Case 153

City of Alexandria v. Slater, 198 F.3d 862 (D.C. Cir. 1999).

Plaintiffs-appellees, City of Alexandria, et al., had challenged the Federal Highway Administration's (FHWA) compliance with the Clean Air Act, the National Environmental Policy Act (NEPA), Section 106 of the National Historic Preservation Act, and Section 4(f) of the Department of Transportation Act in its approval of plans to replace the Woodrow Wilson Memorial Bridge, which connects Virginia and Maryland over the Potomac River. The district court held in favor of plaintiffs. FHWA appealed the district court's decision, except the Clean Air Act issue. As explained below, the circuit court decided in favor of FHWA and reversed the district court's decision.

The district court had found that FHWA violated NEPA because the final Environmental Impact Statement (FEIS) had 1) not afforded detailed consideration to a 10-lane river crossing alternative as a "reasonable alternative"; and 2) insufficiently considered the temporary environmental impact of the construction phase of the project.

The circuit court disagreed. First, it noted that the 10-lane river crossing alternative was not a "reasonable alternative." The reasonableness of an alternative is judged in light of the objectives of the Federal action. A Federal agency can properly exclude those alternatives that do not bring about the ends of the Federal action. The district court had begun its reasoning by holding that FHWA's objectives were improper because they focused on transportation and safety needs. The circuit court, however, rejected that argument by finding that such objectives were reasonable in replacing a congested and structurally unsound bridge.

The district court had then held that the 10-lane alternative was reasonable since it fit the "broad" statement of need and purpose of the project. The circuit court, again, disagreed by pointing out that the purpose and need were quite particular and focused on traffic needs projected for the year 2020. The 10-lane alternative, in the circuit court's view, did not fit those needs in that it would only accommodate half the estimated capacity on peak hours and higher accident rates.

The district court had also held that the 10-lane alternative was a "reasonable alternative" in light of a previous case holding that an agency could not disregard an alternative merely because it did not offer a complete solution to the problem at hand. The circuit court agreed that such was the case within the context of a coordinated effort to solve a broad problem of national scope and where other agencies may be able to provide the remainder of the solution. The circuit court, however, did not find this to be the case with the Woodrow Wilson Bridge replacement, since it was a discrete project within the jurisdiction of just one Federal agency (FHWA).

The circuit court also reversed the district court's decision that NEPA had been violated due to insufficient consideration of the temporary impact of the construction phase of the project. FHWA's consideration seemed reasonable and justified to the circuit court under the circumstances. FHWA had addressed, however briefly, a range of expected construction impacts.

NEPA does not "demand the presence of a fully developed plan that will mitigate environmental harm before an agency can act." The circuit court argued that the brevity of FHWA's discussion on construction impact was justified in light of 1) the proper, and arguably required, need for delay in identifying staging sites; 2) the numerous regulatory constraints that will limit the extent of construction activities; and 3) the "relatively modest" disruption caused by the construction itself in terms of scope and duration.

The circuit court then considered the Section 106 and Section 4(f) issues. The district court had found that FHWA had violated Section 106 by postponing the identification of the sites that were to be used for construction-related ancillary activities. It also held that, since it believed FHWA had not completed the Section 106 identification process, FHWA had also necessarily violated Section 4(f). The circuit court disagreed.

FHWA had conducted several surveys that resulted in the identification of 23 historic properties in the project area. A Memorandum of Agreement (MOA) was signed by, among others, FHWA, the State Historic Preservation Officers of Virginia, District of Columbia, and Maryland, and the Advisory Council on Historic Preservation. The MOA identified the sites to be affected by the project and set forth mitigation measures. The MOA also recognized that the identification of historic properties that could be affected by the actual construction activities would have to be postponed until the sites for construction staging, wetland mitigation and dredge disposal sites were selected. Nevertheless, FHWA bound itself through the MOA to fulfill its Section 106 responsibilities when selecting those sites.

Based on the Corridor H Alternatives case (see Case 152), the district court found that postponing those identification efforts meant that the Section 106 process had not been concluded before the approval of the project. This led the district court to find that Section 106 and Section 4(f) had been violated. The circuit court, however, distinguished the present situation from that in the Corridor H Alternatives case, where FHWA had postponed the entire Section 106 process for a major highway corridor until after it had issued its Record of Decision. By contrast, in the present case FHWA had identified historic properties along the entire project corridor and documented its findings prior to approval of the project. The only part that was deferred was the identification of historic properties "that might be impacted by a small number of 'ancillary activities.'"

Furthermore, FHWA had a good reason for this postponement. The specific identification of construction staging sites requires work that is not conducted until the design stage of the project. The design stage, in turn, may not be completed until after the Final EIS.

Finally, the circuit court noted that the Section 106 regulations in place at the time (i.e., those that went into effect in 1986) allowed the postponement at issue in the present case by encouraging flexibility and specifying they should not be interpreted to prohibit phased compliance at different stages in planning. [Ed. note: the Section 106 regulations that have been in place since 1999 explicitly provide for phased identification of historic properties in certain cases. See 36 C.F.R. § 800.4(b)(2).] The circuit court concluded its discussion of the Section 106 issue by stating that particularly where the sites whose identification is 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" FHWA.

The circuit court ended its opinion by disposing of two Section 4(f) arguments that had been raised by the appellees. The first argument was that FHWA failed to consider all prudent and feasible alternatives to using historic properties. An alternative can only be "prudent" if it satisfies the transportation needs of the project. The circuit court had already held that a narrower bridge did not satisfy the needs of the project. Moreover, appellees did not present a "prudent" alternative that had a less significant impact on historic properties.

The second argument was that FHWA had failed to engage in all possible planning to minimize harm to the historic properties. The circuit court first noted that the appellees did not question the finding that the preferred and selected alternative (of all seven "prudent and feasible" alternatives) would result in the least overall impact to historic properties. Finally, FHWA had mitigation plans for those situations where it could not identify a feasible and prudent plan to avoid impact on a historic property.

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