Case 95

Coalition Against a Raised Expressway, Inc. v. Dole, [1987] 17 Envtl. L. Rep. (Envtl. L. Inst.) 20,466 (S.D. Ala. Oct. 20, 1986), affd, 835 F. 2d 803 (11th Cir. 1988).

The Coalition Against a Raised Expressway (CARE), with the National Trust for Historic Preservation as intervenor, sought to enjoin construction of an elevated interstate highway connector near several historic districts and buildings, listed on the National Register of Historic Places, and a National Historic Landmark. Plaintiffs alleged that the Federal Highway Administration (FHWA) authorized construction of the elevated highway without properly fulfilling the requirements of the National Historic Preservation Act (NHPA), the National Environmental Policy Act (NEPA), Section 4(f) of the Department of Transportation Act, and other statutes and regulations.

Pursuant to Section 106 of NHPA and its implementing regulations, FHWA had consulted with the Advisory Council on Historic Preservation but failed to reach a Memorandum of Agreement to mitigate the adverse effects of the project. Plaintiffs argued that FHWA failed to consider and properly respond to the Advisory Council's comments during the Section 106 process. The district court disagreed with plaintiffs, finding that although FHWA disagreed with the Council's comments, FHWA did consider the comments and, thus, complied with NHPA. The court explained that "defendants are not obligated to accept the Advisory Council's comments." 17 Envtl. L. Rep. at 20,472.

Although the district court found that FHWA complied with Section 106 of NHPA, it observed that compliance with "Section 106 does not necessarily satisfy the mandate of Section 110(f) . . . ." Id. Plaintiffs had alleged that FHWA did not comply with Section 110(f), which mandates that Federal agencies minimize harm to National Historic Landmarks to the maximum extent possible. The court reviewed the legislative history of Section 110(f) and found that when this section was added in 1980, the statutory responsibilities of Federal agencies were "significantly expanded." Id. The legislative history states that Section 110(f) "'establishes a higher standard of care to be exercised by federal agencies' than the standard under § 106 of NHPA . . . ." Id. (quoting H. Rep. No. 1457, 96 Cong., 2d Sess. 52 (1980)). Further explaining the relationship between Sections 106 and 110, the court noted that Section 110 does not supersede Section 106, but requires an agency to exercise a higher standard of care in agency planning when a project affects a National Historic Landmark. Id.

The district court did not render a final judgement on the Section 110(f) claim, however, because the court determined that compliance with Section 4(f) of the Department of Transportation Act would moot the Section 110(f) claim. The court ruled in favor of plaintiffs on the Section 4(f) claim, finding that FHWA's actions constituted a "constructive use" of the historic properties and, therefore, fell within the requirements of Section 4(f). Id. at 20,470. Based on a review of the evidence in the record, which included a recommendation from the Advisory Council that construction take place on the east side of the river to avoid adverse impacts on the historic properties, the court determined that FHWA's decision not to prepare a Section 4(f) statement was arbitrary and capricious and ordered FHWA to comply with the statute.

In addressing plaintiffs' NEPA claim, the district court observed that, unlike Section 4(f), the mandate of NEPA is procedural and the Federal agency "need not elevate environmental concerns over any other factor . . . ." 17 Envtl. L. Rep. at 20,469. The court found that FHWA adequately considered alternatives to the elevated expressway in its environmental impact statement (EIS). The court explained that when a Federal agency prepares an EIS "subjective impartiality is not required, so long as it does not taint the decisionmaker's good faith objectivity." Id. (citing Movement Against Destruction v. Trainor, 400 F. Supp. 533, 547 (D. Md. 1975)). Based on the record, the district court granted summary judgement in favor of FHWA on the NEPA claim. On appeal, the 11th Circuit affirmed the district court's ruling without addressing the two NHPA claims, since the parties had not raised those issues on appeal. 835 F.2d at 806 n. 4.

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