Case 154

Concerned Citizens Alliance, Inc. v. Slater, 176 F.3d 686 (3rd Cir. 1999).

Danville, Pennsylvania, which contains a 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, several State and Federal agencies determined that the bridge needed to be replaced. Plaintiffs, the Concerned Citizens Alliance, a group of Danville area residents, sued over defendant Federal Highway Administration's (FHWA) selection of a particular bridge alignment that would send traffic through the Danville Historic District along Factory Street after it exited the new bridge.

Plaintiffs argued that FHWA failed to comply with the requirements of Section 4(f) of the Department of Transportation Act by arbitrarily and capriciously selecting the Factory Street Underpass alignment as the preferred alternative. Plaintiffs claimed that defendants ignored the conclusion of the Advisory Council on Historic Preservation (Council) that another alternative, the Mill Street Plus Bypass alternative, would minimize harm to the Danville Historic District. Additionally, plaintiffs alleged that defendants violated both Section 4(f) and the National Environmental Policy Act (NEPA) by failing to evaluate, in detail, the Mill Street Plus Bypass alternative, which would, in addition to rebuilding the current bridge, build a second bridge about a mile upstream. The second bridge would allow traffic to reach the connection to an interstate highway without going through the center of Danville. The district court granted summary judgment for defendants on all grounds, and this appeal ensued.

In determining whether the FHWA selection of the Factory Street Underpass alternative violated Section 4(f), the circuit court first considered the amount of deference that FHWA owes to the Council. The circuit court noted that the Council was an expert agency created to comment on federally assisted projects involving historic properties. Citing approvingly the decision in Coalition Against a Raised Expressway, Inc. v. Dole (see Case 95), the circuit court stated that "while the [Council's] recommendations do not and cannot control agency decision making, the relevant agency must demonstrate that it has read and considered those recommendations." The circuit court concluded that FHWA must take the Council's comments into account when weighing the alternatives, and must demonstrate that it gave the Council's conclusion genuine attention: "Congress did not create the [Council] so that it could be a toothless agency."

The circuit court then proceeded to consider whether defendants acted arbitrarily in concluding, pursuant to Section 4(f), that the Factory Street Underpass alternative would inflict the least amount of harm on the historic district. After analyzing each of the plaintiffs' arguments, and thoroughly reviewing the administrative record, the circuit court determined that the record supported FHWA's finding that the Factory Street Underpass alternative would minimize harm to the historic district. The circuit court stated that defendants had performed a large number of studies and weighed the results properly in selecting the preferred alternative. It also found that the record showed FHWA appropriately considered, and responded to, the Council's comments through studies of their own and joint drafting of a Memorandum of Agreement. Therefore, the circuit court held that defendants did not act arbitrarily or capriciously in their Section 4(f) selection of the Factory Street Underpass alternative.

Finally, the circuit court analyzed whether defendants violated NEPA. Plaintiffs contended that the Environmental Impact Statement (EIS) was inadequate because it failed to consider the Mill Street Pls Bypass alternative. NEPA requires that defendants only consider "reasonable" alternatives in the EIS. Courts have found that where an agency has examined other alternatives and leaves out those that do not meet the purpose and need of the project, the agency has satisfied NEPA. The circuit court found that FHWA had adequately determined that the Mills Street Plus Bypass alternative was not feasible due to a low use rate and its excessive construction and environmental costs. This alternative was not reasonable and, thus, did not have to be considered under the EIS.

The circuit court therefore affirmed the district court's grant of summary judgment for defendants.

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