Concerned Citizens Alliance, Inc. v. Slater

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
5-14-1999
Concerned Citizens v. Slater
Precedential or Non-Precedential:
Docket 98-7462
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"Concerned Citizens v. Slater" (1999). 1999 Decisions. Paper 129.
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Filed May 14, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 98-7462
CONCERNED CITIZENS ALLIANCE, INC.;
JOSEPH KREMPASKY,
Appellants
v.
RODNEY SLATER, Secretary, U.S. Department of
Transportation; KENNETH R. WYKLE, Administrator,
Federal Highway Administration; BRADLEY L. MALLORY,
Secretary, Pennsylvania Department of Transportation
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 98-cv-00107)
District Judge: Honorable Malcolm Muir
Argued: February 9, 1999
Before: BECKER, Chief Judge, McKEE, Circuit Judges
LEE, District Judge.*
(Filed May 14, 1999)
ANDREA C. FERSTER, ESQUIRE
(ARGUED)
1100 Seventeenth Street, N.W.
10th Floor
Washington, DC 20036
Counsel for Appellants
_________________________________________________________________
*Honorable Donald J. Lee, United States District Judge for the Western
District of Pennsylvania, sitting by designation.
PAUL W. EDMONDSON, ESQUIRE
General Counsel
ELIZABETH S. MERRITT, ESQUIRE
(ARGUED)
Associate General Counsel
LAURA S. NELSON, ESQUIRE
Assistant General Counsel
National Trust for Historic
Preservation
1785 Massachusetts Avenue, NW
Washington, DC 20036
Counsel for Amici Curiae
DAVID BARASCH, ESQUIRE
United States Attorney
DULCE DONOVAN, ESQUIRE
(ARGUED)
Assistant United States Attorney
Suite 217 Federal Building
228 Walnut Street
Harrisburg, PA 17108
PAUL A. TUFANO, ESQUIRE
General Counsel
JOHN M. HRUBOVCAK, ESQUIRE
Assistant Counsel
ROBERT J. SHEA, ESQUIRE
Assistant Chief Counsel
ANDREW S. GORDON, ESQUIRE
Chief Counsel
Commonwealth of Pennsylvania
Department of Transportation
Office of Chief Counsel
555 Walnut Street, 9th Floor
Harrisburg, PA 17101-1900
Counsel for Appellees
2
OPINION OF THE COURT
BECKER, Chief Judge.
Highways and historic districts mix like oil and water,
and when a new highway must go through an historic area,
historic preservationists and federal and state highway
officials are likely to clash over the preferred route. Such
controversies take on a legal cast as the result of Section
4(f) of the Department of Transportation Act, 49 U.S.C.
S 303(c)(2) (amended by and codified at 23 U.S.C. S 138),
which provides:
[T]he Secretary [of Transportation] shall not approve
any program or project . . . which requires the use of
any . . . land from an historic site of national, State, or
local significance as so determined by such officials
unless (1) there is no feasible and prudent alternative
to the use of such land, and (2) such program includes
all possible planning to minimize harm to such . . .
historic site resulting from such use.
Id.
The situs of the present controversy is Danville,
Pennsylvania, a picturesque county seat overlooking the
Susquehanna River. Danville, which contains an historic
district that was nominated to the National Register of
Historic Places in 1994, is joined with Riverside, the town
across the river, by a deteriorating bridge. In the early
1980s, federal and state agencies decided that the bridge
had to be replaced. The plaintiffs, Danville area residents
who formed the Concerned Citizens Alliance, sued the U.S.
Department of Transportation, the Federal Highway
Administration ("FHWA"), and the Pennsylvania Department
of Transportation ("PennDoT") in the District Court over the
defendants' selection of a bridge alignment that would send
traffic through Danville along Factory Street after it exited
the new bridge.
The plaintiffs contend that the defendants failed to
comply with the requirements of Section 4(f)(2) by
arbitrarily and capriciously selecting the Factory Street
3
Underpass alignment as the preferred alternative. The
plaintiffs also submit that the defendants ignored the
conclusion of the Advisory Council on Historic Preservation
("ACHP") that the Mill Street alternative would minimize
harm to the Danville Historic District. Although both
alternatives pass through the Historic District, plaintiffs
maintain that the defendants failed to adequately support
their conclusion that the Underpass alternative was
preferable. Additionally, the plaintiffs allege that the
defendants violated both Section 4(f) and the National
Environmental Policy Act ("NEPA"), 42 U.S.C.S 4321 et
seq., by failing to evaluate in detail an alternative that
would include, in addition to rebuilding the current bridge,
building a second bridge upstream to allow traffic to reach
the nearby connection to Interstate 80 without going
through the center of Danville. The District Court granted
summary judgment for the defendants on all grounds, and
this appeal followed.
We devote our attention to three critical issues. First, we
consider the level of deference the FHWA owes to the ACHP,
which is an expert agency created to comment on federally-
assisted projects involving historic properties, and whether
the appropriate deference was given. Second, we evaluate
whether the defendants acted arbitrarily in concluding that
the Factory Street Underpass alternative would inflict the
least amount of harm on the Historic District. Third, we
determine whether the defendants violated NEPA. We
conclude that, although the views of the ACHP are entitled
to deference, the ACHP cannot mandate a particular
outcome. Rather, we must carefully review the record to
assure that the views of the ACHP were in fact considered
and any concerns it raised were answered. We also
conclude, based on the entire administrative record, that
they were, and that the defendants did not act arbitrarily or
capriciously in selecting the Factory Street Underpass
alternative. Finally, we agree with the District Court that
the plaintiffs' NEPA claim is without merit. We therefore will
affirm the judgment of the District Court.
I. Facts and Procedural History
The Danville-Riverside Bridge carries Pennsylvania Route
54 across the Susquehanna and links Danville to Riverside.
4
Route 54 (in the form of Mill Street) passes through the
center of Danville and provides access to Interstate 80 a few
miles northwest of Danville. In 1983, defendants FHWA and
PennDoT decided to replace the old Danville-Riverside
Bridge, which was becoming unsafe.
Some twelve options were put on the table. The
alternatives relevant to this appeal included the"No-Build"
alternative, the Mill Street alternative ("MS alternative"), the
Factory Street At-Grade alternative ("FSAG alternative"), the
Factory Street Underpass alternative ("FSU alternative"),
and the Mill Street plus Bypass alternative ("MS&B
alternative"). Originally, the goal of the bridge replacement
project was just that: to replace the bridge. Therefore, the
FHWA initially refused to consider the MS&B alternative,
since it involved not only replacing the existing Danville-
Riverside Bridge but also building another bridge 1.2 miles
upstream to siphon off "through" traffic to reduce the
number of cars and trucks passing through Danville's
Historic District. However, Mill Street, on which many
shops and businesses are located, is the main commercial
street in the district, and in response to comments from the
Mill Street business community, the FHWA broadened the
stated purpose of the project to include reducing traffic
congestion to restore the economic health of Mill Street. The
MS&B alternative was therefore placed on the table,
although it never received detailed evaluation.
The Evaluation of Project Need listed twenty objectives
that the bridge replacement project was to fulfill. These
included replacing the deteriorating bridge; minimizing
vehicle delay and traffic congestion on Mill Street;
maintaining a link between Danville and Riverside through
the year 2013; managing traffic congestion on Factory
Street; restoring the Mill Street neighborhood, quality of
life, and business district; and minimizing pedestrians'
exposure to traffic.
Importantly, both Mill Street and Factory Street are in
the Historic District. The Final Environmental Impact
Statement ("FEIS") describes the collection of commercial,
civic, and residential structures along Mill Street as dating
"from the mid-nineteenth century to the early twentieth.
The two and three story buildings are predominantly
5
Italianate in style with features including blind arches,
corbelling, bracketed and highly decorative roof and
storefront cornices, columns and window hoods." The FEIS
also describes the buildings on West Market Street, a street
linking Mill and Factory Streets: "A range of architectural
styles are represented including Federal, Greek Revival,
Italianate, Second Empire, Victorian Eclectic, Queen Anne,
Shingle and Georgian Revival." Factory Street, which is a
smaller street one block west of Mill Street, contains mostly
residences--both historic and non-historic--and boasts
"large, stately buildings" that were "the homes of Danville's
wealthy industrialists who shaped the iron industry as well
as the architectural character of the present day West
Market Street neighborhood."
Currently, bridge traffic flows along Mill Street and
travels the length of the Historic District, although to avoid
the congestion, some traffic cuts west on West Market
Street to access Factory Street, which eventually connects
up with Route 54. The FSU alternative would realign traffic
coming off the bridge on the Danville side by routing traffic
down Factory Street and through a 345-foot "cut-and-
cover" underpass that would begin between Front and
Market Streets and end between Market and Mahoning
Streets. The MS alternative would replace the bridge but
maintain the current traffic flow along Mill Street. The
FSAG alternative would simply route traffic onto and along
Factory Street without directing traffic through an
underpass.
In considering the various alternatives, the FHWA
engaged in the requisite Section 4(f) and NEPA analyses. As
we detail below, Section 4(f) requires the FHWA to ensure
that there are "no prudent and feasible" alternatives that
would avoid using historic properties, and, in the absence
of a feasible alternative, to undertake "all possible planning
to minimize harm" to the Danville Historic District. In
performing its 4(f) analysis, the FHWA garnered input from
the ACHP and the Pennsylvania Historical and Museum
Commission ("PHMC"). Both historical groups notified the
FHWA that they preferred the MS alternative. In a letter
dated January 14, 1994, the ACHP complained that the
FSU alternative, which was favored by FHWA and which
6
included the underpass, would destroy vistas, landscaping,
and pedestrian and vehicle circulation patterns, and would
create an overwhelming visual intrusion in the form of large
retaining walls. The ACHP also feared that the increased
traffic on Factory Street would create noise and fumes that
would be out of character in that part of the district. Noting
that Mill Street was the traditional gateway into the town,
the ACHP felt that traffic was not out of character there,
and that the MS alternative was thus the "least harm"
alternative under 4(f)(2).
In response to the ACHP's concerns about the FSU
alternative, PennDoT retained Mary Means & Associates, a
private consulting firm with expertise in urban design and
economic analysis of historic areas, to evaluate the MS and
FSU alternatives. The Means firm wrote a report that
acknowledged that the FSU cut-and-cover alternative would
in fact do irreparable damage to the town, but concluded
that the FSU option would cause the least damage to the
long term viability of the Historic District. The Means
Report also stated that the MS alternative failed to relieve
the serious congestion and turning movements caused by
the constant truck traffic in an older downtown.
Pursuant to NEPA, and as part of the decisional process,
the FHWA prepared first a Draft and then a Final
Environmental Impact Statement ("EIS," "DEIS," or "FEIS"),
both of which contained the required Section 4(f)
evaluations. The EIS considered all of the alternatives listed
above (and more), but concluded that only four merited
detailed study as reasonable and prudent options: the FSU
alternative, the MS alternative, the FSAG alternative, and
the No-Build alternative. The FHWA did not perform a
detailed study of the MS&B alternative, since the Agency
deemed that alternative unreasonable.
The FHWA ultimately selected the FSU alternative. The
ACHP and the FHWA signed a Memorandum of Agreement
("MOA") which stated that the FSU alternative had been
chosen and prescribed several measures to mitigate its
impacts. The FHWA subsequently signed a Record of
Decision ("ROD"), memorializing the FSU alternative as the
selected alignment for the project. In its Section 4(f)
analysis, the ROD concluded that the FSU alternative
7
would best minimize harm to the Historic District by (i)
physically and visually separating traffic from the Historic
District; (ii) reducing traffic on Mill Street; and (iii) requiring
the demolition of a smaller contributing historic structure
than the MS alternative would. The ROD also deemed the
Mill Street alternative undesirable because the Mill Street
traffic would detract from the atmosphere in the historic
downtown area.
Since construction on the bridge was scheduled to begin
in July 1998, the plaintiffs, who continued to object to the
selection of the FSU alternative, moved for a temporary
restraining order and a preliminary injunction in late May
1998.1 The district court denied the motions.2 On the same
day, the parties also filed cross-motions for summary
judgment. In response to the defendants' motion, the
plaintiffs attached a letter from the ACHP dated June 29,
1998, explaining that its decision to sign the MOA did not
constitute a retraction of its earlier statement that it
preferred the MS alternative. The District Court granted the
defendants' motion to strike the ACHP letter from the record.3
It also denied plaintiffs' motion for a permanent injunction,
and then granted summary judgment for the defendants.
_________________________________________________________________
1. At oral argument in February 1999, the parties represented that
construction on the bridge had not yet begun.
2. Shortly thereafter, the plaintiffs simultaneously filed an
interlocutory
appeal from the denial of the TRO and a motion for an injunction
pending appeal. A panel of this court denied plaintiffs' motion for an
injunction pending appeal and dismissed the appeal from the denial of
the TRO.
3. The plaintiffs contend that the District Court abused its discretion in
striking the ACHP letter from the record, since that letter clarifies the
ACHP's current position on the FSU alternative. The ACHP points out
that its decision to sign the MOA did not indicate its concurrence in the
FSU alternative, but rather bound the defendants to the mitigation
measures contained therein. Indeed, the defendants concede that the
MOA "asks for concurrence on mitigation measures not concurrence on
the selected alternative." We need not decide whether the District Court
abused its discretion in striking the document because, even factoring in
the ACHP's continued opposition to the FSU alternative, we still conclude
that the FHWA did not act arbitrarily in selecting that alternative.
8
This appeal followed, over which we have jurisdiction
pursuant to 28 U.S.C. S 1291. The plaintiffs seek the
cessation of preparatory construction activities and a
remand to FHWA with instructions to comply with Section
4(f) and NEPA. When, as here, we are reviewing an
administrative agency's final decision under S 706 of the
Administrative Procedure Act, 5 U.S.C. S 701 et seq., we
review the district court's summary judgment decision de
novo, while "applying the appropriate standard of review to
the agency's decision." See Sierra Club v. Slater, 120 F.3d
623, 632 (6th Cir. 1997). The appropriate standards of
review of the agency's decisions are explained below.
II. Discussion
A. The Requirements of Section 4(f)
Because the Danville-Riverside Bridge replacement
project is a federal-aid project that will, under any proposed
alternative, "use" at least one historic structure in
Danville's Historic District,4 the project must satisfy the
requirements of Section 4(f) of the Department of
Transportation Act, 23 U.S.C. S 138 ("Section 4(f)"), as well
as the requirements of NEPA, 42 U.S.C. S 4332(2)(C)
(mandating an EIS and consultations with federal agencies
that have special expertise when an agency undertakes
major federal action affecting the quality of the human
environment). Section 4(f) mandates that the protection of
historic properties, parks, recreation areas, and wildlife
refuges be given paramount importance in transportation
planning. As discussed above, it does so by requiring the
Secretary of Transportation to use non-historic property
unless there is no other feasible alternative, see Section
_________________________________________________________________
4. Both courts and the Department of Transportation have explained
what "use" means in this context. "The term``use' is to be construed
broadly, not limited to the concept of a physical taking, but includes
areas that are significantly, adversely affected by the project." See
Morongo Band of Mission Indians v. Federal Aviation Admin., 161 F.3d
569, 583 (9th Cir. 1998) (quoting Adler v. Lewis, 675 F.2d 1085, 1092
(9th Cir. 1982)); Department of Transportation Order No. 5610.1A,
P 9(c)(1), 36 Fed. Reg. 23681 (1971).
9
4(f)(1), and to minimize harm to the historic property once
it is determined that such land must be used, see Section
4(f)(2). It is undisputed that only Section 4(f)(2) is at issue
in this case, since each alternative before the FHWA
involved a "use" of at least one historic structure in the
Historic District.5
Under Section 4(f)(2), the Secretary of Transportation
must perform a balancing test when weighing the
alternatives under consideration. We agree with the
Eleventh Circuit's explication that
[S]ection 4(f)(2) requires a simple balancing process
which totals the harm caused by each alternate route
to section 4(f) areas and selects the option which does
the least harm. The only relevant factor in making a
determination whether an alternative route minimizes
harm is the quantum of harm to the park or historic
site caused by the alternative. Considerations that
might make the route imprudent, e.g., failure to satisfy
the project's purpose, are simply not relevant to this
determination. If the route does not minimize harm, it
need not be selected.
Druid Hills Civic Ass'n v. Federal Highway Admin., 772 F.2d
700, 716 (11th Cir. 1985) (citations omitted); see also
Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79, 85-86
(5th Cir. 1976).
_________________________________________________________________
5. Although the No-Build alternative would not"use" any historic
property, the plaintiffs do not argue that the defendants violated 4(f)(1)
by failing to select the No-Build alternative. Section 4(f)(1)
specifically
requires that the Secretary must select an alternative that does not use
historic property unless that alternative is infeasible. Here, because the
No-Build alternative would not accomplish any of the Project Needs, it is
clear why the plaintiffs do not argue that this alternative was feasible.
Likewise, while the No-Build alternative was considered in the
defendants' 4(f)(2) analysis, we conclude below that there is an implicit
"reasonable and prudent" requirement in Section 4(f)(2). See infra at Part
II.D. Therefore, while the No-Build alternative technically would impose
the least harm on historic property under 4(f)(2), the plaintiffs do not
argue that it was arbitrary not to select the No-Build alternative as the
preferred option.
10
In a Section 4(f) challenge, the plaintiff bears the burden
of showing by a preponderance of the evidence that the
Secretary acted improperly in approving the use of
protected property. See Ringsred v. Dole, 828 F.2d 1300,
1302 (8th Cir. 1987) (citing Louisiana Envtl. Soc'y, Inc. v.
Dole, 707 F.2d 116, 119 (5th Cir. 1983)). Under Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971),
the Supreme Court made clear that while the Secretary of
Transportation's decision is entitled to a presumption of
regularity, a court nevertheless must subject the
Secretary's decision to "probing, in-depth" review. See id. at
415.
When reviewing a Section 4(f)(2) determination, a court
must decide whether the Secretary's ultimate decision was
arbitrary, capricious, or an abuse of discretion. See Citizens
Against Burlington, Inc. v. Busey, 938 F.2d 190, 204 (D.C.
Cir. 1991) (applying arbitrary and capricious review to
Secretary's Section 4(f)(2) determination); Coalition on
Sensible Transp., Inc. v. Dole, 826 F.2d 60, 65-66 (D.C. Cir.
1987) (same). This assessment requires an evaluation of
whether the decision was based on consideration of the
relevant factors and whether there was a clear error of
judgment. See Overton Park, 401 U.S. at 416. The Section
4(f)(2) balancing process "permits the Secretary to engage in
a broad consideration of the ``relative harm' arising from
various alternates [sic]." Coalition on Sensible Transp. Inc. v.
Dole, 642 F. Supp. 573, 603 (D.D.C. 1986), aff'd, 826 F.2d
60 (D.C. Cir. 1987).
The plaintiffs--who believe that the FSU alternative is not
the alternative that would cause the least harm to the
Danville Historic District--claim that the defendants have
violated Section 4(f)(2) in three ways. First, they allege that
the FHWA "completely ignore[d]" the ACHP's conclusion
that the MS alternative was preferable. Second, plaintiffs
contend that each of the defendants' stated reasons for
selecting the FSU alternative deserves no weight, and that
nothing in the administrative record supports the
conclusion that the FSU alternative best minimizes harm.
Third, they argue that the defendants arbitrarily excluded
from detailed consideration an alternative that might have
imposed the least harm on the Historic District--the MS&B
11
alternative. In light of these arguments, we will review for
abuse of discretion the Secretary's decision that the FSU
alternative would do the least harm to Section 4(f)
resources.
B. Section 106: Deference to the Advisory Council on
Historic Preservation
The initial basis on which plaintiffs contend that the
defendants' actions were arbitrary and capricious is that
the defendants failed to take into consideration the
comments of the ACHP. This consideration stems from 16
U.S.C. S 470f (also known as "Section 106"), under which
the Secretary must take into consideration the comments of
the ACHP when contemplating an undertaking that will
affect a site or structure listed in the National Register. As
a preliminary matter, we must determine what level of
deference the Secretary owes to the ACHP's assessment of
the impacts of the MS and FSU alternatives on the Danville
Historic District.
The ACHP is an expert federal agency created by
Congress pursuant to the National Historic Preservation Act
(codified at 16 U.S.C. S 470 et seq. (1994)) ("NHPA"). Under
Section 106 of the NHPA, the ACHP must be given a
"reasonable opportunity to comment" on the effect of
federally-assisted projects on historic properties. See id. We
must decide what weight a federal agency must give to the
ACHP's comments; the amount of deference owed the ACHP
will factor into our analysis of whether the Secretary's
calculus was arbitrary or capricious.
Both courts and the relevant regulations suggest that
Section 106 imposes a limited set of obligations on federal
agencies. See Waterford Citizens' Ass'n v. Reilly, 970 F.2d
1287, 1290 (4th Cir. 1992); 36 C.F.R. S 60.2(a); 36 C.F.R.
S 800.6 (explaining the Section 106 process and requiring
that the Agency "consider" the ACHP's comments). Though
the text of Section 106 does not specify what the Advisory
Council's "opportunity to comment" on a project entails, the
Advisory Council's regulations and the legislative history
demonstrate that the total response required of the agency
is not great. See Waterford, 970 F.2d at 1290 (noting that
12
Section 106 is silent on the proper disposition of a
disagreement between the Advisory Council and the agency
over the potential adverse effect of an undertaking). Indeed,
even the ACHP's own regulations, see 36 C.F.R. S 60.2(a),
state that after having given the ACHP an opportunity to
comment, "the Federal agency may adopt any course of
action it believes is appropriate. While the Advisory Council
comments must be taken into account and integrated into
the decisionmaking process, program decisions rest with
the agency implementing the undertaking." See id.
The Waterford court concluded, "There is thus no
suggestion in either the statute or the legislative history
that section 106 was intended to impose upon federal
agencies anything more than a duty to keep the Advisory
Council informed of the effect of federal undertakings and
to allow it to make suggestions to mitigate adverse impacts
on the historic sites under its protection." See 970 F.2d at
1291; see also Vieux Carre Property Owners v. Brown, 948
F.2d 1436, 1447 (5th Cir. 1991) ("[B]ecause, as the Corps
points out, the Advisory Council's comments are advisory
only and do not bind the Corps to a particular course of
action, the Corps might decide not to require mitigation
measures even if the Advisory Council should recommend
them."); Illinois Commerce Comm'n v. Interstate Commerce
Comm'n, 848 F.2d 1246, 1260-61 (D.C. Cir. 1988) (noting
that Section 106 is a "stop, look, and listen" provision that
merely requires that an agency acquire information before
acting). We agree.
While the ACHP's recommendations do not and cannot
control agency decisionmaking, the relevant agency must
demonstrate that it has read and considered those
recommendations. See Coalition Against a Raised
Expressway, Inc. v. Dole, No. 84-1219-C, 1986 WL 25480
(S.D. Ala. Oct. 20, 1986) (holding that the agency complied
with Section 106 when its responses to ACHP comments
indicated that it took the comments into consideration even
though it ultimately disagreed with them), aff'd, 835 F.2d
803 (11th Cir. 1988).6
_________________________________________________________________
6. One court has suggested that judgments made by the ACHP deserve
"great weight." Preservation Coalition, Inc. v. Pierce, 667 F.2d 851, 858
(9th Cir. 1982). However, Pierce cited no case or statute in support of
its
"great weight" language, and we can find no support for its conclusion.
13
Counseled by the congressional inclusion of Section 106
in the NHPA, we acknowledge historic preservation as a
highly important societal interest. As a civilization, we
suffer a terrible loss if we do not make every reasonable
effort to preserve our heritage, which may be enshrined in
bricks and mortar as well as in books and documents. We
think, however, that Congress was delivering this message
primarily to the federal agencies, rather than trying to
instruct federal appellate courts to inject some subtle (and
inevitably elusive) calibration into their process of reviewing
historic preservation cases. Given the plethora of federal
regulatory statutes that impose obligations on the judiciary
to review administrative decisions, such a construction
might lead to a hodge-podge jurisprudence.
We agree that the FHWA must take the ACHP's
comments into account when balancing alternatives, and
must demonstrate that it gave the ACHP's conclusion
genuine attention: Congress did not create the ACHP so
that it could be a toothless agency. However, the ACHP's
own regulations are clear that the acting federal agency
need not agree with the ACHP's determination that a given
alternative is the "least harm" alternative. In sum, a federal
agency undertaking a project affecting historic properties is
not obligated to give the ACHP's opinion so much weight
that it is foreclosed from making its own decision, though
it must make clear in the record that the ACHP's comments
were taken seriously.
The ACHP opined that "the Mill Street alignment best
avoids or reduces the effects of this project on the Danville
Historic District and should be considered the preferable
alignment." The ACHP reasoned that the proposed
mitigation of the cut-and-cover section would not
adequately minimize the effects of added traffic on the
Factory Street neighborhood; that the FSU option would
create "harmful visual impacts"; and that the underpass
would destroy important topographical, landscape, and
circulation systems that contribute to the Historic District's
character and significance. Although they acknowledge the
correctness of the proposition that the ACHP's concurrence
in the selected alternative is not required by statute,
plaintiffs (in effect) nonetheless contend that because the
14
FHWA did not agree with the ACHP that the MS alternative
imposed the least harm, the FHWA must have acted
capriciously.
We address their contention under our proper standard
of review. Despite the plaintiffs' assertions that the
defendants ignored the ACHP's comments and thus acted
arbitrarily in selecting the FSU alternative, the
administrative record reveals that the defendants seriously
took into consideration the ACHP's objections. First, the
record shows that the ACHP has been heavily involved in
this project. A number of letters and memoranda that
passed between the parties--either written by the ACHP
itself or by FHWA and PennDoT--indicate that the
defendants were aware of the importance of trying to gain
the ACHP's support for the FSU alternative. See, e.g., A 584
(letter from PennDoT) ("We concur that consultation with
the State Historic Preservation Officer (SHPO) and the
Advisory Council on Historic Preservation is crucial for
advancement of the preferred alternative."); A 589 (letter
from FHWA) (scheduling a conference call to discuss
ACHP's January 14 letter expressing a preference for the
MS alternative); A 652 (Mary Means letter) (making
revisions in draft report based on work session with PHMC
and ACHP).
Second, after the ACHP first expressed its concerns, the
defendants hired a consultant suggested to them by PHMC.
Third, the ACHP and PHMC were involved in drafting the
mitigation measures for the selected alternative. The record
thus demonstrates that the defendants considered the
ACHP's comments, and at least to some degree integrated
those comments into the decisionmaking process both
substantively and procedurally. Section 106 does not
require more. We do not, however, put this subject to rest
with these comments about the ACHP's role; rather, in
considering whether the Secretary acted arbitrarily and
capriciously under Section 4(f)(2), we perforce examine the
substantive basis for the defendants' disagreement with the
views of the ACHP.
15
C. Did the Secretary Act Arbitrarily and Capriciously
Under 4(f)(2)?
In addition to their concern about the way the defendants
treated the ACHP's opinion, the plaintiffs submit that there
is no support in the administrative record for choosing the
FSU alternative as the "least harm" alternative, and that
the defendants therefore acted arbitrarily in choosing that
alternative as the bridge replacement plan. Specifically, the
plaintiffs argue that the defendants ignored the noise, air
quality, vibration, traffic, and visual impacts that the FSU
alternative would have on the Historic District; that the
Means Report does not support defendants' position
because it focused on the economic health of the town
rather than its historic preservation; and that Mary Means
was biased toward the FSU alternative since she was later
selected to implement part of the mitigation plans under
that alternative. We will address the first two concerns; we
find no merit in the plaintiffs' third claim, since Means
drafted her report with no knowledge that she might later
be retained as part of the mitigation design team, and we
reject it summarily.
1. Factory Street and West Market Street
First, the plaintiffs claim that the FSU alternative will
destroy the Factory Street "streetscape" and will create a
visual intrusion in the form of retaining walls around the
underpass.7 The ACHP concluded that the streetscape at
the intersection of Factory and West Market Streets (under
which the underpass would run) was an important element
of the Historic District that would be completely altered by
the underpass. Based on National Park Service guidelines,
which acknowledge that intangibles like streetscapes and
layouts of roads are important to the integrity of historic
districts, see U.S. Dep't of Interior, National Park Service,
National Register Bulletin #15, How to Apply the National
_________________________________________________________________
7. While the term "streetscape" does not appear in the NHPA or in the
regulations promulgated thereunder, it is useful in a Section 106
analysis. We take it to refer to the visual impact of, and the interplay
between, the natural and architectural elements that comprise the
affected area.
16
Register Criteria for Evaluation 44 (Rev. 1991), we think
that the plaintiffs are correct that the defendants must
consider more than the individual buildings and structures
in an historic district when analyzing the impact of a
project.
In the instant case, however, the record reflects that the
defendants have considered the effect of the FSU alternative
on the extant streetscape. First, the underpass itself is an
attempt to minimize the effect of increased above-ground
traffic on Factory Street. It not only eliminates traffic on a
portion of Factory Street, but it also eliminates it at the
most important--and beautiful--intersection in the Historic
District: the intersection of Factory and West Market Streets.8
Second, the planned mitigation measures in the FEIS and
MOA will reduce the change imposed on the streetscape of
Factory Street. The measures create a cover section on top
of the underpass, at street level, that will offer an open
space in the Historic District. The landscaping and design
of the cover will be developed in consultation with local
officials, a citizens' advisory committee, and the State
Historic Preservation Office, to be in keeping with the
current character of Factory Street. Apparently, features
such as gas lamps and attractive landscaping are
contemplated.
The plaintiffs submit that even if the top of the
underpass were designed to mimic a functional street, the
presence of safety fencing and vehicle barriers will still be
intrusive, and the underpass will, by definition, change the
streetscape of much of Factory Street. We agree. However,
the street-level surface of the underpass will offer some
aesthetic benefits, and the plaintiffs' criticism, while valid,
must be placed in the entire balancing calculus.
The plaintiffs' second argument is not unlike theirfirst:
that the defendants have ignored that the FSU alternative
would alter the existing character of Factory Street. As the
plaintiffs correctly note, "Adverse effects on historic
properties include, but are not limited to: . . .[i]ntroduction
of visual, audible, or atmospheric elements that are out of
_________________________________________________________________
8. The FEIS states that the "focal point" of Market Street "is the
intersection of Market and Factory Streets."
17
character with the property or alter its setting." See 36
C.F.R. S 800.9(b)(3). The plaintiffs characterize Factory
Street as quiet and residential, in contrast to Mill Street,
where heavy traffic is to be expected. To some extent, the
defendants agree with this characterization, noting in the
FEIS that Factory Street is residential in nature. However,
it appears from the record that only one of the historic
structures facing Factory Street is currently a residence,
although a number of other historic structures, such as
carriage houses and garages, front Factory Street. 9
The Secretary did not ignore this character-altering
drawback to the FSU alternative; indeed, the Means Report
acknowledges that the FSU alternative will affect the
character of Factory Street, and balances it against other
considerations. However, Factory Street's character may not
be altered as drastically as the plaintiffs suggest, since
Factory Street currently is exposed to a fair amount of
traffic composed of cars and trucks that cut from Mill
Street across Market Street onto Factory Street in order to
avoid the heavy traffic on Mill Street. In addition, the
Secretary took into account the benefits to the existing
character of historic Mill Street in choosing the FSU
alternative.
Third, the plaintiffs claim that the FSU alternative will
isolate the part of West Market Street that lies west of
Factory Street from the rest of the Danville Historic District
by making it hard for pedestrians to cross Factory Street.
We do not think that this argument has much to commend
it. The cross streets of Mahoning, Market, and Front will
_________________________________________________________________
9. There are four large residential structures at the intersection of
Factory and West Market Streets, each of which has been deemed a
contributing element to the Historic District. None of the four structures
actually faces Factory Street. Moreover, Factory Street has experienced
some commercialization, since a number of buildings have been
transformed into executive and professional offices. The Evaluation of
Project Need records that ninety people reside on Mill Street, in second-
and third-story apartments over small stores and shops at street level,
whereas six people reside on Factory Street. Two residences facing
Factory Street would be "used" under the FSU alternative. One building
is a non-contributing (that is, non-historic), multi-family dwelling; the
other residence is a contributing structure at 9 Factory Street.
18
remain open to local traffic and existing sidewalks will be
maintained. While portions of the west side of Factory
Street will be slightly less accessible to pedestrians under
the FSU alternative, this factor is not a critical one in
determining whether the defendants acted arbitrarily.
2. Traffic
The plaintiffs also complain about the increased traffic
volume on Factory Street that will occur under the FSU
alternative. According to the plaintiffs, traffic would
increase 400% on Factory Street under the FSU alternative.
The defendants, by contrast, calculate that by the year
2013, traffic would have increased only 226%. Even if we
assume that the plaintiffs' estimate is correct, traffic on
West Market between Factory and Mill Streets is expected
under the FSU alternative to drop by the year 2013 from
525 cars at peak hours to 125 cars at peak, a 420%
decrease. Under the MS alternative, cars and trucks would
continue to detour onto Factory Street to avoid Mill Street
traffic, thus failing to abate traffic problems on either
Factory or Mill Streets. However, under the FSU alternative,
the traffic volume on Mill Street would decrease
substantially. Therefore, though the FSU alternative will
increase traffic on Factory Street, it will reduce traffic on
other streets in the Danville Historic District. We therefore
cannot hold that--based on traffic projections--it was
arbitrary for the defendants to opt for the FSU alternative.
3. Noise, Exhaust, and Vibration
The plaintiffs argue that the defendants failed to consider
the increased traffic noise and exhaust fumes that the
underpass would foster. The record suggests otherwise. As
for exhaust, the defendants calculated the expected carbon
monoxide levels at seventeen sites and determined that
none of the predicted concentrations would exceed National
Ambient Air Quality Standards. While plaintiffs appear to
be correct that the defendants did not study the impact of
the predicted carbon monoxide levels on the historic
structures on Factory Street, we do not believe that this
omission alone renders the defendants' judgment arbitrary.
19
Regarding noise, it is clear that the defendants performed
ample noise studies at fourteen selected sites on Market,
Mill, and Factory Streets, and three sites in Riverside.
Under the No-Build alternative, the noise levels at eleven of
the seventeen sites would equal or exceed abatement levels.
Under the MS alternative, the levels at eleven of the
seventeen sites would equal or exceed abatement levels.
Under the FSU alternative, the levels at eight of the
seventeen sites would equal or exceed abatement levels.
Comparing the alternatives by site, the decibel level is
expected to be louder in 2013 under the MS alternative for
eight sites, and louder under the FSU alternative for six
sites.
The plaintiffs note that the FSU alternative would
increase the noise impact from its present levels at nine of
seventeen sites by 2013. They fail to note that the MS
alternative would increase the noise impact from its present
levels at all seventeen of the sites. Only one site will be
directly impacted by portal noise under the FSU alternative;
the structure on that site will be relocated. The plaintiffs
also express concern that the underpass will eliminate only
a small amount of noise relative to the intrusion it imposes
on the area. However, the District Court found that there
were "four large residential structures" at the intersection of
Factory Street and West Market Street (all four of which are
contributing structures to the Historic District) and that the
noise impacts at the intersection of Factory and Market
would be significantly lower under the FSU alternative than
the MS alternative, since those four structures would be
shielded from Factory Street noise by the underpass. In
sum, from a noise standpoint, the FSU alternative is quite
clearly the preferable choice.
Although the plaintiffs do not indicate that they are
concerned about the effects of vibration on historic
structures under the various alternatives, the record
indicates that the FSU alternative will ameliorate vibration
effects both on Factory Street and on Mill Street. The
defendants calculated that the FSU alternative would result
in "vibration magnitudes at the residences on Factory
Street and Market Street which are less than existing
vibration magnitudes." They reached this conclusion by
20
noting that the new underpass increases the current
pavement surface area by 58%. Since vibration energy is
dissipated through pavement, the increase in traffic
presumably would be countered by the increased (and
sunken) surface area of the underpass's pavement.
The Means Report compares the vibration effects on Mill
and Factory Streets under current and future plans. The
Report points out that the current level of vibration on Mill
Street "threatens the long-term life of the historic
commercial structures that line the downtown's central
artery" and that the reduced vibration on Mill Street under
the FSU alternative makes "redeveloping second story
space" along Mill Street "more attractive." It also concludes
that PennDoT's vibration studies "do not indicate a
significant deterioration in terms of livability near the cut-
and-cover underpass." The record thus suggests that the
FSU alternative will better ameliorate the impacts of
vibration on the Historic District.
4. Historic Structures to be Destroyed
The plaintiffs strongly object to the fact that the
defendants calculated the square footage of the two historic
structures to be relocated or destroyed (one under the FSU
alternative and one under the MS alternative) and
compared the footage when arguing that the FSU
alternative was preferable. The structure to be taken under
the FSU alternative covers .1 acre, whereas the structure to
be taken under the MS alternative covers .3 acres. The
defendants submit that it is better to take a smaller
structure than a larger one. Case law teaches that the
evaluation of harm requires a far more subtle calculation
than merely totaling the number of acres affected. See
District of Columbia Fed'n of Civic Ass'ns v. Volpe, 459 F.2d
1231, 1239 (D.C. Cir. 1971). Nevertheless, the plaintiffs do
not indicate why the smaller structure is the more
historically significant (though it is their burden to show
that the defendants' decision was arbitrary and capricious),
and the record discussion of the two buildings in the FEIS
does not indicate that they differ significantly in historical
worth.
21
The FEIS describes 2-4 Front Street, the historic
structure that would be taken under the MS alternative, as
a multi-family residential structure. The FEIS states, "The
two story frame dwelling which dates from the late 19th
century is in good condition, but has fair historical integrity
due to the application of aluminum siding." The FEIS
describes 9 Factory Street (which would be destroyed under
the FSU alternative) as a two story dwelling with the rear
dating from c. 1857 and the front from the late 19th
century; the statement describes No. 9 as "fair in both
condition and integrity." Although it would have been
helpful for the record to contain more detailed historical
evaluations, we cannot hold that 9 Factory Street is of such
different historical value that it was arbitrary for the
defendants to select the alternative that would require No.
9 to be taken.
5. The Means Report
Finally, plaintiffs allege that the Means Report, which
concluded that the FSU alternative was the preferred
choice, was excessively concerned with the economic
benefits that Mill Street businesses would reap under the
FSU alternative. They imply that this focus on economics
prevented an unbiased analysis of the historic harm that
the FSU alternative would inflict on the Factory Street area.
In support of their argument, the plaintiffs point to
language in the Means Report stating that "from a long-
term economic vitality perspective, [the FSU Alternative] is
the better of the two PennDoT configurations under active
consideration." The plaintiffs contrast that conclusion with
an acknowledgment in the Means Report that "if the
Factory Street cut-and-cover alternative is built, not only
does it do irreparable damage to the traditional skeleton of
this remarkably intact 19th century town, it is highly
probable that it will foreclose any hope of a bypass." From
these two sentences, the plaintiffs argue that the Means
Report acknowledged the serious damage the FSU
alternative would have on the Historic District but
22
permitted the favorable economics of the FSU alternative to
trump those historic concerns.10
While these points weigh in the balance, what is
dispositive is that the Means Report concluded that "the
Factory Street cut-and-cover will have the lesser negative
impact on the town's economic vitality and the overall
community character of the Historic District." (emphasis
added). The Means Report, which we find to be thorough
and sensitive, by no means ignored the impact of each
alternative on the historic properties.
6. Affirmative Reasons for Selecting the FSU Alternative
In addition to considering the FSU alternative's
drawbacks, the defendants laid out in the administrative
record a number of affirmative reasons why the FSU
alternative will inflict less harm on the Historic District.
First, the defendants concluded that the FSU alternative
will physically and visually separate traffic from the Historic
_________________________________________________________________
10. While we need not decide whether the economic perspective is
permissible, the notion that economic vitality will keep the historic
character of Mill Street intact (whereas ignoring the economic health of
the district might lead to further disintegration of Mill Street) might
well
be a relevant factor under the NHPA in a situation like this, where the
economic and historic health of Mill Street are so tightly linked. Indeed,
revitalizing the economic health of Mill Street was one of the stated
purposes of the project. Mill Street merchants and professionals, who are
dedicated to restoring the historic architecture on Mill Street, see supra
at Part I, have formed the Danville Revitalization Corporation ("DRC"),
which is committed to making capital investments in the physical
appearance of Mill Street buildings and facades. Between 1993 and
1996, the DRC contributed financially to twenty projects involving
storefront, signage, and facade improvements. The merchants formed the
DRC partly because the future success of the Mill Street business
district turns on the district's ability to present a "pleasant, small
town,
main street environment in an historic architectural setting." They
believe that the best way for Danville to achieve that kind of setting is
by
reducing traffic on Mill Street. It thus may be true that it is in both
the
historic and economic interests of Danville to reduce traffic on Mill
Street
and to protect the historic architecture that lines the street. However,
as
noted above, we need not decide the appropriateness of the economic
perspective in this case.
23
District, especially on Factory and West Market Streets.
This traffic currently runs the length of the Historic District
on Mill Street. Under the No-Build and MS alternatives,
cars would continue to use West Market and Factory
Streets as a way to avoid the heavy traffic on Mill Street.
Therefore, even under the MS alternative, Factory Street
would not be free from traffic. The FSU alternative would
thus better manage traffic by limiting the number of cars
using Market Street and taking traffic underground for a
fair part of its trip through Danville.
Second, the defendants emphasize that the FSU
Alternative will greatly reduce the crippling traffic on Mill
Street, an area that is as much a part of Danville's Historic
District as Factory Street is. The Means Report discusses
the impact of Mill Street traffic as "contributing to
buildings' physical decay," and "threaten[ing] the long-term
life of the historic commercial structures that line" Mill
Street. Ninety people currently live on Mill Street, and one
of the goals of the project is to "restore the residential
component of the Mill Street neighborhood." In balancing
the harms and benefits of the various alternatives, the
defendants justifiably concluded that the FSU alternative
would do much good for Mill Street on an historic level.
7. Conclusion
For all of the foregoing reasons, the administrative record
supports the FHWA's finding that the FSU alternative will
minimize harm to the Danville Historic District. Even if we
were to conclude that the MS and FSU alternatives would
impose a comparable amount of harm to Danville's Historic
District, we would be bound to uphold the Secretary's
decision. These decisions are vested by law not in unelected
judges but in the accountable Secretary. See Druid Hills,
772 F.2d at 716 ("The Secretary is free to choose among
alternatives which cause substantially equal damage to
parks or historic sites."). The defendants performed a large
number of studies on the various ways in which the
alternatives would impact the Historic District and
adequately weighed the results of the studies in selecting
the preferred alternative. They also considered the more
intangible benefits and harms to Mill and Factory Streets
24
under the competing alternatives. As the foregoing
discussion demonstrates, they considered and responded to
the comments of the ACHP. Therefore, they did not violate
Section 106. And as that discussion also demonstrates, it
was not arbitrary and capricious for the FHWA to select the
FSU alternative under Section 4(f)(2).
D. The MS&B Alternative
The plaintiffs' final argument under Section 4(f)(2) is that
the defendants violated the statute in designating the
MS&B alternative "imprudent" and thus arbitrarily failing
to consider the MS&B alternative in detail in the FEIS as a
possible 4(f)(2) "least harm" alternative.
Courts have held that an alternative that minimizes harm
under Section 4(f)(2) can still be rejected if that alternative
is infeasible or imprudent. See Hickory Neighborhood
Defense League v. Skinner, 893 F.2d 58, 62 (4th Cir. 1990)
(Hickory I) (acknowledging that Section 4(f)(2) contains an
implied "feasible and prudent" test); Druid Hills, 772 F.2d at
716; Louisiana Envtl. Soc'y, Inc. v. Coleman, 537 F.2d 79,
86 (5th Cir. 1976) (same). While the Supreme Court has
articulated what "infeasible or imprudent" means in the
4(f)(1) context, it has not spoken to what those terms mean
in the 4(f)(2) context. Under Section 4(f)(1), an alternative is
not a prudent alternative if there are truly unusual factors
present, if the cost or community disruption resulting from
the alternative reaches extraordinary magnitudes, or if the
alternative presents unique problems. See Overton Park,
401 U.S. at 413. We believe that we should apply a similar
"feasible and prudent" determination to the world of
alternatives that must be considered under 4(f)(2). See
Louisiana Envtl. Soc'y, 537 F.2d at 86 ("Although there is
no express feasible and prudent exception to subsection (2),
the act clearly implies that one is present.").
We note in this regard that 4(f)(1) sets a very high
standard for excluding alternatives that do not use
historically significant property, since Congress has
determined that the use of such property should be avoided
wherever possible. The standard under 4(f)(2) for
eliminating alternatives need not be quite so high, since by
25
the time 4(f)(2) is reached, some historically significant
property will necessarily be used, as is the case here. We
therefore hold that the Secretary must consider every
"feasible and prudent" alternative that uses historically
significant land when deciding which alternative will
minimize harm, but that the Secretary has slightly greater
leeway--compared to a 4(f)(1) inquiry--in using its expertise
as a federal agency to decide what the world of feasible and
prudent alternatives should be under 4(f)(2). We also look
for guidance to caselaw examining what "infeasible or
imprudent" means in the 4(f)(1) context.
The plaintiffs argue that the MS&B alternative, which
would require defendants to build another bridge upstream
to siphon off "through" traffic that now passes through
Danville on its way to a remote location, would minimize
the harm to the Historic District by leaving Factory Street
intact while reducing Mill Street congestion. They also point
out that the Means Report concluded, "Ideally, and most
leaders we discussed it with agree, a bypass is the answer."
The defendants rejected the MS&B option without
performing an in-depth analysis of it because they
concluded the option was imprudent and thus undeserving
of inclusion in the balancing-of-harms test mandated by
Druid Hills. In the FEIS, the defendants offered four reasons
why they had not evaluated MS&B thoroughly and why
they had deemed the MS&B alternative imprudent and
infeasible.
First, the defendants performed a study that asked
drivers who used the Danville-Riverside Bridge whether
they would use an upstream bypass. The 50% response
rate resulted in 3,500 completed surveys, which the
defendants felt was a sufficient sample size. Only 25% of
the respondents indicated that they would use a bypass.
The plaintiffs rejoin that most of the responses came from
local traffic, so that the results were skewed downwards,
though it is not clear in the record that most of the
respondents were traveling locally. A 809 (charting purpose
of respondent's trip but not destination).11 A determination
_________________________________________________________________
11. The plaintiffs are concerned that the proportion of tractor-trailer
responses (which comprised 2% of the total responses) is not
26
that 75% of traffic would continue to use the Danville-
Riverside Bridge calls into serious question the usefulness
of the bypass alternative in drawing traffic away from
Danville. See, e.g., Hickory Neighborhood Defense League v.
Skinner, 910 F.2d 159, 164 (4th Cir. 1990) (Hickory II)
(Secretary may reject as imprudent alternatives that will
not solve or reduce existing traffic problems).
Second, the defendants cited the cost of the project as
high enough to render the MS&B alternative imprudent.
The defendants believed that, for financial reasons, only
one structure could be built, and that building a bypass
upstream would foreclose the most important part of the
project, which was to replace the Danville-Riverside Bridge.
They stated, "There is not, at this time, funding allocated
and programming scheduled to allow the study and
construction of a bypass bridge." While no cost studies
were performed on the MS&B alternative, it is reasonable to
assume that the costs required to build not only another
bridge but also to lay over a mile of roadway and to cover
condemnation, litigation, planning, engineering, and
building costs for that roadway might total many times
what would be required to rebuild the Danville-Riverside
Bridge. Overton Park held that an agency may not exclude
an alternative as imprudent under 4(f)(1) based on cost
unless the costs would be of "extraordinary magnitudes."
401 U.S. at 413. Here, it appears that the costs of an
additional bridge would meet the definition of
"extraordinary."
Third, the defendants highlighted the impact of the
additional construction that would be necessary to build
the MS&B alternative. The MS&B alternative would require
that two bridges be built instead of one, and that an
_________________________________________________________________
representative of the makeup of current bridge traffic. Plaintiffs
calculate
that trucks actually account for 12.5% of all bridge traffic.
Nevertheless,
even if we assume that there were additional responses by truck drivers
such that the proportion of trucks in the survey was 12.5%, and that
each of the additional responses stated that the truck driver would use
the bypass, the survey would have demonstrated that only 33% of
current bridge users would choose the bypass. We believe that a 33%
predicted use rate still calls into question the usefulness of the bypass
alternative.
27
additional 5,500 feet of road be laid, forcing construction
that would impact the environment and communities near
the second bridge site. Fourth, the defendants argued that
there was no need for a bypass, as the FSU or MS
alternative could fill the project needs on its own.
Even if the cost increases would not be extraordinary, the
problematic results of the use survey and the community
and environmental disruption that would result from the
additional construction combine to suggest that the MS&B
alternative was neither prudent nor feasible. In the 4(f)(1)
context, courts have held that an accumulation of smaller
problems that, standing alone, would not individually
constitute unique problems may together comprise
sufficient reason for rejecting an alternative as imprudent.
See Committee to Preserve Boomer Lake Park v. Department
of Transp., 4 F.3d 1543, 1550 (10th Cir. 1993) ("Although
none of these factors alone is clearly sufficient justification
to reject the alternatives in this case, their cumulative
weight is sufficient to support the Secretary's decision.");
Hickory II, 910 F.2d at 163 (holding that a cumulation of
problems may be sufficient reason to reject an alternative
as imprudent); Eagle Found., Inc. v. Dole, 813 F.2d 798,
805 (7th Cir. 1987) (same).
In sum, we cannot conclude that it was arbitrary to reject
this alternative in view of the low predicted use rate, the
impact of the added construction, and the enormously
increased costs, all of which, taken together, make the
MS&B alternative imprudent for minimizing harm under
4(f)(2). We therefore hold that the defendants did not violate
the requirements of Section 4(f) by failing to consider the
MS&B alternative in greater detail.
E. NEPA
While 4(f)(2) ensures that the Secretary puts his thumb
on the scales in favor of protecting historic properties,
NEPA, 42 U.S.C. S 4321 et seq., governs the procedures
surrounding the requisite balancing. Under NEPA,
Congress directed all agencies of the federal government to
include in every recommendation or report on
proposals for legislation and other major Federal
28
actions significantly affecting the quality of the human
environment, a detailed statement by the responsible
official on--
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot
be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of
man's environment and the maintenance and
enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of
resources which would be involved in the proposed
action should it be implemented.
Prior to making any detailed statement, the responsible
Federal official shall consult with and obtain the
comments of any Federal agency which has jurisdiction
by law or special expertise with respect to any
environmental impact involved.
Id. S 4332(2)(C).
The agency must also "study, develop, and describe
appropriate alternatives to recommended courses of action
in any proposal which involves unresolved conflicts
concerning alternative uses of available resources .. . ." Id.
S 4332(2)(E). The detailed statement, known as an
Environmental Impact Statement ("EIS"), is the device that
promotes the fulfillment of NEPA's goal, which is to "control
the more destructive effects of man's technology on his
environment." Township of Springfield v. Lewis, 702 F.2d
426, 429 (3d Cir. 1983) (citation omitted).
The way in which NEPA achieves that goal is a
procedural one. NEPA ensures that an agency has before it
detailed information on significant environmental impacts
when it makes its decisions and guarantees that this
information is available to a larger audience. See Inland
Empire Pub. Lands Council v. United States Forest Serv., 88
F.3d 754, 758 (9th Cir. 1996). "NEPA exists to ensure a
process, not to ensure any result." Id. ; see also Baltimore
Gas & Elec. Co. v. Natural Resources Defense Council, Inc.,
29
462 U.S. 87, 97 (1983) (NEPA requires an agency to take a
"hard look" at the potential environmental consequences of
proposed projects before taking action); Laguna Greenbelt,
Inc. v. United States Dep't of Transp., 42 F.3d 517, 523 (9th
Cir. 1994) (NEPA does not mandate particular substantive
results, but instead imposes only procedural requirements).
Under NEPA, an agency decision "to go forward with a
major federal action after the agency has prepared and
considered an Environmental Impact Statement, requires
the court to determine whether all necessary procedures
were followed, to consider de novo all relevant questions of
law, and to examine the facts to determine whether the
decision was arbitrary, capricious, and an abuse of
discretion." See Concord Township v. United States, 625
F.2d 1068, 1073 (3d Cir. 1980); see also Marsh v. Oregon
Natural Resources Council, 490 U.S. 360, 376-77 (1989)
(stating that courts are to review factual disputes that
implicate substantial agency expertise under the arbitrary
and capricious standard). We make "a pragmatic judgment
whether the [EIS's] form, content and preparation foster
both informed decision-making and informed public
participation," and "[o]nce satisfied that a proposing agency
has taken a ``hard look' at a decision's environmental
consequences, [our] review is at an end." City of Carmel-by-
the-Sea v. United States Dep't of Transp., 123 F.3d 1142,
1150-51 (9th Cir. 1997) (citations omitted).
The plaintiffs contend that the EIS was inadequate
because it failed to consider the MS&B alternative, and that
the FHWA therefore violated NEPA. Specifically, the
plaintiffs allege that the FHWA only considered the Bypass
alternative as a stand-alone alternative--rather than
considering it in conjunction with the MS alternative--and
therefore rejected the bypass as not meeting the primary
purpose of the bridge replacement project. As discussed
above, the plaintiffs believe that the combined MS&B
alternative would most successfully achieve the goals of the
project: to replace the bridge and to limit the traffic volume
on Mill Street. To the extent that FHWA did consider the
MS&B alternative, the plaintiffs argue, FHWA rejected it on
the ground that funding was not available for both a new
bridge and a bypass, and the plaintiffs allege that lack of
30
present funding is an improper reason to reject a viable
alternative.
The defendants respond that they considered the MS&B
alternative in the DEIS and FEIS and rejected it as an
unreasonable alternative for the four reasons it rejected the
alternative under Section 4(f)(2): the origin and destination
study indicated that the great majority of traffic would
continue to use the Danville-Riverside Bridge rather than
the bypass; it would vastly increase the scope and
construction costs of the project; the FSU alternative alone
would satisfy the needs of the project; and it would cause
greater social and environmental impacts than the MS or
FSU alternative would on its own.
NEPA requires the defendants to consider only
"reasonable" alternatives in the EIS. See Presidio Golf Club
v. National Park Serv., 155 F.3d 1153, 1160 (9th Cir. 1998)
(holding that agency must look at "every reasonable
alternative" but "set forth only those alternatives necessary
to permit a reasoned choice"); Druid Hills, 772 F.2d at 713
(stating that the EIS should "go beyond mere assertions"
and should devote substantial treatment to "all reasonable
alternatives"). A number of courts recently have addressed
the extent to which federal agencies must consider
alternatives under NEPA. These courts have concluded that
where the agency has examined a breadth of alternatives
but has excluded from consideration alternatives that
would not meet the goals of the project, the agency has
satisfied NEPA. See, e.g., Morongo Band of Mission Indians
v. Federal Aviation Administration, 161 F.3d 569, 575-76
(9th Cir. 1998) (upholding the defendants' consideration of
alternatives under NEPA as sufficient to permit a reasoned
choice); Friends of the Boundary Waters Wilderness v.
Dombeck, 164 F.3d 1115, 1129 (8th Cir. 1999) (upholding
agency's decision where the FEIS had considered ten
alternative plans of action based on visitor levels and effects
of visitor use, eliminated two alternatives that were deemed
impractical for failing to meet the goals of the project, and
adequately explained why increased visitor use was not a
viable goal).
In the instant case, the defendants sufficiently explained
why the MS&B alternative was not feasible and why it did
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not warrant a highly detailed examination. The plaintiffs'
argument that the MS&B alternative possibly could help
achieve the two project goals of replacing the bridge and
reducing Mill Street congestion encounters the same
responses that the FHWA offered under Section 4(f): low
use rate and excessive construction and environmental
costs. In addition, in arguing for the MS&B alternative, the
plaintiffs have not offered a "specific, detailed
counterproposal that had a chance of success." See City of
Angoon v. Hodel, 803 F.2d 1016, 1022 (9th Cir. 1986);
Friends of the Earth v. Coleman, 513 F.2d 295, 298 (9th
Cir. 1975) (holding that EIS did not have to consider
alternative sites where plaintiffs failed to allege specific
evidentiary facts showing that the alternative sites were
reasonable and viable).
In Druid Hills, the court concluded, "Although the EIS
does not contain what some may feel is a detailed and
careful analysis of the relative environmental merits and
demerits of the proposed action and possible alternatives,
we find no sufficient basis in the record to disturb the
district court's conclusion that appellees adequately
analyzed the alternatives." Id. at 713; see also City of
Carmel, 123 F.3d at 1151 (upholding a "reasonably
thorough" FEIS). There is necessarily a limit to the
thoroughness with which an agency can analyze every
option, see Morongo Band, 161 F.3d at 575 (noting that,
without parameters and criteria, an agency could generate
countless alternatives), and our standard of review is quite
deferential, see Corridor H Alternatives, Inc. v. Slater, 166
F.3d 368, 374 (D.C. Cir. 1999). We conclude that the
defendants adequately considered the MS&B alternative
and its attendant flaws before rejecting it as infeasible. We
therefore will affirm the District Court's grant of summary
judgment for the defendants on the NEPA issue as well.
The judgment of the District Court will be affirmed.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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