these proper-
ties.
The district court did not question the overall legitimacy or
thoroughness of these studies.8 (Indeed, appellees cannot
identify a single historic resource in the project area that the
Administration failed to "take into account."9) Instead, the
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8 Appellees point to the Administration's decision to reduce the
size of the "Area of Potential Effects" in 1997, and suggest that the
Administration reduced this Area in an attempt to evade section
106's obligations. The Administration offers a perfectly innocent
explanation, which we have no reason to question: The Area of
Potential Effects was originally drawn with a range of alternatives
in mind, including taller bridge designs with far more extensive
"visual effects" in Alexandria. It was then reduced to encompass
only those areas affected by the preferred alternative. Notably,
appellees do not point to any properties outside of the new "re-
duced" Area of Potential Effects that will actually be affected by
the project.
9 Amicus Sierra Club rather inventively argues that the Adminis-
tration failed to treat as a section 106/4(f) property the Hunting
Terrace apartment complex in Alexandria, but it is not eligible for
inclusion in the National Register of Historic Places, and therefore
district court concluded that the Administration violated sec-
tion 106 by deciding to postpone the identification of sites
where it would conduct certain construction-related activities,
including construction staging areas (the locations where
contractors will store materials and mobilize construction
activities), wetland mitigation areas, and dredge disposal
sites. While the likely impact of these activities, which the
Administration describes as "ancillary," are minimal when
compared to those of the project as a whole, it is at least
conceivable that they could ultimately affect section 106 prop-
erties. Acknowledging this possibility, but noting that it
usually defers the identification of such properties until the
"design stage" of a large highway project, the Administration
included promissory language in its Memorandum of Agree-
ment binding it to fulfill its section 106 responsibilities when
selecting these sites. The district court thought that these
prospective terms ran afoul of our recent decision in Corridor
H Alternatives, Inc. v. Slater, 166 F.3d 368 (D.C. Cir. 1999),
in which we held that the Administration could not postpone
the entire section 106 process until after it issued its Record
of Decision.
We think that district court misconstrued our holding in
Corridor H. In that case, the Administration postponed the
entire section 106 process for a major highway corridor; its
Record of Decision instead adopted a "Programmatic Agree-
ment" dividing the highway into fourteen segments, and
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is not a protected property under either section 106 or section 4(f).
See 23 C.F.R. s 771.135(e); 36 C.F.R. s 800.2(e). Showing similar
ingenuity, appellees argue that the Administration violated sections
106 and 4(f) because "the boundaries of Freedman's Cemetery ...
have still not yet been determined." They apparently believe that
since the site's precise location is unknown (and, it seems, unknow-
able), it is by definition impossible to know for certain the "effect"
that the construction will have on the site, thus placing the Adminis-
tration in violation of sections 106 and 4(f). To set forth the logic of
this argument is to refute it. Cf. Hoonah Indian Ass'n v. Morri-
son, 170 F.3d 1223, 1231-32 (9th Cir.1999) (inability of Forest
Service to identify location of Indian march justified decision not to
designate it a section 106 property).
promised that it would not begin construction of a particular
segment before completing the section 106 process for that
segment. We held that this Agreement impermissibly abro-
gated the Administration's responsibility to assess the pro-
ject's impact on historic properties during the planning stages
of the project. See 166 F.3d at 373. But that is not the case
here, since the Administration has identified historic proper-
ties along the entire project corridor and documented its
findings prior to approval in both a Memorandum of Agree-
ment and a Section 4(f) Evaluation. All that has been
deferred is the identification of sites that might be impacted
by a small number of "ancillary activities." This is quite
distinguishable from the "Programmatic Agreement" we pro-
scribed in Corridor H.
The Administration did not postpone the identification of
these properties "merely to avoid having to complete its 4(f)
and 106 analyses," as the district court said. 46 F. Supp. 2d
at 47. As the Administration points out, the precise identifi-
cation of these sites requires "substantial engineering work"
that is not conducted until the design stage of the project;
indeed the Administration is required to conduct such "final
design activities" after it completes its Final EIS. 23 C.F.R.
s 771.113(a)(iii). Furthermore, then-existing Council regula-
tions explicitly encouraged flexible, staged planning in the
section 106 process. See 36 C.F.R. s 800.3(b) (section 106
procedures "may be implemented ... in a flexible manner");
36 C.F.R. s 800.3(c) (section 106 regulations should not be
interpreted to "prohibit phased compliance at different stages
in planning."). Appellees respond that the Administration
could nonetheless "feasibly" identify these sites without doing
"final design" plans for the project. But the standard of
"feasibility," while relevant to whether an agency may use 4(f)
properties, has no application in determining when the agency
must identify them. We think that, particularly where the
sites postponed are merely ancillary to the project, section
106 and the identification prerequisites of section 4(f) do not
forbid the rational planning process adhered to by the Admin-
istration.
B.
We also think that the Administration satisfied section
4(f)'s substantive provisions. Appellees barely bother to ar-
gue that the Administration did not comply with section
4(f)(1)'s requirement that it consider all "prudent and feasible
alternative[s]" to using protected properties. The reason for
this gap in appellees' otherwise vigorous presentation is obvi-
ous enough. For while the Administration is required to give
the protection of 4(f) property "paramount importance" in
determining whether an alternative is "prudent," Overton
Park, 401 U.S. at 412-13, we have squarely held that an
alternative cannot be a prudent one if it does not satisfy the
transportation needs of the project. See Citizens Against
Burlington, 938 F.2d at 204. In light of this limitation,
appellees can only win under section 4(f)(1) if they establish
one of two propositions: They must show that a narrower
Bridge satisfies the transportation needs of the project, or
they must offer a "prudent" project alternative that does not
impact the 4(f) properties used by the Administration's pre-
ferred design. The former question we have already resolved
in the Administration's favor, and appellees do not advance an
alternative highway route that has a less significant impact on
4(f) properties.
Appellees do argue with greater enthusiasm that the Ad-
ministration violated section 4(f)(2)'s requirement that the
agency engage in "all possible planning" to minimize harm to
4(f) properties, but this argument is equally unpersuasive.
To begin at the broadest level of generality, appellees do not
question the Administration's express findings that, among
the seven "prudent and feasible" alternatives compared in the
Final EIS, the preferred alternative "results in the least
overall impact to section 4(f) resources." Cf. Druid Hills
Civic Ass'n, Inc. v. FHWA, 772 F.2d. 700, 716 (11th Cir.
1985) (noting that "section 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"). At the site-specific level, the Administration
made several significant project modifications to avoid or
minimize impacts to section 4(f) properties, including altering
an interchange design to avoid impacting a schoolground and
eliminating the construction of a temporary Beltway overpass
to minimize the risk of harm to Freedman's Cemetery.
Where the Administration could identify no feasible and
prudent plan for avoiding impact to a 4(f) site, it offered plans
to mitigate that impact; for instance, it proposed substantial
improvements to Jones Point Park, arguably the most signifi-
cant 4(f) property impacted by the project. Further recita-
tion of the Administration's mitigation efforts is possible, but
unnecessary; suffice it to say that, after a thorough review of
the record, we have little difficulty concluding that the Ad-
ministration complied with its responsibilities under section
4(f) of the Department of Transportation Act.10
* * * *
During the course of our consideration of this case, appel-
lees have attempted to bolster their position by pointing to
the opposition of prominent legislators to the project, and by
noting the hurdles to ultimate congressional approval that
still lie in the Administration's path. These political impedi-
ments are irrelevant to us but they indicate where appellees
should concentrate their efforts. We have been admonished
by the Supreme Court with respect to the very statute that is
at the heart of this case to avoid using its requirements as a
vehicle to impose our own judgment. Vermont Yankee, 435
U.S. at 554. Our obligation is not to further our beau ideal of
a bridge design, but merely to ensure that the procedures
mandated by these statutes have been complied with. We
hold that the Administration has satisfied the requirements of
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10 Appellees correctly note that section 4(f)'s substantive require-
ments can only be complied with after section 4(f) properties have
been identified. We remind the Administration that our holding
that it could defer the identification of section 4(f) properties that
might be impacted by construction staging and dredge disposal
activities in no way absolves it of its responsibility to conduct a 4(f)
analysis when selecting these sites during the design stage of the
project.
NEPA, the National Historic Preservation Act, and the De-
partment of Transportation Act, and reverse.
So ordered.