Case 152

Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368 (D.C. Cir. 1999).

Plaintiffs, Corridor H Alternatives, Inc., and several other environmental and public interest groups, challenged a highway project in West Virginia that had been developed and approved by various Federal agencies. Although study and planning for the Corridor H project, part of the Appalachian Highway Development System, dated from the late 1970s, the project was suspended until 1990 when the current planning efforts were initiated.

The Federal Highway Administration (FHWA) issued the Final Environmental Impact Statement (FEIS) in April 1996, which contained two agreements governing the implementation of the project, including a Programmatic Agreement (PA) establishing procedures for compliance with Section 106 of NHPA.

Plaintiffs filed suit claiming that defendant, FHWA, failed to adequately consider the alternative to improve and use existing roadways and that modifications in the project after the issuance of the FEIS mandated the preparation of a Supplemental Environmental Impact Statement (SEIS). They further questioned FHWA's approval of the project conditioned on eventual compliance with Section 4(f) of the Department of Transportation Act (DOTA) and alleged that the planned project would improperly use Section 4(f) sites.

Specifically, they asserted: 1) that FHWA violated DOTA Section 4(f) by failing to identify all the historic sites it was charged with protecting prior to its decision approving the route of the proposed highway, and by erroneously concluding that the highway would not "use" two of the sites it did identify; and 2) that the agency violated the National Environmental Protection Act by failing to give adequate consideration to the improvement of existing roads as an alternative to the construction of the new highway.

The district court held that the agency had complied with both statutes. In the decision granting defendant's motion for summary judgment, the appellate court noted that the record did not support plaintiffs' arguments that defendants failed to give substantial consideration to alternatives. Although the FEIS only included a limited discussion of plaintiffs' preferred alternative, that document references earlier studies where it was analyzed in detail.

The court also determined that FHWA had taken the required "hard look" and that plaintiffs could not show that FHWA's decision was arbitrary or capricious. While the court recognized that an agency must complete NHPA's Section 106 review before it can begin compliance with Section 4(f), it found that final approval of the project contingent upon compliance with the Section 106 PA satisfied defendant's responsibility to achieve "as certain compliance as possible" at the given phase of the project, and noted that implementation of the PA would ensure that full compliance was achieved before any construction begins in an area.

The court dismissed plaintiffs' arguments that defendant's condition approach defeated the purposes of Section 4(f), finding that FHWA had considered its approach in light of its regulations and that its interpretation of the statute and its regulations was reasonable and not plainly erroneous.

Additionally, the court held that while defendant may not have concluded Section 4(f) compliance for specific properties, it was clear that defendant had made a final determination about the non-use of Section 4(f) properties, and that determination was ripe for review.

In its concluding remarks, the court stated that nothing in its opinion should discourage plaintiffs from continuing to seek Mt. Graham's inclusion in the National Register of Historic Places, noting that this opinion may alleviate many of plaintiffs' concerns.

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