Appendix — Save Barton Creek Ass'n v. Federal Highway Administration
Supreme Court brief1992
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Supreme Court, U.S.
9]-) Go Fie
APR 3 1992
OFFICE OF THE CLERK
No.
In the Supreme Court of the United States
October 1991 Term
SAVE BARTON CREEK ASSOCIATION, INC.,
WE CARE AUSTIN, INC., and AUSTIN
CROSSROADS, INC.,
Petitioners
V.
FEDERAL HIGHWAY ADMINISTRATION (FHWA),
TEXAS DEPARTMENT OF TRANSPORTATION, and
MOPAC SOUTH TRANSPORTATION CORPORATION,
Respondents
Petition for Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit
APPENDIX
to the Petition for Writ of Certiorari
David O. Frederick,
Counsel of Record for Petitioners
The Law Office of David Frederick
2103 Rio Grande
Austin, Texas 78705
(S12) 478 - 1968
(512) 479 - 8269 [facsimile]
CONTENTS
Decision of the Court of Appeals
Decision of the District Court
Order of the District Court amending
its decision
Order of the Court of Appeals denying
panel and en banc rehearing
Department of Transportation’s section-by-
section analysis of its regulation on Timing of
Administration Activities [23 C.F.R. § 771.113.]
Notation of corporate
status: No Petitioner is
a subsidiary or parent of
another corporation.
App. |
App. 35
App. 65
App. 69
App. 71
No. 91-8036
United States Court of Appeals,
Fifth Circuit
Jan. 17, 1992
(950 F. 2d 1129)
Rehearing denied February 24, 1992
SAVE BARTON CREEK ASSOCIATION,
WE CARE AUSTIN and AUSTIN CROSSROADS,
Plaintiffs-Appellees and Cross-Appellants
V.
FEDERAL HIGHWAY ADMINISTRATION (FHWA) and
TEXAS STATE DEPARTMENT OF HIGHWAYS AND
PUBLIC TRANSPORTATION (TDH),
Defendants-Appellants and Cross-Appellees,
and
MOPAC SOUTH TRANSPORTATION CORPORATION.
Intervenor-Defendant and
Appellant-Cross-Appellee.
App. 1
PER CURIAM:
Plaintiffs/appellees! Save Barton Creek Association,
We Care Austin, and Austin Crossroads, three local
environmental organizations, brought suit against the
defendants/appellants, the Federal Highway Administration
("FHWA"), the Texas State Department of Highways and
Public Transportation ("TDH"), and the MoPac South
Transportation Corporation ("Corporation"), seeking to
enjoin the construction of two highway projects in Austin,
Texas. These projects are MoPac South and Segment 3 of a
proposed Austin Outer Loop. The district court enjoined the
appellants from all construction and development activities on
MoPac South south of Hannon Lane and on the entire Austin
Outer Loop pending their compliance with the National
Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§
4321-61 (1982). We reverse.
I. FACTS AND PRIOR PROCEEDINGS
MoPac South and Segment 3 are two roadways
planned and now partially constructed in a portion of
southwest Travis County, Texas. MoPac South is a 5.5 mile
southern extension of a north-south freeway, MoPac, located
in West Austin. It was conceived in the early 1980's as a
major radial roadway to serve South Austin. Also conceived
in the early 1980's. the Austin Outer Loop is a proposed 82
1 Note, the plaintiffs cross appeal on three narrow issues: 1)
that the district court ignored their “unclean hands” argument to the
defendants’ equitable laches defense; 2) that the court erred by failing
to order NEPA compliance for the year 2006 second phase of MoPac
South; and 3) that the court erred in allowing the Corporation to
intervene in this case. Since we reverse the district court’s injunction,
these issues are moot.
App. 2
mile circumferential freeway which in planning has been
divided into five segments. The segment which is to be built
in the southwest corridor of the Austin Outer Loop has been
designated by the TDH as Segment 3, the second roadway
project in dispute. Segment 3 is the portion of the
contemplated Austin Outer Loop which will intersect with the
southern terminus of MoPac South. Both of these highways,
MoPac South and Segment 3, traverse the Austin-area
Edwards Aquifer, a sole source drinking water aquifer in
southern Travis and northern Hays Counties, southwest of
Austin.
The appellees instituted this suit for declaratory and
injunctive relief requesting a declaration that the Austin Outer
Loop, including Segment 3, and MoPac South were “major
Federal actions” for the purposes of NEPA and required the
preparation of a regional environmental impact statement
("EIS") prior to their construction. The appellees alleged
that the FHWA was in violation of NEPA for allowing
continued construction of MoPac South when it was tied in
with the rest of MoPac, which was built with federal aid, and
also in planning for the construction of the Austin Outer
Loop. Furthermore, specifically with regard to the Austin
Outer Loop, they asserted that the FHWA allowed the
project’s unlawful segmentation. Additionally, the appellees
argued that the state defendants, the TDH and the
Corporation, were acting to frustrate federal environmental
law by characterizing the most environmentally sensitive
segments of these highway projects as state projects exempt
from NEPA. The appellees also contended that the failure to
prepare a regional environmental impact statement ("EIS")
under NEPA on the Austin Outer Loop would result in
irreversible contamination of the Edwards Aquifer, causing a
2 We sketch a factual overview of the case here, reserving a
further detailing of the facts for our analysis below.
App. 3
——————<<
pe"
significant hazard to public health.
After conducting a fact intensive bench trial,3 the
district court concluded that commencing construction of
Segment 3 without NEPA compliance was improper because
the Austin Outer Loop was a proposal for "major Federal
action." Thus, Segment 3 could not be segmented from the
overall proposal and funded separately prior to completion of
the environmental assessment process on the entire Austin
Outer Loop pursuant to NEPA. With regard to MoPac
South, the district court held that since it had been planned
3 Prior to the bench trial, the parties filed a proposed agreed
pretrial order containing extensive stipulation of facts. On appeal, a
controversy ensued concerning the stipulations. The stipulations on
record are divided generally into three groups: stipulations # 1-50,
stipulations # 61-63, and stipulations # 64-299. The appellees assert
that the district court did not accept the proposed pretrial order for
stipulations # 61-299, and thus, the stipulations are largely moot. In
essence, according to the appellees, this Court need not expend effort
examining the proposed stipulations. In contrast, the appellants
contend that, while the district court did not sign the pretrial order, it
was duly filed and entered. Furthermore, the district court's
memorandum opinion and order was based on the testimony and
evidence presented and upon consideration of the arguments of
counsel; that body of record evidence included numerous references to
the parties’ stipulations. Additionally, throughout the bench trial, the
district court permitted counsel freely to refer to the stipulations.
At no point before, during, or after the tral did the district court
State or imply that it would not accept the stipulations generally or had
rejected them specifically. Ultimately, according to the appellants, the
appellees have demonstrated no good reason to depart from the
accepted rule that matters which are stipulated in the pretrial order
are binding upon the parties, absent some modification, and usually
cannot be pursued on appeal. Our review of the record also indicates
that the appellees themselves utilized the same stipulations they
asserted should be rendered largely moot. Consequently, this Court
has applied all the stipulations as relevant.
App. 4
for construction as a part of Segment 3, itself an integral part
of a federal project, MoPac South “must necessarily be an
integral part of a federal project and subject to NEPA."
Furthermore, MoPac South was subject to NEPA "because
the project is an extension of a federal project (MoPac), a
connection of three federal projects (MoPac, U.S. 290, and
the Austin Outer Loop), and it lacks substantial independent
utility." Additionally, intimating but in no way describing or
making findings about some surreptitious actions on the part
of the appellants, the district court alluded to “the
questionable nature of the TDH’s activity” as well as to the
fact that "the evidence does not reveal any measurable good
will on the State’s part."
In addressing the extent of the injunctive relief, the
district court acknowledged the futility of enjoining the
construction of MoPac South from U.S. 290 to Slaughter
Lane, which was 96% complete, and the construction of
MoPac South from Slaughter Lane to Hannon Lane, which
was 42% complete. All construction on the Austin Outer
Loop and MoPac South south of Hannon Lane, however,
was enjoined until the completion of the procedures provided
under NEPA for "major Federal action." The district court
conceded it could not determine the requisite environmental
studies needed to be conducted on the projects. The court
simply asserted that it trusted that the federal law could define
the requirements of the NEPA EIS. Though it recognized
that it lacked the high level of technical expertise to deterinine
whether a regional EIS was necessary, the court did order
TDH to prepare an EIS on Segment 3. The district court did
not disturb in any way an earlier finding it had made that
there was no evidence with respect to environmental injury
App. 5
resulting from construction of Segment 3 and MoPac South.4
II. DISCUSSION
The appellants advance three basic contentions. First,
they urge that the appellees’ claims are not npe for judicial
review because there has been no "final" administrative action
that would permit construction of the proposed highway
projects using federal funds. Second, they assert that the
TDH has been solely responsible for the planning, design,
and construction of both MoPac South and Segment 3 of the
Austin Outer Loop. Since state-funded projects are not
controlled by FHWA and in no way obligate the federal
government to any present or future acts, the highway
projects cannot be labeled as "major Federal actions" for the
purposes of NEPA. Third, the appellants concede that case
law and the FHWA regulations do establish that under certain
circumstances, segmentation of federal-aid highway projects
can be improper under NEPA. According to the appellants,
however, in applying these principles to these projects it is
apparent that neither MoPac South nor Segment 3 of the
Austin Outer Loop has been improperly segmented from a
federal-aid highway project.
A. Ripeness
4 At a hearing for a preliminary injunction, the district court
heard testimony of the appellees’ own expert that no documented case
exists in which a highway construction has ever contaminated an
aquifer. Furthermore, none of the witnesses were able to offer
substantiated evidence of injury to the aquifer. The appellees had
relied on the fact that the aquifer has been designated a sole source
drinking aquifer, and thus vulnerable to contamination. Ultimately,
although the court recognized the aquifer’s vulnerability, it found that
the appellees had failed to prove substantial threat of irreparable injury
if the injunction was not granted.
App. 6
According to the appellants, this case cannot be ripe
for judicial decision absent a final action by the FHWA.
Judicial review of federal agency action is governed by the
requirement of Section 10(c) of the Administrative Procedure
Act ("APA"), 5 U.S.C. § 704 (1982), which provides that
only “final agency action" is subject to judicial review. See,
e.g., ULujan v. National Wildlife Fed’n, --- U.S. ----, 110
S.Ct. 3177, 3185, 111 L.Ed.2d 695 (1990). The appellants
contend that even if one assumes for argument’s sake that the
district court could have found that NEPA does apply in this
case, the FHWA has taken no final action upon which to base
APA review as to either MoPac South or any part of a
proposed Austin Outer Loop. The FHWA has not approved
a draft EIS for public circulation, a final EIS, a location, or
funding for any part of either MoPac South or Segment 3 of
the Austin Outer Loop.
We recognize that the requirement of finality has been
applied in actions seeking to enjoin on environmental grounds
the construction of highways. The appellants point to several
cases in which the rule requiring finality and the related and
overlapping doctrine of ripeness have been exercised to
conclude that court intervention would not only be a waste of
judicial resources, but also improper interference in the
administrative process. Ash Creek Mining Co. v. Lujan,
934 F.2d 240, 243 (10th Cir.1991) (finding Ash Creek’s
action unripe for judicial review because it has failed to show
that the "Department [of Interior]’s proposed exchange of the
Ash Creek Coal Leasing Tract for the Whitney Benefits Tract
constitutes ’final agency action’ ") (emphasis in original);
Environmental Defense Fund, Inc. v. Johnson, 629 F.2d
239, 241 (2d Cir. 1980) (concluding that the Corps of
Engineers’ issuance of a recommendation report of further
study of the Hudson River Skimming Project not yet under
construction could not be characterized as a "final agency
App. 7
action"); rm Connecti itizens Action Group v.
Dole, 638 F.Supp. 1297, 1299-1300 (D.Conn.), aff'd per
curiam, 804 F.2d 804 (2d Cir. 1986), cert. denied, 481 U.S.
1068, 107 S.Ct. 2460, 95 L.Ed.2d 869 (1987) (finding the
claims not ripe for judicial review because, inter alia, no
construction had begun on proposed Relocated Route 6).
These cases are properly distinguishable from the case
on appeal. Our decision does not resolve a dispute
concerning “a hypothetical highway"; we are not
“adjudicating the legality of non-events." See National
Wildlife Fed'n v. Goldschmidt, 677 F.2d 259, 263 (2d
Cir.1982). This case involves concrete disputes over tangible
interests having immediate and practical impact. We
acknowledge that the two projects at issue may become a part
of a larger project. But that project may never come to
fruition. At this stage, Segments 1, 2, 4, and 5 of the Austin
Outer Loop are merely tentative, preliminary, and at best
contemplated actions. We must address the issues raised,
however, because they arise from the portions of the
proposed larger project which have been or are being built.
As of the date of the district court's decision,
construction of MoPac South from U.S. 290 to Slaughter
Lane was 96% complete, and construction of MoPac South
from Slaughter Lane to Hannon Lane was 42% complete.5
Additionally, construction of Segment 3 was approximately
10% complete. We are governed by the finality requirement
which is to be interpreted in a “pragmatic way." Abbott
Lab. v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1516,
18 L.Ed.2d 681 (1967). We hold that this case cannot be
dismissed On ripeness grounds. These projects have left the
5 Furthermore, as the district court acknowledged, the TDH
has expended over $10,000,000 in the construction of MoPac South and
the Corporation has donated over $10,000,000 worth of right-of-way
and services to the state for MoPac South.
App. 8
aE
drawing board and have entered varied stages of
construction. Thus, we turn to the question of whether these
projects fall within the purview of NEPA.
B. Major Federal Action
The district court’s ruling that NEPA applies to
MoPac South and Segment 3 stems from an erroneous legal
conclusion that the Austin Outer Loop constitutes a "
‘proposal for major [FJederal action’ subject [to] an
environmental document." NEPA requires that federal
agencies consider the environmental consequences of “major
Federal actions significantly affecting the quality of the human
environment." 42 U.S.C. § 4332(2)(C). The requirements
of NEPA, which include, among other things, the submission
of an EIS, apply only when the federal government's
involvement in a project is sufficient to constitute "major
Federal action."6 Thus, the dispositive issue in this case is
6 The statutory and regulatory criteria for federal-aid
highway funding is an elaborate, intricate scheme. Title 23 of the
United States Code sets forth the legal framework for the federal-aid
highway program, which is, in reality, a federally assisted state
program. 23 U.S.C. § 145 (1988). The states own, construct, and
maintain the highways which form the federal-aid highways wituin their
borders. The state’s incremental stages of highway construction are
included in the state's programs of projects which are submitted to the
FHWA for approval pursuant to 23 U.S.C. § 105. Section 105 of 23
U.S.C. provides that a state desiring to avail itself of the benefits of
federal assistance must submit to the FHWA a program of projects for
which federal aid may be sought, known as the "105 Program."
Recognizing that a state ultimately may not seek federal aid for some
projects on a 105 Program, the FHWA regulations contemplate early
environmental coordination between the state and the FHWA, prior to
the state’s actual proposal and request for federal funding assistance.
23 C.F.R. § 771.111.
Programs may be approved in whole or in part, but the FHWA
App. 9
whether at this juncture sufficient federal involvement exists
in the Austin Outer Loop Project to constitute "major Federal
action" affecting the environment under NEPA. We are
cognizant that "[t]he purpose of NEPA is to require that
federal decision-makers consider the environmental
consequences of their actions before deciding to proceed."
Swain v. Brinegar, 542 F.2d 364, 369 (7th Cir. 1976) (en
banc) (emphasis added).
No litmus test exists to determine what constitutes
“major Federal action." Furthermore, "{f]ederal courts have
not agreed on the amount of federal involvement necessary to
trigger the applicability of NEPA." Village of Los Ranchos
de Albuquerque v. Barnhart, 906 F.2d 1477, 1480 (10th
Cir. 1990), cert. denied, --- U.S. ----, 111 S.Ct. 1017, 112
is prohibited by law from approving any project on a proposed program
which ts not part of an approved federal-aid system. Program approval
does not constitute an obligation of funds, or establish a date of
eligibility for federal funding. 23 C.F.R. § 630.112(c) (1991). Ifa
project is to be federally funded, however, it must first be listed on a
program approved by the FHWA. In addition to being part of an
FHWA approved federal-aid highway system and included in an
approved Section 105 Program, a project must also meet the
requirements of environmental regulations to qualify as an FHWA
project. Under the FHWA regulation, a project cannot be eligible for
agency funding unless: it is determined to be a categorical exclusion
(need not be subject to environmental analysis); is found to have no
significant impact as a result of an environmental assessment; or is the
subject of an FHWA approved final EIS and record of decision. 23
C.F.R. § 771.113. Furthermore, for a highway to qualify for
federal-aid funding, it must also have its plans, specifications, and
estimates approved by the FHWA, and receive prior concurrence from
the FHWA before the award of the construction contracts.
None of these requirements has been met by either MoPac
South or any segment of the Austin Outer Loop. Accordingly, neither
project is presently eligible for federal funding, and neither is a
federal-aid highway project subject to NEPA as a result of asserted
FHWA involvement.
App. 10
L.Ed.2d 1099 (1991). Yet both the federal regulations and
the courts have attempted to provide guidance as to what
constitutes "major Federal action."
The Council on Environmental Quality ("CEQ") has
issued regulations defining “major Federal action." These
regulations are entitled to substantial deference. Andrus v.
Sierra Club, 442 U.S. 347, 358, 99 S.Ct. 2335, 2341, 60
L.Ed.2d 943 (1979). The regulations provide that “major
Federal action” encompasses not only actions by the federal
government, but also actions by nonfederal actors “with
effects that may be major and which are potentially subject to
Federal control and responsibility." 40 C.F.R. § 1508.18
(1991) (emphasis added). The district court placed heavy
reliance on this regulation in making its determination that the
Austin Outer Loop is a “major Federal action."
We recognize that “major Federal action” can exist
when the primary actors are not federal agencies.
Nonetheless, the district court appears to have placed undue
reliance on only a portion of the CEQ’s regulation by
focusing solely on the “potentially subject" factor, while
dismissing with seeming facility the “Federal control and
responsibility" factor. "[T]he distinguishing feature of
‘federal’ involvement is the ability to influence or control the
outcome in material respects. The EIS process is supposed
to inform the decision-maker. This presupposes [the
decision-maker] has judgment to exercise. Cases finding
‘federal’ action emphasize authority to exercise discretion
over outcome." W. Rodgers, Environmental Law § 7.6, at
763 (1977).
In an attempt to find the requisite amount of federal
involvement necessary to trigger the applicability of NEPA,
some courts have echoed the CEQ’s regulations and the
suggestions of commentators, and asserted that the touchstone
of “major Federal action” constitutes a federal agency's
authority to influence nonfederal activity. "[T]he federal
App. ll
ee | hLCLTLlU,
agency must possess actual power to control the nonfederal
activity." Sierra Club v. Hodel, 848 F.2d 1068, 1089 (10th
Cir.1988). See, e.g., Atlanta Coalition on the Transp.
Cnisis, Inc. v. Atlanta Regional Comm'n, 599 F.2d 1333,
1347 (Sth Cir. 1979) (federal funding assistance for local
planning process does not alone constitute "major Federal
action" where all decisions are entrusted to the state and local
agencies).? Ultimately, "we do not quarrel with the
proposition that federal involvement can in some
circumstances be so massive, so pervasive, that ‘the acts of
the state are in reality federal actions.” " Atlanta Coalition,
599 F.2d at 1346 (citation omitted).
The extensive record on appeal, however, fails to
show any evidence of any significant federal involvement,
much less “massive” involvement. At the present time, work
on MoPac South and Segment 3 of the Austin Outer Loop
has progressed through right-of-way acquisition to
construction without FHWA approval or funding.
Furthermore, state and local funding of these projects can
never be reimbursed by the FHWA because the state did not
? Another characterization of this control factor is whether
tederal involvement in a nonfederal project is sufficient to “federalize”
the project for purposes of NEPA. See, e.g., Maryland Conservation
Council, Inc. v. Gilchrist, 808 F.2d 1039 (4th Cir. 1986); Winnebago
Tribe of Nebraska v. Ray, 621 F.2d 269 (8th Cir.), cert. denied, 449
U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980). The appellees contend
that both Segment 3 and MoPac construction should not commence
prior to a NEPA analysis because the number of federal controls on
both projects is adequate to “federalize” them.
8 A less pervasive view is that a highway project constitutes a
“major Federal action” upon receipt of location approval from the
FHWA. See, e.g., City of Boston v. Volpe, 464 F.2d 254 (Ist
Cir.1972); Lathan v. Volpe, 455 F.2d 1111 (9th Cir.1971); Sierra Club
v. Volpe, 351 F.Supp. 1002 (N.D.Cal. 1972).
App. 12
obtain prior authorization from the FHWA for the
expenditure of funds, did not obtain FHWA approval of
plans, specifications and estimates, and did not obtain
concurrence from the FHWA before awarding the
construction contracts. 23 U.S.C. §§ 106, 112(d) (1988);
23 C.F.R. § 1.9(a) (1991).
In actuality, no federal funds have been requested or
spent, and no federal approvals have been given. The state is
simply building some highways for its own use. Of
particular importance is the fact that the federal authorities
strongly disavow any interest in these highways. They also
are appellants with the state officials in this case. The only
federal touching of the projects at all consists of state officials
taking advantage of the FHWA’s early coordination
procedure and beginning to compile NEPA compliance
documentation so as to preserve state eligibility for federal
funding.
Though the district court acknowledged that "[t]he
mere prospect of future federal funding is not enough,” it did
take specific notice that according to the "Current Status
Report" on the Austin Outer Loop, Segments 1, 2, 4, and 5
"are headed for some federal funding.“ Furthermore, the
court specifically referred to testimony from a TDH engineer
that at the estimated cost of the Outer Loop, somewhere
between $400 and 800 million, the project is " ‘not likely’
[to] be funded by the state alone." Additionally, although the
district court recognized that the TDH has not requested any
federal aid for any section of the Austin Outer Loop, it found
the probability of a request for federal funding “too great" to
allow the TDH to construct one portion of the Austin Outer
Loop without following federal law. This Court has
recognized, however, that "the possibility of federal funding
in the future for a project or group of projects does not make
that project or projects "major [F]Jederal action’ during the
planning stage." Atlanta Coalition, 599 F.2d at 1347
App. 13
(citations omitted). See also City of Boston v. Volpe, 464
F.2d 254, 258 (1st Cir.1972) ("[{T]he adoption of certain
federal standards and specifications in the hope of qualifying
for federal assistance cannot transform a state or local project
into a federal one”).
Furthermcre, even if the district court were correct
that the state contemplates constructing some of the speculative
Austin Outer Loop with federal funds, it does not follow that
an EIS is now required. Until there has been a “proposal,”
and until there has been a "recommendation or report” on
that proposal, there is no requirement for an EIS.!9 Kleppe
9 A" ‘[p]roposal’ exists at that stage in the development of an
action When an agency subject to [NEPA] has a goal and 1s actively
preparing to make a decision on one or more alternative means of
accomplishing that goal and the effects can be meaningfully
evaluated.” 40 C.F.R. § 1508.23 (1991).
10 The Congress authorizes and directs that, to the fullest
extent possible: ... (2) all agencies of the Federal Government shall--
* * _ =-— © *
(C) include in every recommendation or report on proposals for
legislation and other major Federal actions significantly affecting the
quality of the human environment, a detailed statement by the
responsible official on--
(1) the environmental impact of the proposed action,
(11) any adverse environmental effects which cannot be avoided
should the proposal be implemented,
(111) 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.
NEPA § 102, 42 U.S.C. § 4332 (emphasis added); see also 40 C.F.R. §
1508.12 (1991) (defining “federal agency"); id. § 1508.18 (“major
Federal action"); id. § 1508.27 ("significantly"); id. § 1508.3
App. 14
v. Sierra Club, 427 U.S. 390, 405-06, 96 S.Ct. 2718, 2728,
49 L.Ed.2d 576 (1976) (quoting Aberdeen & Rockfish R.
Co. v. SCRAP, 422 U.S. 289, 320, 95 S.Ct. 2336, 2356,
45 L.Ed.2d 191 (1975)). The “proposal” requirement, then,
is a statutory requirement grounded in the language of Section
102(2)(C) of NEPA that governs the time when an EIS
should be prepared. In essence, the appellees can prevail
only if there has been a report or recommendation on a
proposal for “major Federal action” with respect to MoPac
South and Segment 3 as part of a possible future Austin
Outer Loop. In concluding that the Austin Outer Loop isa
"proposal" for “major Federal action,” the district court
incorrectly elevated FHWA's early coordination process to
the status of a “proposal” under NEPA.
Our scrutiny of the record shows that neither MoPac
South nor any segment of the Austin Outer Loop, including
Segment 3, has yet acquired the status of a formal proposal
requiring federal approval. The district court placed much
emphasis on the state’s preliminary planning steps taken on
the two projects, particularly the state’s eariy compliance with
the eligibility requirements for federal funding for MoPac
South and Segment 3.
Initially, the TDH explored the possibility of making
MoPac South eligible for § 105 Program federal-aid funding.
Accordingly, the TDH submitted an environmental
assessment ("EA")!! for MoPac South to the FHWA’s
Division Office in Austin. The TDH’s submission
determined that MoPac South, if federal funds were sought,
(“affecting”); id. § 1508.14 (“human environment”).
11 An environmental assessment is a brief public document
that, inter alia, provides “sufficient evidence and analysis for
determining whether to prepare an environmental impact statement or
a finding of no significant impact.” 40 C.F.R. § 1508.9(a)(1).
App. 15
ll
would warrant the preparation of a NEPA EIS. However,
the FHWA never committed nor reimbursed any funds for
the planning, design, right-of-way acquisition, or construction
of MoPac South. Additionally, in September 1988, the
FHWA informed TDH that MoPac South was ineligible for
federal funding because it was not then on any federal aid
system. In essence, though the TDH originally contemplated
potential federal involvement, nothing ever came to fruition.
The TDH planned the location and design of MoPac South
without FHWA overview or approval. Although there was
some preliminary consideration during the early
developmental stage of an application for federal funds, the
project became purely a function of the state.
With regard to Segment 3, the TDH prepared an
overview environmental assessment ("OEA") for the Austin
Outer Loop, stating the history of the project, the need for it,
and potential alternatives to the project. The OEA also
established that the Austin Outer Loop would be divided into
four segments for planning and development purposes.
Intending to preserve federal aid eligibility for the Austin
Outer Loop segments, the TDH submitted the OEA to the
FHWA in 1986 for early NEPA coordination analysis. The
FHWA approved the OEA in January 1987. The FHWA
subsequently announced that the Austin Outer Loop would be
segmented into multiple segments for the purposes of design,
planning, environmental review, and construction approval.
52 Fed.Reg. 32,090 (Aug. 25, 1987).
Since the August 1987 Federal Register segmentation
announcement, the Austin Outer Loop has undergone two
re-segmentations. In September 1987, TDH approved a
re-segmentation of the original Segment 3 into 3A and 3B,
and subsequently informed the FHWA of its actions.
Expressing concern about the proposed re-segmentation, the
FHWA continued collaborating with the TDH to make the
segments meet the requirements to maintain federal funding
App. 16
eligibility.
Ultimately, the TDH concurred with the FHWA’s
suggestion to divide the Austin Outer Loop into five
segments, each ending at major radial roadways. This
proffered segmentation is the current division of the proposed
Austin Outer Loop. In essence, the only control FHWA has
exercised to date over the Austin Outer Loop is the
suggestion of its re-segmentation in order for TDH to retain
eligibility for federal aid funds. Segment 3 is just one of
many state projects that has federal assistance at an
exploratory stage and then is completed wholly through state
funding.
Upon reviewing the record, particularly the evidence
found persuasive by the district court,!? we find that none of
the early coordination activities by the state with the federal
government constitute the requisite “major Federal action.”
The crux of the district court’s opinion was a determination
that the Austin Outer Loop is a " ‘proposal for major
[Flederal action.’ " Having made that assessment, it rather
cursorily concluded that Segment 3 is an integral part ofa
federal project, as is MoPac South, since it was planned for
construction as part of Segment 3.
Because of the district court’s complete reliance on the
12 The appellees were also Significantly influenced by the
state’s early coordination actions. They attempted to contest the
“proposal” notion by simply stating that the Austin Outer Loop project
had "reached a very highly defined level prior to suit.” According to
the appellees, the project was sufficiently defined to support the
FHWA's “very public announcement of NEPA environmental impact
statements”; it was sufficiently defined to support FHWA approval of a
NEPA environmental assessment; and finally, by the time of tnal,
NEPA EISS were being drafted for all segments except Segment 3. Of
course, the preliminary drafting of an EIS is a step far removed from
federal approval, and indeed may be used by the state to make its own
environmental evaluation.
App. 17
Austin Outer Loop as a “major Federal action," some further
evaluation of the status of the Austin Outer Loop is
necessary. Major construction projects, like the Austin Outer
Loop, customarily change in design, cost, scope, and impact
over the years required for development. The segments of
the Austin Outer Loop are planned to be constructed at
different times in the future over a period of many years.
Furthermore, the financing, specific location, and construction
timing of other segments are subject to change. More
important, some segments of the Austin Outer Loop may
never be built. In essence, the construction of an outer loop
around Austin is, at most, a contempiated action, which at
this point exists only as a concept in a long range plan that is
subject to constant revision. The record is silent with regard
to any meaningful federal participation or cotrol exercised
over the project in this case. There has been no federal
commitment and only minimal federal intervention.
Since the FHWA has at this time given no
approvals--whether it be approval of a final EIS, approval of
design, approval of location, or approval of funding--there
has been no “major Federal action" in connection with any
segment of the Austin Outer Loop. The "federal
imprimatur” that sometimes attaches to state projects is simply
not present in this case. Hawthorn Envtl. Preservation
Assoc. v. Coleman, 417 F.Supp. 1091 (N.D.Ga.1976), aff'd
per curiam, 551 F.2d 1055, 1056 (Sth Cir.1977). A state
may, after all, proceed with construction of its projects
wholly independently of the federal government.
Our holding today is consistent with other recent
precedent. In Macht v. Skinner, 916 F.2d 13, 16 (footnote
omitted) (D.C.Cir. 1990), the Court held that while the Urban
Mass Transportation Administration ("UMTA") had given
Maryland $2.5 million for preliminary engineering studies
and environmental impact statements for the proposed
extensions to the Light Rail Project, and while Maryland had
App. 18
to obtain an Army Corps of Engineers permit, these facts
were insufficient "to transform the entirely state-funded Light
Rai! Project into ’major [FJederal action’ affecting the
environment within the meaning of NEPA." Furthermore,
the Court was unpersuaded by the contention that the project
constituted “major Federal action" because Maryland had
hoped to obtain a $40 million UMTA grant to build
extensions to the state project sometime in the future.
According to the Court, "in this era of federal fiscal
shortcomings there is a wide gulf between what a state may
want and what the federal government is willing to provide."
Id. at 17 (citing district court memorandum opinion). The
D.C. Circuit Court rejected requiring NEPA environmental
consideration at a far higher threshold of federal activity than
is present in the case before us.
The Tenth Circuit made a similar determination in
Village of Los Ranchos de Albuquerque v. Barnhart, 906
F.2d 1477 (10th Cir. 1990), cert. denied, --- U.S. ----, 11]
S.Ct. 1017, 112 L.Ed.2d 1099 (1991). Faced with a
state-planned highway bridge project which had retained
eligibility for federal funding, the Court rejected the
contention that the FHWA’s assistance in, and approval of,
the EIS was sufficient to make the bridge project a "major
Federal action” within the purview of NEPA. Further, and
relevant to our case, the Court asserted:
Congress has not applied NEPA to all
highways that the states are eligible to fund
with federal dollars.... The State’s option to
use federal dollars, though open virtually until
the concrete is poured, is nonetheless an
option, and the State’s choice should not be
restricted simply because one alternative option
(using state dollars) might result in less
adequate assessment of environmental
App. 19
considerations. If the highway is not a federal
action, then a state’s decision to avoid federal
involvement cannot have the paradoxical effect
of establishing federal involvement.
906 F.2d at 1481 (quoting Citizens for Balanced Env’t &
Transp., Inc. v. Volpe, 376 F.Supp. 806, 812-13
(D.Conn.), aff'd, 503 F.2d 601 (2d Cir. 1974), cert. denied,
423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100 (1975)
(emphasis in original)). Here again the Court found that a
much higher level of federal commitment and involvement
than that present in the case before us (an EIS having been
prepared and approved) as insufficient to constitute "major
Federal action."
The appellees assert that the mechanistic approach to
"federal" status advocated by the appellants, the FHWA, the
TDH, and the Corporation, would make NEPA a "dead letter
law for highway projects." We disagree. To the contrary,
the appellants are merely adhering to the law and are
recognizing that Congress limited the EIS requirement to
"major Federal actions." “Although desperate environmental
plaintiffs have attempted to convert NEPA into a national land
use Statute, Congress did not intend section 102(2)(C) to
apply to actions undertaken by state, local, or private
concerns without any federal participation or approval."
McGarity, The Courts, the Agencies, and NEPA Threshold
Issues, 5S Tex.L.Rev. 801, 837 (1977) (footnote omitted).
See also Movement Against Destruction v. Volpe, 361
F.Supp. 1360, 1383 (D.Md.1973), aff'd, 500 F.2d 29 (4th
Cir. 1974) ("Despite the breadth of the NEPA, its application
is only to the decision making processes of the Federal
government.”) (citation omitted).
In sum, the error of the district court lies in
concluding that these two highway projects are an integral
part of an Austin Outer Loop. The outer loop does not exist
App. 20
except in speculative plans for years ahead. The federal
authorities as well as state authorities recognize this. The
undisputed facts are that Segment 3 and MoPac South have
been financed with non-federal funds and have been designed
and built without federal approval and authorization. We hold
that these projects do not constitute nor are they are part of
any project constituting "major Federal action” within the
contemplation of 42 U.S.C. § 4332(2)(C).
C. Segmentation
We have recognized that the proposed Austin Outer
Loop as yet has not even achieved a nascent state. Both
federal and state governments agree that this is not a highway
plan for an outer loop which can at the present time be
classified as a "major Federal action” and also be eligible for
federal aid. There remains the assertion that the state has
chosen the most environmentally sensitive segment of this
highly tentative plan for immediate construction without
federal aid for the purpose of avoiding NEPA. While the
district court hinted at this possibility, it did not so hoid and
did not make findings that would support it. !3
The case law which deals with such improper
segmentation almost always involves a situation where a
“major Federal action” is found to exist and then the
segmentation is evaluated as an escape from the NEPA
13 Without specifically accusing the state of covert or
surreptitious actions, the district court stated that TDH’s “intentions
regarding Segment 3 may have been on the ‘up and up’: however, the
evidence does not reveal any measurable good will on the State's
part.” Perhaps the district court by this wording was trying to avoid a
harsh statement of criticism of the state officials. But the fact must be
faced that the lack of proof of “measurabie good will” has no legal
significance. The record reveals no proof of ill-will or impropriety.
App. 21
——
application which is otherwise immediate.!4 See, e.g., Macht
v. Skinner, 916 F.2d 13, 16 n. 4 (D.C.Cir. 1990) ("Because
we hold that the Light Rail Project does not involve *major
[F]ederal action,’ we do not decide whether the district court
correctly held that Maryland’s segmentation of the Project
was proper."). Segmentation cases consider only whether a
federal project has been improperly segmented to avoid
compliance with NEPA. See, e.g., iti
i
Transp., Inc. v. Dole, 826 F.2d 60 (D.C.Cir. 1987); Swain
v. Brinegar, 542 F.2d 364 (7th Cir.1976) (en banc); Indian
Lookout Alliance v. Volpe, 484.
The possibility does exist, however, that a state could
improperly segment out critical portions of a proposed project
before the project was developed to the stage of becoming a
“major Federal action." By this means, a state could
circumvent those segmentation actions which would be found
to be illegal if the project were developed to the “major
Federal action" stage. Segmentation analysis functions "to
weed Out projects which are pretextually segmented, and for
which there is no independent reason to exist. When the
segmentation project has no independent jurisdiction, no life
of its own, or is simply illogical when viewed in isolation, the
segmentation will be held invalid.” Macht v. Skinner, 715
F.Supp. 1131, 1135 (D.D.C.1989) (emphasis in original),
aff'd, 889 F.2d 291 (D.C.Cir. 1989) (Table). Further, in
Village of Los Ranchos de Albuquerque, the Tenth Circuit
distinguished its case from a case in which local defendants
14 Short of a completely exhaustive search, we found only
two cases in which there was an evaluation of segmentation without a
finding of “mayor Federal action.” See Village of Los Ranchos de
Albuquerque v. Barnhart, 906 F.2d 1477 (10th Cir.1990); Macht v.
Skinner, 715 F.Supp. 1131 (D.D.C.1989), aff'd, 889 F.2d 291
(D.C.Cir. 1989) (Table) (an earlier decision in a related case to the case
referred to in the immediately following text).
App. 22
were involved “in a sham transaction to evade federal
environmental requirements." Id. at 1482. We consider
whether such a subterfuge by the state occurred.
In making its determinations, the district court relied
heavily on Hawthor Environmental Preservation Association
v. Coleman, 417 F.Supp. 1091 (N.D.Ga. 1976), aff'd per
curiam, 551 F.2d 1055 (Sth Cir.1977) and Named Individual
mber i n iety Vv
Highway Department, 446 F.2d 1013 (Sth Cir.1971), cert.
denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136
(1972) (hereinafter San Antonio I ). This reliance was
pivotal. The district court may have felt compelled to find a
probability of “major Federal action," so as to curtail the
result of what it perceived as a “naturally suspect”
motive--the segmentation of the Austin Outer Loop at the
portion which traverses the Edward's Aquifer. The trial
court’s inexorably intertwined analysis of “major Federal
action” and segmentation requires this Court to address the
issue of segmentation even though there is strong case
authority that segmentation does not become an issue until
"major Federal action™ is established.
“Segmentation” or “piecemealing" is an attempt by an
agency to divide artificially a “major Federal action" into
smaller components to escape the application of NEPA to
some of its segments. This claim is a major part of the
charge made by plaintiffs in this case. “Asa general rule
under NEPA, segmentation of highway projects is improper
for purposes of preparing environmental impact statements. “
Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d
430, 439 (Sth Cir. Unit B 1981). Segmentation becomes
suspect, however, only after an evaluation of such factors as
whether the proposed segment (1) has logical termini, (2)
has substantial independent utility; (3) does not foreclose the
opportunity to consider alternatives; and (4) does not
irretrievably commit federal funds for closely related
App. 23
projects.!5 See, e.g., Piedmont Heights, 637 F.2d at 439;
San Antonio I, 446 F.2d at 1024-26. In the context of a
highway within a single metropolitan area, as the case at
issue--as Opposed to projects joining cities--courts have
focused more on the factor of “independent utility." See,
lition on Sensible Transp., 826 F.2d at 69;
Piedmont Heights, 637 F.2d at 440. Consequently, our
analysis, while assigning the other factors their modest
weight, will focus primarily on the “independent utility"
factor. See, Association Concerned About Tomorrow, Inc.
v. Dole, 610 F.Supp. 1101, 1108 (N.D.Tex.1985) ("the
illogic of a terminus is at best a secondary inquiry, shadowed
by the independent utility inquiry") (citation omitted).
With these considerations in mind, we address
Hawthorn and San Antonio I. Contrary to the district court’s
determination, we find that these cases posit significant and
controlling differences with our present case.
In Hawthorn, the construction of a bypass of the City
15 These factors are embodied in the FHWA's NEPA
implementation regulations.
(f) In order to ensure meaningful evaluation of alternatives and
to avoid commitments to transportation improvements before
they are fully evaluated, the action evaluated in each EIS or
finding of no significant impact (FONSI) shall:
(1) Connect logical termini and be of sufficient length to
address environmental matters on a broad scope;
(2) Have independent utility or independent significance ...;
and
(3) Not restrict consideration of alternatives for other
reasonably foreseeable transportation improvements.
23 C.F.R. § 771. 111¢f) (1991). Of course, absent a finding of “major
Federal action,” these cnteria do not apply. They apply only “to
actions where [FHWA] exercises sufficient control to condition the
permit or project approval. Actions taken by the applicant which do
not require Federal approvals ... are not subject to this regulation.” Id.
at 771.109(a)(1).
App. 24
7
of Newnan, Georgia, was at issue. To perform its intended
function, the entire bypass had to be constructed. The bypass
had been conceived as one project and its two segments,
Phase I and Phase II, were proposed to be constructed
simultaneously. It was also clear that absent the construction
of Phase II, the segment proposed for federal funding, Phase
I, the state funded segment, would not be constructed because
it could not be utilized. The court, acknowledging the
“sufficiently great prospects" of Phase II becoming "major
Federal action,’ " focused on the question of segmentation.
417 F.Supp. at 1101. It found that absent any persuasive
evidence of independent utility, "the defendants had violated
the mandates of federal environmental law and policy by
failing to conduct proper studies concerning the construction
of [Phase I] of the Newnan Bypass." Id. The court
properly held that Phase I was merely a segment of an overall
project, consisting of both Phase I and Phase II, and the
provisions of NEPA were applicable.
In contrast, the segments of the Austin Outer Loop
are planned to be constructed if at all at different times in the
future over a period of years. It is not one continuous project
as anticipated in Hawthorn. Further, our review of the
record indicates that unlike the state-funded segment of the
Hawthorn bypass, the partially constructed segment of the
Austin Outer Loop, Segment 3, as well as MoPac South, will
have substantial independent utility. Together, they will serve
a highly useful urban traffic purpose even if no other
segments of the Outer Loop are ever constructed.
San Antonio is also readily distinguishable on its facts
from this case. There, the Secretary of Transportation had
approved Texas’ request for federal participation,
authorization, and financiai assistance in a highway project
which was to cross San Antonio’s Brackenridge Park. The
project was challenged for failure to comply with Section 4(f)
of the Department of Transportation Act, which generally
App. 25
————
prohibits, inter alia, the use of federal funds to build
highways through parks of local significance.!6 The state
then decided to divide the project into three segments. The
federal government would be asked to fund the two end
segments, and the state would fund the middle segment that
would actually cross the park. This Court found that the
State had impermissibly segmented a highway project running
through park lands in order to evade federal environmental
regulations. It was deemed significant that segments of the
highway on both sides of the park were to be constructed
with federal funds, and none of the three segments had logical
termini or independent utility. In clear contrast, both the
segment of the Austin Outer Loop as well as MoPac South
fully comport with both case law and FHWA’s regulations
requiring that segments have independent utility, connect with
logical termini, and do not foreclose the opportunity to
consider alternatives. !7
16 Section 4(f), formerly at 49 U.S.C. § 1653(f), was repealed
in 1983 when it was codified without substantive change as 49 U.S.C. §
303. See also 23 U.S.C. § 138. The policies section 4(f) engendered,
however, are still widely referred to as “section 4(f) matters.” See,
e.g., 23 C.F.R. Part 771 (1991).
1? The Austin Outer Loop is more closely analogous to the
3-A system of interstate and primary highways in the City of Baltimore
which was the subject of litigation in Movement Against Destruction v.
Volpe, 361 F.Supp. 1360 (D.Md. 1973) (per curiam), aff'd per curiam,
500 F.2d 29 (4th Cir.1974). There, the plaintiffs challenged the
FHWA’s failure to prepare an EIS prior to its approval of the system
plan for interconnected and interdependent highways. The court
recognized that each component of the 3-A system served different
functions and provided a useful facility even if the others were not
constructed. It held that there was “no ‘major [F]ederal action’ which
treated the 3-A system as a unit, and, therefore, under the plain
language of the NEPA no EIS [was] required for the "3-A system’ as a
whole.” Id. at 1383. See also Association Concerned About
App. 26
None of the segments of the proposed Austin Outer
Loop are scheduled for simultaneous or continuous
construction as anticipated in Hawthorm and San Antonio I.
The appellees have offered no evidence that any segment of
the Austin Outer Loop is dependent on any other segment for
its utility. The proper question is whether the Segment 3
project serves a significant purpose even if the other related
projects, the other segments, are not built for a long time or
perhaps not at all. See, Coalition on Sensible Transp. Inc. Vv.
Dole, 826 F.2d 60, 69 (D.C.Cir. 1987) (highway and
interchange projects serve necessary purposes in absence of
1-270 expansion and are sufficiently independent); Taxpayers
Watchdog, Inc. v. Stanley, 819 F.2d 294, 299
(D.C.Cir. 1987) (per curiam) (substantial independent utility
recognized in a four-mile section of mass transit project
originally planned as 18.6 miles); Piedmont Heights, 637
F.2d at 440-41 (urban highway projects, although related to
overall transportation plan, held to contribute individually to
improving traffic conditions).
The contentions of the federal and state officials are
sound. Segment 3 satisfies the FHWA’s standards for
proper segmentation. Segment 3 meets the significant
criterion of independent utility. It increases the utility of the
existing roadway network by providing effective access
between two major radial highways. Segment 3 also will
serve local needs. It will provide improved access to
business and residential developments and to community and
recreational features which will be accessible by intersecting
roads. Furthermore, it will relieve traffic on arterial and city
Tomorrow, Inc. v. Dole, 610 F.Supp. 1101 (N.D.Tex. 1985) (finding that
the segmentation of Loop 9 around Dallas County into segments or
“legs” was an appropriate decision for the purposes of planning and
development, including NEPA analysis; the legs of Loop were not
proposed for contemporaneous construction and had significant
independent utility).
App. 27
streets. Segment 3 also satisfies the logical termini
requirement. Its termini are located at nodes of commercial
and traffic activity; they were chosen based on population
and usage forecasts. Moreover, Segment 3 does not restrict
consideration of alternatives. The construction of Segment 3
does not dictate that any other segment must be built, nor
does it dictate the size of a segment if built, nor control the
alignment of the rest of the Austin Outer Loop.
The appellees contend that the end points of Segment 3
drastically limit “the reasonable alternatives” for the end
points of Segments 2 and 4. An answer to this contention is
that Segment 3 is a state project to which the requirements of
federal regulations do not apply. Assuming the regulations
applied, however, Segment 3 would nonetheless comply with
them. Segments 2 and 4 may never be built; neither segment
is shown to be required to connect with Segment 3 in order
to be functional. Even if Segments 2 and 4 were ultimately to
connect with Segment 3, alternatives available for their
location are many; the regulations require no more.
With regard to MoPac South, the district court ruled
that it must comply with NEPA because it "is an extension of
a federal project (MoPac), a connection of three federal
projects (MoPac, U.S. 290, and the Austin Outer Loop), and
it lacks substantial independent utility." But this ruling when
placed in its context would mean that every time a state or
local government desires to build a non-federal aid highway
project (MoPac South) that connects to existing federal
highways (MoPac and U.S. 290), the project would be
subject to NEPA because it would be “dependent” on the
federal facilities. This extrapolation is attenuated at best. All
proposed highways, when constructed, must eventually
connect to an existing highway. Every roadway section that
is added to a highway network is dependent upon and
connected to the rest of the network. See, Named Individual
Members of San Antonio Conservation "y Vv. Texa
App. 28
ee
Highway Dep’t, 496 F.2d 1017, 1024 (Sth Cir. 1974), cert.
denied, 420 U.S. 926, 95 S.Ct. 1123, 43 L.Ed.2d 396
(1975) (hereinafter San Antonio (11) ) ("virtually every road
in the country crosses or interchanges with federal-aid
highways, and ... there are many state-constructed roads
which do not form a part of the federal network"). See also
Village of Los Ranchos de Albuquerque, 906 F.2d at 1483
("’Congress has not purported to apply NEPA requirements
to [e]very highway that connects with a federally-funded
highway’ ") (quoting Citizens for Balan Env’t & Transp.
Inc. v. Volpe, 376 F.Supp. 806, 810 (D.Conn.), aff'd, 503
F.2d 601 (2d Cir. 1974), cert. denied, 423 U.S. 870, 96
S.Ct. 135, 46 L.Ed.2d 100 (1975)).
Ample evidence establishes that the MoPac and U.S.
290 highways have served a useful transportation function for
years without the aid of MoPac South. These roads then
cannot be the basis for a “lack of independent utility” finding
in connection with MoPac South. MoPac South has utility
independent from the Austin Outer Loop as well as Segment
3, and has a significant purpose even if the other projects are
never built. Currently, as planned, MoPac South will be a
limited access roadway, unlike any north-south roadway in
southwest Travis county.
One of MoPac South’s significant functions would be
achieved regardless of the existence of Segment 3 as its
southern terminus. MoPac South will serve local needs by
improving the access for Austin residents to such community
uses as retail establishments, places of worship, as well as
cultural and recreational areas. The logical termini
requirement is also satisfied. The north terminus of MoPac
South is located at an intersection with U.S. 290, a major
east-west highway, and connects with the existing MoPac, a
major north-south highway, thus improving the efficiency of
all three roadways. Moreover, MoPac South does not
foreclose consideration of alternatives. For instance, to
App. 29
——7oO ° °°
appease the concern that MoPac South restricts alternatives
because its southern-most point determines the alignment of
Segment 3, the state designated Hannon Lane as the
alternative southern terminus should Segment 3 not be built.
We have addressed the central question in the
chaiienge of improper segmentation--whether Segment 3 and
MoPac South serve significant purposes and have the
requisite independent utility. The record clearly indicates that
the two projects serve such purposes and are sufficiently
independent even in the absence of MoPac, U.S. 290, and the
Austin Outer Loop. This Court finds that both Segment 3
and MoPac South would meet the elements enumerated in
Piedmont Heights to fall outside of NEPA’s purview.
Finally, we feel compelled to address the district
court’s continuous reference to potentially suspect behavior
on the part of the state.'!8 The federal and state officials to
the contrary rely primarily on Bennett v. Taylor, 505
F.Supp. 800, 810 n. 4 (M.D.La.1980), stating that, in
NEPA suits, “motives of the state authorities are by and large
irrelevant to this inquiry since the law applies to those
projects specified by the Congress without regard to intent of
either state or federal authorities.” But the appellees in
supporting the court’s judgment place much reliance on
Environmental Defense Fund v. Marsh, 651 F.2d 983, 999
n. 19 (Sth Cir. Unit A 1981) to show the relevance of motive
in an improper segmentation case. In Marsh, we stated that
we believed Kleppe allows courts "to prohibit segmentation
. if an agency has egregiously or arbitrarily violated the
18 “Comments by the district court included: “TDH’s motive
for segmenting the portion of the [Austin Outer Loop] which traverses
the area most environmentally sensitive is naturally suspect,” and
“TDH’s intentions regarding Segment 3 may have been on the ‘up and
up’; however, the evidence does not reveal any measurable zood will
on the State's part."
App. 30
underlying purpose of NEPA." This principle is sound but
it does not control this case.
In addressing the issue of motivation, we draw
guidance from Macht v. Skinner, 715 F.Supp. 1131, 1135
(D.D.C.), aff'd, 889 F.2d 291 (D.C.Cir. 1989) (Table).
There, the district court suggested that the segmentation
analysis advocated by Piedmont and its progeny has the effect
of replacing “a subjective analysis of motivation with a set of
objective criteria." Thus, “states are entitled to invoke the
segmentation doctrine to insulate their construction projects
from federal environmental law, so long as they meet the
objective criteria of compliance. " According to the court,
"this is a legitimate choice for the State to make, and ...
requiring [the State] to comply with NEPA simply because it
has tried to plan its project so as to avoid federal law would
be an unfair surprise.” Id. (emphasis in original). See also
Citizens for Balanced Environ. & Transp., Inc. v. Volpe,
376 F.Supp. 806, 813 (D.Conn.), aff'd, 503 F.2d 601 (2d
Cir.1974), cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46
L.Ed.2d 100 (1975), in which the court said: "(T]he State’s
choice should not be restricted simply because one alternative
of the option (using state dollars) might result in less adequate
assessment of environmental considerations. If the highway
is not a federal action, then a state’s decision to avoid federal
involvement cannot have the paradoxical effect of establishing
federal involvement."
We recognize that if a state has segmented-for the
purpose of evading federal environmental requirements and
without other valid justifications, a holding of evasive
violation would be justified. This Court does not “condone
any form of subterfuge." San Antonio I, 446 F.2d at 1029
(Clark, J., concurring in part and dissenting in part). We
have no such case here, and the district court made no
findings leading to such a conclusion. Our review of the
record reveals no improper segmentation. In this case, the
App. 31
—————E———
state entertained various options for Segment 3 and MoPac
South and concluded that the use of state funds would enable
it to proceed without the delays and expenses associated with
compliance with federal environmental law.!9 There is
nothing in the federal law to compel a state to ask for federal
highway aid because there are environmental concerns.
States are capable of dealing with environmental matters.
Often overlooked is the limited scope of the federal legislation
which recognizes this. We find no improper segmentation of
a large highway project in this case.
III. CONCLUSION
Early coordination or compliance with the eligibility
requirements for federal funding alone does not constitute a
"proposal" for “major Federal action." Where the actions at
issue have been taken by the state authorities without
substantive federal supervision, authorization, commitment, or
control, and will never be subject to review or approval by a
federal agency, there can be no finding of “major Federal
action” within the meaning of NEPA. With no control, mght
to control, or even the prerogative to suggest compliance with
federal standards by FHWA, we find that the projects at issue
are state projects. Both the state and federal governments
agree. In this case, the state did not voluntarily submit itself
19° The evidence most relied upon by appellants in
undertaking to establish improper motive in segmentation includes a
portion from the Corporation's Technical Brief to the TDH and a letter
from the Corporation's primary developer to an earlier TDH
Chairman. In each instance appellees omitted following languaye that
revealed clear concern by the TDH as to environmental matters and
statements that the state planned its own environmental evaluations.
The statement also indicated a need for expedited action and avoidance
of long drawn-out federal proceedings--a valid state concern. See
Macht v. Skinner, 715 F.Supp. at 1135.
App. 32
_
to federal law. Further, there is no showing that the state
segmented a larger project for the purposes of circumventing
the application of federal law.
We reverse the judgment of the trial court and rule
that both Segment 3 of the proposed Austin Outer Loop and
MoPac South are state projects not subject to the
requirements of NEPA.
REVERSED.
INJUNCTION DISSOLVED.
App. 33
App. 34
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
(March 6, 1990 - unpublished)
Civil Action A-89-CA-719
SAVE BARTON CREEK ASSOCIATION, WE CARE
AUSTIN and AUSTIN CROSSROADS,
Plaintiffs,
We
FEDERAL HIGHWAY ADMINISTRATION (FHWA) and
TEXAS STATE DEPARTMENT OF HIGHWAYS AND
PUBLIC TRANSPORTATION,
Defendants,
and
MOPAC SOUTH TRANSPORTATION CORPORATION,
Intervenor.
App. 35
MEMORAN PINION AN RDER
On the 7th-9th days of February, 1990, this case came
on for trial before the Court without a jury. In accordance
with the testimony and evidence presented and upon
consideration of argument of counsel, the Court enters the
following findings of fact and conclusions of law.
This is an action for declaratory and injunctive relief
relating to the proposed construction of two highways--
MoPac South and the Austin Outer Loop. MoPac South is a
5.5 mile freeway extension of an existing freeway, MoPac, in
Austin, Texas. The Austin Outer Loop is an 84 mile
circumferential freeway surrounding the City of Austin.
Portions of both of these highways overlie the Edwards
Aquifer, a sole source drinking water aquifer in southern
Travis and northern Hays Counties, southwest of Austin.
See Appendix "A." Plaintiffs, three non-profit corporations,
allege that both highways have “synergistic environmental
impacts” that require the highways to be the subject of an
environmental impact statement ("EIS") pursuant to the
National Environmental Policy Act of 1969 ("NEPA), 42
U.S.C. §§ 4321 et seq. Plaintiffs allege that the Texas State
Department of Highways and Public Transportation
("SDHPT") and the MoPac South Transportation
Corporation ("Corporation") are acting to frustrate federal
ervironmental law by characterizing the most environmentally
sensitive segments of these highway projects as state projects
exempt from NEPA. Additionally, Plaintiffs allege Defendant
Federal Highway Administration ("FHWA") is in violation of
NEPA for allowing continued federal participation in
construction of MoPac and in planning for construction of the
Austin Outer Loop. Plaintiffs further allege FHWA allowed
the unlawful segmentation for purposes of environmental
review of a single federal action, the Austin Outer Loop.
Plaintiffs believe that the Defendants’ failure to prepare an
App. 36
EIS pursuant to NEPA will result in irreversible
contamination of the aquifer causing a significant hazard to
public health.
I. Factual Background
Planning for a roadway known as MoPac Boulevard
began in the 1940's. The City Planning Commission of
Austin, Texas prepare a transportation report in 1944 which
reflected the use of the Missouri Pacific Railroad right of way
for a thoroughfare. That thoroughfare, which runs north to
south west of downtown Austin, approximates the existing
location of MoPac Boulevard also designated as Loop |. The
concept of the MoPac roadway was developed over the next
thirty years, and by 1966, U.S. 290 was planned to be the
southern terminus of the highway. Extending MoPac beyond
U.S. 290, where MoPac South is now being constructed,
was not considered during that planning process. The
existing MoPac is a highway 16 miles in length extending
from FM 1325 north of Austin to U.S. 290 south of Austin.
This portion of MoPac Boulevard has been operational over
the entire 16-mile length for more than three years.
MoPac South was conceived as a major radial
roadway serving southwest Austin south of U.S. 290 in the
early 1980's. On January 11, 1984, the Austin City Council
approved the MoPac South segment from U.S. 290 toa
roadway planned for south Travis County. Subsequent to
this approval, the planning and development of the MoPac
South project began. MoPac South is planned to be an
approximately 5.5 mile highway segment extending from the
interchange of MoPac and U.S. 290 south to an interchange
with proposed State Highway 45, the Austin Outer Loop.
The Austin Outer Loop is to be a major highway
approximately 84 miles in length encircling Austin which was
also conceived in the early 1980's. This highway has been
App. 37
divided into five segments. The segment which is to be built
in the southwest corridor of the Austin Outer Loop has been
designated by SDHPT as Segment 3. See Appendix "B."
Segment 3 is the portion of the outer loop which will intersect
with the southern terminus MoPac South.
Both of these highways, MoPac South and Segment 3,
traverse the Austin-area Edwards Aquifer. The Edwards
Aquifer is a "major aquifer” in the state of Texas which
covers approximately 4,350 square miles including a portion
of south Travis County and Austin, Texas.! The Edwards
Aquifer produces water from several layers of highly
permeable and porous honey-combed rocks, known as
"karst." Due to the extremely high permeability of these
layers of rocks, wells pumping from this aquifer are among
the most prolific in the world.2 “Recharge” or addition of
water to this aquifer primarily occurs by downward
percolation of surface water from rivers and streams crossing
the aquifer through crevices and faults in the underlying
formations and secondarily by direct infiltration of
precipitation on the outcrop of the karst.3 Waters move
regionally from ihese recharge areas to discharge at wells and
naturally at numerous small and large springs. One such
spring which.this aquifer feeds is the "Barton Springs Pool"
1 Ground Water Quality of Texas--An Overview of Natural
and Man-Affected Conditions, March 1989, Report 89-01, Texas Water
Commission at 29. A major aquifer is defined as one which yields
large quantities of useable quality water in a comparatively large area
of -the-state. “Approximately 96 percent of the ground water used in
Texas in 1984 was produced from the major aquifers. Id.; see
Appendix “A”.
2 Id. at 43.
3 Id. -
App. 38
———«
in Austin. Barton Springs is a natural wonder of great
symbolic, recreational and econom ic value to Austinites.
Plaintiffs assert six claims for relief from the FHWA
and the SDHPT in their Complaint. Plaintiffs’ claims allege
that Defendant FHWA is in violation of NEPA and the
Federal-Aid Highways Act, 23 U.S.C. §§ 101, et seq.
Plaintiffs request a declaration that the Austin Outer
Loop and MoPac South have environmental impacts requiring
the preparation of a single NEPA EIS. Plaintiffs also seek
an injunction barring any construction on or additional nght-
cf-way acquisition for the Austin Outer Loop, or in the
alternative for Segment 3, and MoPac South pending FHWA
approval of a NEPA EIS.
Defendants deny the application of federal law to these
two roadways which they claim are interdependent. They
deny that they have arbitrarily divided the outer loop into
segments to avoid federal environmental review. Both
projects are asserted to be state funded projects which have
been developed in accordance with all state and federal laws
governing state projects. Because these projects are state
funded, the Defendants claim they are not “federal actions"
subject to NEPA. As an affirmative defense, Defendants
claim Plaintiffs’ suit is barred by laches.
Il. Applicability of NEPA
The merits of Plaintiffs’ relief turn on the question of
the applicability of the following portions of NEPA:
[T]o the fullest extent possible ...
(2) all agencies of the Federal Government
shall-- . . . (C) include in every
recommendation or report on proposals for ...
major federal actionssignificantly affecting
the quality of the human environment, a
App. 39
detailed statement by the responsible official on-
-(i) the environmental impact of the proposed
action. ...
42. U.S.C. §4332 (1977) (emphasis added). This provision
is expressly applicable to federal agencies, including the
FHWA; and, pursuant to judicial interpretation, the provision
is equally applicable to the construction of state highways
when such construction involves “major federal action" which
has a “significant affect" on the environment. Hawthorn
Environmental Preservation Association, et al v. Coleman,
417 F.Supp. 1091, 1096 (N.D. Ga. 1976), aff'd per curiam,
551 F.2d 1055 (Sth Cir. 1977). “Action” is defined as “[a]
highway or transit project proposed for FHWA .. .
funding.” 23 C.F.R. § 771.107(b). “It also includes
activities such as joint and multiple use permits, changes in
access control, etc., which may or may not involve a
commitment of Federal funds." Id. “Major federal action"
includes actions with effects that may be major and which are
potentially subject to Federal control and responsibility." 40
C.F.R. § 1508.184
The fundamental purpose of NEPA is to compel
federal decision makers to consider the environmental
consequences of their actions. Atlanta Coalition on the
Transportation Crisis, Inc. v. Atlanta Regional Commission,
599 F.2d 1333, 1344 (Sth Cir. 1979). The thrust of section
102(2)(c) of NEPA quoted above is that environmental
concerns be integrated into the very process of agency
decision-making. Andrus, 442 U.S. at 350.
4 This regulation is one of the regulations issued by the
Council on Environmental Quality ("CEQ") to implement the
procedural provisions of NEPA. CEQ regulations are entitled to
“substantial deference.“ Andrus v. Sierra Club, 442 U.S. 347, 358
(1979).
App. 40
Both federal and state Defendants maintain that the
MoPac South and Segment 3 projects are neither federal-aid
highway projects nor “federal actions" under NEPA.
Because the Defendants consider both projects to be state
undertakings, the Defendants argue that no federal EIS is
needed. Therefore, the question which must be answered as
to both of the roadways, is whether the projects involve
"major federal action" as that term is applied under NEPA.
Each project will be considered separately.
A. Segment 3 of the Austin Outer Loop
On October 29, 1984, the Travis County
Commissioner’s Court passed a resolution requesting the
County of Travis, City of Austin and the SDHPT to act
through the Austin Transportation Study Advisory
Commission to consider the preliminary alignment and travel
demand for an 82-mile, limited-access outer parkway
encircling the city of Austin.s On March 21, 1985 a
delegation of local officials appeared before the State Highway
and Public Transportation Commission requesting
construction of an outer parkway around Austin. On May
22, 1985, the State Highway Commission issued a Minute
Order designating a state highway encompassing the City of
Austin. The commission agreed to proceed with project
planning of the highway including environmental reports.
The commission also stated that the "... Parkway [Austin
Outer Loop] will be developed in segments according to nes"
and available funding; [t]he segments developed by the
Department will be,financed with Federal-aid funds whenever
5 The William County Commissioners, the cities of Cedar
Park, Manor, and Pflugerville all passed similar resolutions in March
of 1985 endorsing the concept of a limited access parkway designed to
loop the Austin metropolitan area.
App. 41
possible. The outer loop became a major feature of the
Austin transportation plan in early 1986.7
As part of the planning process, SDHPT prepared an
“overview environmental assessment” of the outer loop and
submitted it to the FHWA in early 1987 for its approval.
The state indicated that a “draft environmental impact
Statement" was appropriate, and acknowledged that this.
project may be added to the “Federal Secondary System."8
Soon after SDHPT so informed FHWA, the FHWA
published a Notice of Intent in the Federal Register on August
25, 1987. This notice announced to the public that an EIS
would be prepared for each of four segments of a proposed
highway project in Hays, Travis and Williamson Counties,
Texas.? In this notice the FHWA states, "Federal funds will
be used to finance project construction in each of the
6 SDHPT Minute Order, No. 83158, May 22, 1985.
? The entity officially responsible for transportation planning
of the Austin area is the Austin Transportation Study Policy Advisory
Committee ("“ATSPAC") and is the entity that so designated the outer
loop. The ATSPAC is a !7-member committee, the composition of
which is determined by agreement of the SDHPT, the City of Austin
and Travis County. A majority of the committee is state senators,
representatives or employees. The chief executive officer of the
SDHPT district in which Austin is located is a member of the ATSPAC.
8 Letter dated January 14, 1987 from Frank Holzmann, Chiet
Engineer Highway Design, SDHPT, io John Conrado, Division
Admunistrator, FHWA.
9 Federal Register , Vol. 52, No. 164, Tuesday, August 25,
1987.
App. 42
segments. !0
On September 10, 1987, the SDHPT re-segmented
the outer loop, dividing Segment 3 into Segments 3A and 3B,
and at some point, SDHPT designated Segment 3A as a State-
funded project.!!1_ The SDHPT re-segmented the outer loop
several times and each time submitted the proposed
segmentation to the FHWA for review. The FHWA
expressed concern about the proposed segmentation by the
state, and the state continually attempted to propose segments
which would meet FHWA standards. As late as February
28. 1989, the FHWA was still working with the SDHPT to
make certain the segments met certain requirements to permit
the state to remain eligible for federal funds. At that time,
10 Id.; In October 1987, the FHWA was still representing to
the public that it was preparing federal environmental studies on the
outer parkway as illustrated by FHWA’s District Engineer, Gamaliel E.
Olvera’s, letter to the Travis Audubon Society. In that letter, Mr.
Olvera says, “As the lead Federal agency for the preparation of the
Environmental Impact Statements for the proposed Austin
Outerparkway [sic], we can assure you that Federal laws and
regulations rega7ding threatened and endangered species will be
followed.”
11 Segments 3A and 3B were eleven and fourteen mile
segments of the onginal Segment 3 which did not have terminus at any
roadway but simply connected to the remainder of the outer loop.
The Court finds no evidence of official action by SDHPT
designating Segment 3 as state funded; however it must have been so
designated sometime between October, 1987 and December, 1988.
john J. Conrado, Division Administrator for the FHWA, wrote to the
Barton Springs-Edwards Aquifer Conservation District (on December
21, 1988) thanking it for its concern, but since the SDHPT has chosen
not to use federal funding for Segment 3A, the FHWA refuses to
comment on the environmental consequences resulting from the design
of this segment.
App. 43
|
FHWA proposed that the project be divided into five
segments which would all end at major radial roadways, and
the SDHPT accepted this proposal. This segmentation is the
current division of the outer loop, and the only segment
planned for state funds is Segment 3. See Appendix "B".
During the years 1987, 1988 and 1989, SDHPT
planned and is planning to use federal funds to help build the
outer parkway.!2 The most recent status report, dated
September 23, 1989, reflects that each segment of the outer
loop, except Segment 3, 1s headed for some federal funding.
This status report also shows that the only segment under
construction is Segment 3. Construction on Segment 3 began
December 12 or 13, 1989.13
The SDHPT’s principal argument against the
applicability of NEPA to Segment 3 is that no federal funding
has been requested for any of the segments of the outer loop.
However, SDHPT concedes that the SDHPT is retaining
eligibility for federal aid funds.'4 SDHPT has contended
12 In each Transportation Improvement Program drafted by
the SDHPT for years 1987, 1988 and 1989 the Austin Outer Loop is
planned to be construed with funds to be supplied by the FHWA.
13 Segment 3 has been the first portion of the outer loop to go
to construction despite earlier planning of the SDHPT which pnoritized
Segment 4, first; Segment 1, second; and Segment 3, third in June 1986.
14 In addressing the Austin City Council on April 13, 1989,
SDHPT spokesperson, Roland Gamble said:
We are not passing up any federal funds. The
Highway Department does not operate on a grant
system. There are not funds designated for any
particular project. It’s as if you pour all those
projects in a funnel, and up at the top you have yot
more projects than will ever come out the bottom.
App. 44
throughout this litigation that federal funding is an absolute
prerequisite to federal action within the meaning of the
NEPA. However, as this Court has stated before, whether a
project is a major federal action does not turn entirely on the
question of funding.
The state may not disregard otherwise applicable
federal environmental requirements solely on the basis of the
funding question. Hawthorn, 417 F.Supp. at 1099. The
absence of federal funding will not excuse noncompliance
with NEPA requirements if the highway projects in issue are
found to be segments of an overall federal construction
project. Id. The state cannot subvert national environmental
policy by shifting federal funds from an authorized project to
avoid the ramifications of NEPA’s commands. Named
Individual Members of the San Antonio Conservation
Society, et al v. Texas Highway Department, 446 F.2d 1013,
1027 (Sth Cir. 1971), cert. denied, 701 U.S. 933 (1972).
On the other hand, "[i]t has been held consistently that
the prospect of future federal funding does not make a project
‘major federal action’ for NEPA purposes during the
planning stage." Macht v. Skinner, 715 F.Supp. 1131, 1134
(D.D.C. 1989). Therefore, the question is at what point
and when they come out the bottom, state or federal
funds are utilized on [the] projects. When they come
out the bottom and go to contract, sometimes they are
funded with state funds. For some reason early on we
decide that some projects should be state-funded, and
then they go all the way through as a state-funded
project. .... And so the fact that we are not spending
federal funds on Segment 3 does not mean the state
loses any federal funds. They still get the same
amount of federal funds, and those funds will just go to
other projects statewide. That's whey the Highway
Commission started out and said it had the discretion--
prerogative-- to make those things balance to the best
interest of the State of Texas.
App. 45
does a project become significant enough to be considered
federal for the purposes of NEPA. The mere prospect of
future federal funding is not enough, yet actual funding is not
the deciding factor either. !5
The Code of Federal Regulations prescribes the
policie and procedures of the FHWA for implementing
NEPA as well as the regulations of the CEQ, 40 C.F.R.
Parts 1500-1508. 23 C.F.R. § 771.101. Further, these
regulations set forth all FHWA requirements under NEPA
for the processing of highway and urban mass transportation
projects. Id. Section 711.113, titled "Timing of
Administrative Activities," states that the FHWA will perform
the work necessary to complete an EIS and comply with
other related environmental laws and regulations to the
maximum extent possible during the NEPA process.
However, some of the activities shall not proceed until certain
conditions set out in this section have been met. Id.
Plaintiffs argue that FHWA’s own interpretation of its
regulations and this section regarding the timing of NEPA
activities should determine at what point a project becomes
subject to NEPA. FHWA has published its interpretation of
Section 771.113 in the F | Register. 52 Fed. Reg.
32649, August 28, 1987. In its interpretation, FHWA states
that Section 771.113 places limits on the actions which
FHWA may take to develop a project prior to the completion
of the NEPA process:
This limitation on actions supports one of the
primary purposes of NEPA--that Federal
agencies consider environmental effects fully,
including alternative courses of action, before
15 The Fifth Circuit has previously acknowledged that ihe law
on this point is unclear. See e.g. Hawthom, 417 F.Supp. at 1096; see
generally Named Individuals Members , 496 F.2d 1017 (Sth Cir. 1974).
App. 46
— |
reaching a decision to proceed with major
Federal Actions.
It is important to note that the limitations on
premature commitments in the CEQ regulations
and this regulation apply to projects or
activities that may be proposed entirely for
local fundin n_applicant or pr tiv
— If the action in question is an
integral part of a larger project which is the
subject of an environmental document, that
action cannot be "segmented" from the overall
proposal and funded separately before the
environmental process is completed.
Id. (emphasis added).
FHWA’s interpretation of its own regulation forms
the crux of Plaintiffs’ argument for the application of NEPA.
Plaintiff argues that the Austin Outer Loop is a larger project
subject to federal environmental review of which Segment 3
is an integral part. Therefore, Plaintiff argues, this segment
should be enjoined from further construction pending a final
EIS on the entire loop.
Despite the above quoted regulation, the SDHPT
continues to contend that since it has not asked for federal
funding, this project is not subject to NEPA. A SDHPT
Engineer, Mr. Billy Rogers, testified at tria! that the state
does not obligate itself to any federal regulations until the state
has requested federal money pursuant to 23 U.S.C. § 105.'®
16 23 U.S.C. § 105 states that any State desiring to avail itself
of the benefits of this chapter shall submit to the Secretary for his
approval a program of proposed projects for the utilization of the funds
App. 47
Since none of these segments have been listed as a "105
Program" the State sees no obligation to comply with NEPA.
The witness offered by the FHWA to testify on this
point was Peter Lombard, the Director of Program and
Planning for FHWA. Mr. Lombard also stated a "proposal"
for federal action as referenced in NEPA is a project for
which a state has requested funding. He testified that only
federal funding makes an action a "major federal action."
Mr. Lombard offered no explanation for the difference
between his interpretation of federal regulations and that
interpretation published by his own agency in the Federal
Register quoted above.
If a project became subject to NEPA only upon a
request for funding pursuant to Section 105, the Court
believes the FHWA’s regulations would so state. Instead,
Section 771.111, C.F.R., states:
(b) The Administration will identify the
probable class of action as soon as sufficient
information is available to identify the probable
impacts of the action. ... [T]his is normally no
later than the review of ... the approval of the
105 program (23 U.S.C. § 105).
(emphasis added). The language of this section indicates that
the FHWA may take action from an unidentified point in time
up to the time the project is approved pursuant to Section
105. No section of the regulations states that FHWA only
becomes involved upon request of funding, and this
conclusion is consistent with the policy of NEPA already
discussed. Further, “major federal action” is defined in 40
apportioned. The Secretary shall not approve any project in a
proposed program which is not located upon an approved Federal-aid
system.
App. 48
C.F.R. Section 1508.18 as an “action with effects that may be
major and which are potentially subject to Federal control and
responsibility.!7
In support of Plaintiffs’ argument, they point out that
all of the other segments of the Austin Outer Loop, Segments
1, 2, 4 and 5 are headed for some federal funding.!8 Mr.
Billy Rogers, SDHPT engineer, testified that the state is
anticipating receiving some federal money for the remaining
segments. The estimated cost of the Austin Outer Loop is
estimated to be somewhere between 400 and 800 million
dollars. Mr. Rogers testified that at this price such a project
would “not likely” be funded by the state alone.
The Defendants have maintained throughout this
litigation that the Austin Outer Loop was not conceived as
one project nor were the segments being proposed, planned,
designed, or constructed as one project. However, the
evidence does not support this contention. From its
inception, the Segments have been considered exactly that,
"segments" of a greater project. In fact, when the SDHPT
first segmented the loop, the segments did not begin and end
at major radial roadways. Only at the FHWA’s insistence
did SDHPT divide the loop at major radials. Each segment
of the Austin Outer Loop therefore must be considered an
17 This section of the regulations is titled "Terminology and
Index” which is to be used specifically by the CEQ, but generally by
the Federal Government. 40 C.F.R. §§ 1508.1 et seq.
18 The September 23, 1989 "Current Status Report” on the
Austin Outer Parkway shows that the draft environmental impact
statement on Segment | has already been submitted to FHWA. It
shows the draft EIS on Segment 4 will be submitted to FHWA, and it
shows FHWA submission is anticipated for the EIS’s on Segments 2 and
5. It also shows Segment 4 is in the Section 7 consultation process
under the Endangered Species Act. :
App. 49
integral part of the larger project. The Court acknowledges
the fact that the SDHPT has not requested any federal aid for
any section of the Austin Outer Loop. However, the
probability of a request for federal funding is too great to
allow the SDHPT to construct one portion of the loop
without following federal law; otherwise, a prospective
applicant could always circumvent NEPA by designating a
portion of a larger project as state funded without affecting its
eligibility for federal funds for the remaining portion. '!9
Additionally, SDHPT’s motive for segmenting the
portion of the loop which traverses the area most
environmentally sensitive is naturally suspect. SDHPT did
not originally plan for Segment 3 to be constructed first.
Also, the Court finds no evidence of when and why Segment
3 was designated for state funds only. SDHPT’s only stated
reason has been that the state has that discretion. Further
evidence of SDHPT's desire to avoid federal environmental
law is the fact that construction on Segment 3 began in
December, 1989 after SDHPT knew of the trial date in this
case. Therefore, the Court is of the opinion that the Austin
Outer Loop is a "proposal for major federal action" subject
of an environmental document, and further that Segment 3
cannot be "segmented" from the overall proposal and funded
separately before the environmental process pursuant to
NEPA on the entire loop is completed.
B. MoPac South
South of Slaughter Lane, MoPac South has been
19 See Hawthom, 417 F. Supp. at 1101-02 (N.D. Georgia),
where the Court states “the prospects of its becoming a ‘major federal
action’ are sufficiently great to warrant treating it as sufficiently
federal for purpose of applying unified environmental standards to the
entire project.”
App. 50
planned for construction simultaneously with the first leg of
Segment 3 of the Austin Outer Loop because MoPac South
"would otherwise have no logical connection with other
existing roadways in the southern section of Travis County.2°
Since MoPac South has been planned for construction as a
part of Segment 3 which this Court has found to be an
integral part of a federal project, MoPac South must
necessarily be an integral part of a federal project and subject
to NEPA.
IIL, Laches
Three independent criteria must be met before laches
can be invoked to bar litigation, and the burden of proof is
placed on the party asserting the defense of laches. Mutual
Life Insurance Co. of New York v. Bohart, 743 F.2d 313,
326 (Sth Cir. 1984). “The defendant must show: (1) a delay
in asserting a right or claim; (2) that the delay was not
excusable: and (3) that there was undue prejudice to the party
against whom the claim is asserted." Save Our Wetlands,
Inc. v. United States Army Comps of Engineers, 549 F.2d
1021, 1026 (Sth Cir.), cert. denied, 434 U.S. 836 (1977);
Environmental Defense Fund, Inc. v. Alexander, 614 F.2d
474, 478 (Sth Cir. 1980). Whether laches bars an action in a
given case depends upon the circumstances of that case and is
"a question primarily addressed to the discretion of the trial
court." Gardner v. Panama R. Co., 342 U.S. 29, 30
(1951). The applicability of the doctrine to environmental
litigation is no longer open to doubt. Environmental Defense
Fund, 614 F.2d at 478.
The defense of laches is available in environmental
20 The development of MoPac South and Segment 3 as one
project was announced by the Corporation and published by the FHWA
in its publication "Highway Financing Briefs" dated January 1988.
App. 51
litigation but is disfavored because of the public interest in
environmental quality and compliance with Congress’
environmental policy. Association Concerned About
Tomorrow, Inc. v. Dole, 610 F.Supp. 1101, 1118 (N.D.
Tex. 1985). A laches defense in environmental cases has
succeeded only where a substantial portion of the project has
been completed at the time the suit was filed. Id. at 1119.
A. A Delay in A in Right or Claim
This Court has already found that Plaintiffs did delay
asserting their claims; therefore, this issue will not be
discussed.*!_ Next, the Court will consider the final two
elements of the laches defense as they relate to Segment 3 and
MoPac South respectively.
B. X le Del nd Undue Prejudi
Defendants
1. Segment 3
Defendant Corporation argues that Plaintiffs’ entire
case on Segment 3 focuses on one feature--segmentation."2-
Therefore, Defendant contends Plaintiffs should have
challenged the outer loop segmentation when the proposed
segmentation was made public in August of 1987. Defendant
Corporation further contends the FHWA regulations require
administrative steps which are designed to provide quick and
accurate notice to interested persons, and if Plaintiffs had
21 Order dated December 8, 1989 at 5.
22 MoPac South Transportation Corporation's Written
Closing Argument (J.B. Ruhl) at 13.
App. 52
simply inquired as to why these procedures were not being
followed, they would have quickly discovered that the
environmental reviews being conducted were not prepared
pursuant to federal law.
The “Notice of Intent" was published by the FHWA
in October of 1987 informing the public that EIS’s would be
prepared on all four segments of the outer loop. As this
noticed indicated, the state did begin to prepare EIS’s on all
four segments. However, the statement being prepared on
Segment 3, then Segment 3A, was different from the others.
The Segment 3A EIS was a “state” EIS--not one prepared
pursuant to federal law. Although a draft of this statement
was released by SDHPT in November 1988, but the draft
gave no indication that it was anything other than a federal
EIS.23 Further, SDHPT continued to show Segment 3 as a
federally funded project on its Transportation Improvement
Program and Annual Element for the years 1987-88, 1988-
89, and 1989-90.
Mere negligence to challenge an action is not sufficient
to establish laches in any case. Environmental Defense Fund,
614 F.2d at 479. The Defendants must show that those
23 A public hearing was held on November 3, 1988 on
Segment 3A which SDHPT argues Plaintiffs neglected io attend.
However, the agenda of that meeting makes no mention of the fact that
the EIS being discussed was not being prepared pursuant to federal law.
Additionally, no evidence was presented that State regulations or rules
regarding the preparation of EIS’s exist, so Plaintiffs were safe to
assume that the EIS was being prepared according to federal rules.
Defendants argue that it was openly apparent as early as June
of 1988 that construction was proceeding with state and private
funding. However, Plaintiffs produced a letter dated June 3, 1988 from
Roland Gamble, District Planning Engineer of SDHPT, to a real estate
firm that inquired about the status of the loop. In that letter, Mr.
Gamble details the environmental review process but makes no
mention of a state and federal process.
App. 53
whom it seeks to bar by invoking laches were or should have
been aware of the questionable nature of the government’s
activity. Id. Along those lines, when government action is
involved, members of the public are entitled to assume that
public officials will act in accordance with the law. Id.; Save
Qur Wetlands, 549 F.2d at 1027-28; Clark v. Volpe, 342
F.Supp. 1324, 1328-29 (E.D. La. 1972), aff'd per curium
461 F.2d 1266 (Sth Cir. 1973).
When Plaintiffs did begin to inquire about the status of
the environmental review process in early 1989, their efforts
were thwarted by both the federal and state Defendants. The
SDHPT advised its staff by memo dated May 11, 1989, that
they were to give no information to Save Barton Creek
Association regarding scheduling. FHWA refused Plaintiff's
Freedom of Information Act requests on June 30, 1989,
claiming that SDHPT was acting as a “consultant” in
preparing the EIS’s for purposes of NEPA. The parties
have stipulated that no officer or director of any of the
Plaintiff organizations, prior to November 1988 had actual
knowledge that Segment 3A Draft EIS was nota NEPA
document. Not until August 1989 did Plaintiffs learn that
Segment 3 was state funded.
In light of the above facts, the Court finds that
Defendants have failed to uphold their burden to show
Plaintiffs should have been aware of the questionable nature
of the SDHPT’s activity. The public should not be required
to assume the law is not being followed and investigate. Yet,
when Plaintiffs did investigate they were immediately turned
away by SDHPT. SDHPT’s intentions regarding Segment 3
may have been on the “up and up"; however, the evidence
does not reveal any measurable good will on the State's part.
Barring Plaintiffs’ claim by laches would be inappropriate for
that reason alone considering the equitable nature of the
defense.
Finally, Defendants have very little room to claim
App. 54
undue prejudice from Plaintiffs’ delay in filing suit
considering construction of Segment 3 did not begin until
December 1989.24
2. MoPac South
An abundance of evidence has been presented
throughout this litigation regarding Plaintiffs’ diligence, or
lack thereof, regarding claims on MoPac South. Essentially,
the Defendants contend Plaintiffs’ suit was ripe in 1986 and if
Plaintiffs were not, in fact, aware of funding on MoPac
South, they should have been. Plaintiffs contend, however,
that Defendants deceived them and their deception prevented
Plaintiffs from filing suit earlier. The evidence clearly
shows, however, that, the State decided to proceed with
exclusively state funding in October of 1986. Thereafter, the
State was forthcoming and unambiguous about its plans
regarding MoPac South.?5 Plaintiffs never inquired as to the
24 Mr. Thomas Word, an engineer with SDHPT, testified that
Seyment 3 is approximately 10% complete measured in dollars spent
as compared to dollars budgeted.
Also worthy of note is that on September 16, 1989, SDHPT's
designated representative for its deposition did not know when
construction bids for the first work on Segment 3 would be requested.
The first construction work began December 12 or 13, 1989.
25 The draft EIS and the status of MoPac South were the
subject of several public meetings. Notice of these meetings was
published in the Austin American Statesman and posted with local,
county and state officials. These meetings were being held as early as
the latter part of 1986. An officer of Plaintiffs’ organizations attended
a December, 1986 public hearing and expressed his intention to
thoroughly review the draft EIS and submit any comments or concerms
regarding that document. Plaintiffs never submitted such comments.
App. 55
LE
funding status or environmental review procedures of MoPac
South nor did Defendants misstate the funding sources or
environmental review procedures being used.26 Therefore,
Plaintiffs’ delay borders on the line of being inexcusable;
however, the Court will not resolve this dispute. Rather, the
Court will focus on whether the prejudice to Defendants is
undue simply because the potential harm to Defendants is so
great if Plaintiffs prevail on their claims regarding MoPac
South.
Commencement of construction on MoPac South was
announced in an article appearing in the April 28, 1988 issue
of the Austin American Statesman, and construction began
soon thereafter.>7
As of this date, construction of MoPac South from
U.S. 290 to Slaughter Lane is 96% complete, and
construction of MoPac South from Slaughter Lane to Hannon
Lane is 42% complete.28 The SDHPT has expended over
$10,000,000 in the construction of MoPac South, and the
Corporation has by its efforts donated over $10,000,000
worth of right-of-way and services to the State for MoPac
South. Additionally, local governments have expended
26 Plaintiffs have argued throughout that Defendants’
deception regarding MoPac South kept them from discovering the true
nature of the EIS being prepared. However, Defendant Corporation
makes a point in its written closing argument which is well-taken: “If
indeed they [Plaintiffs] did think MoPac South was undergoing NEPA
review, why did they never avail themselves of numerous opportunities
to comment on the adequacy of the environmental! impact statement?"
Written Closing Argument at 7.
27 Despite pap, extension of MoPac begins, Austin American
Statesman, April 28, 1988.
28 Testimony of Thomas Word, SDHPT engineer.
App. 56
substantial funds to develop infrastructure to be used in
southwest Travis County based on the assumption that MoPac
South would be available for traffic use in 1990.
The Court acknowledges the futility of enjoining the
construction of MoPac South from U.S. 290 to Hannon
Lane. However, construction of MoPac South from Hannon
Lane south to the proposed intersection with Segment 3 is not
yet under way. Since MoPac would not have a road to
otherwise intersect if construction of Segment 3 is enjoined,
Defendants will not be unduly prejudiced by Plaintiffs’
delay.29 Therefore, laches will bar Plaintiffs’ claims
regarding MoPac South from U.S. 290 to Hannon Lane
because the delay, whether excusable or not, results in great
prejudice to Defendants. However, any claims regarding the
final leg of the project, from Hannon Lane South, will not be
barred.
VI. Remedy
The normal remedy afforded by the courts for a
NEPA violation is an injunction prohibiting construction and
maintaining the status quo until the agency has complied with
the statutorily required procedures. Richland Park
Homeowners Association v. Pierce, 671 F.2d 935, 941 (Sth
Cir. 1982).30 An injunction of the federal action at issue is
often appropriate but should be limited by general equity
principles. Environmental Defense Fund, 651 F.2d at 1005-
29 Defendant Corporation acknowledges that the final phase
of MoPac South is “very much influenced” by construction of Segment
3.
30 But see Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152,
1158 (9th Cir. 1988) where court held that NEPA does not mandate an
injunction; see also Amoco v. Village of Gambell, 480 U.S. 531 (1987).
App. 57
06. To allow additional investment in a particular course of
action prior to completion of the NEPA process tends to
undermine the role of the NEPA alternatives analysis in the
agency decision-making process. One beneficial effect of
such injunction is to maintain the status quo so that the
relevant decision makers and the public may still have the
opportunity to choose among alternatives, as required by
NEPA. Id. Another purpose is to provide the agency with
an incentive to comply with NEPA in as rapid and thorough a
manner as is reasonably possible. Id.
Defendants first argument against an injunction is that
the roadways will relieve traffic congestion in southwest
Travis County and benefit the public health and welfare.
However, Defendants’ exhibits clearly show that south of
Slaughter Lane the vast majority of the area surrounding
MoPac South is undeveloped. Defendants next argue that the
roadways are already under construction at great cost to
SDHPT. This may be true, but again Defendants were
aware of the risk they were taking when they began
construction on Segment 3 after this lawsuit was filed.
Next, Defendants argue that requiring the completion
of an EIS on Segment 3 would have no effect because the
State has already chosen not to seek federal funding, and is
probably no longer eligible for funding. Perhaps the State
has foregone its chance of receiving federal money to
construct this segment, but, as already stated, funding alone
does not determine whether federal environmental law
applies. Defendants also warn of the probability of future
litigation over the proper procedures; however, the threat of
future litigation should not preclude injunctive relief.
Finally, Defendants contend that the secondary
development effects of the roads will be controlled by local
regulations, such as the existing Comprehensive Watershed
Ordinance and proposed Texas Water Commission
regulations, so an injunction is not necessary to ensure such
App. 58
controls are put in effect. Hence, an injunction is not needed
and would do more harm than good.3!
Instead, the Corporation suggests that the Court
"could fashion a supplemental EIS requirement for the State
to satisfy and track through the FHWA review and public
comment procedures within a time frame specified by the
Court."32, SDHPT also argues that Plaintiffs are not entitled
to injunctive relief because they have never been able to
quantify any harm to the aquifer.
Plaintiffs urge this Court to issue an injunction to halt
31 Defendants spent a lot of time at trial presenting the Court
with evidence of the protections already provided by the
Comprehensive Watershed Ordinance and proposed Texas Water
Commission regulations.
The Watershed Ordinance, No. 860508-V, was established
pursuant to Texas Legislature directive that every city with a
population of 5,000 or more shall establish a water pollution control
and abatement program. Texas Water Code , Section 26.117(a).
The City of Austin, through its Amicus Curiae Brief, has
informed the court that many of the municipal utility districts about
which Defendants spoke so highly are grandfathered from the
Comprehensive Watershed Ordinance which is applicable in Austin’s
Extra-Terntonal Jurisdiction. Further, the City argues that the
Comprehensive Watershed Ordinance will not fully explore the
environmental consequences of the construction of the southernmost
extension of MoPac and Segment 3 as an EIS would. See Supplement
to City of Austin Amicus Curiae Brief at 5-11.
Additionally, the Court finds it interesting that the Austin City
Council instructed its City Attorney to file an amicus curiae brief,
strongly urging this Court to enjoin the construction of these projects,
which have been planned and sought by other “city fathers” for almost
one-half a century.
32 MoPac South Transportation Corporation’s Written
Closing Argument (J.R. Ruhl) at 18.
App. 59
construction on MoPac South south of Slaughter Lane and
Segment 3 citing the risk of contamination to the aquifer and
the risk of destruction of habitat for endangered species.
Evidence offered by both parties at trial revealed the
sensitivity of the aquifer and the surrounding environment,
thereby making the granting of an injunction the most
appropriate remedy.
This Court cannot practically determine what
environmental studies need to be conducted on these projects
as the Corporation suggests. The Court trusts that the
federal law is clear on a requirements of the NEPA EIS, and
that federal environmental law will define what necessary
work needs to be done. Furthermore, SDHPT must be
aware of and very familiar with the requirements of a federal
impact statement considering the fact that the four remaining
segments of the outer loop are currently in the environmental
review process.
Plaintiffs also request that this Court order one EIS be
prepared for MoPac South and the Austin Outer Loop citing
the U.S. Supreme Court case of Kleppe v. Sierra Club, 427
U.S. 390 (1975). Kleppe stands for the proposition that
NEPA may require a comprehensive impact statement in
certain situations where several proposed actions are pending
at the same time. Id. at 409. When actions will have a
cumulative or synergistic environmental impact upon a region
and those actions are pending concurreritly before an agency,
their environmental consequences must be considered
together. Id. at 410; see also 40 C.F.R. § 1508.25.
Kieppe goes on to say, however, a “regional
environmental impact statement" will be prepared unless a
previous EIS has sufficiently analyzed the impacts of the
proposed actions. Id. at 411 (emphasis added). The
determination of the region with respect to which a
comprehensive statement is necessary requires a high level of
technical expertise and is properly left to the informed
App. 60
a
discretion of the responsible federal agencies. Id. Absent a
showing of arbitrary action, the Court must assume the
agencies have exercised this discretion appropriately. Id.
In this case, the SDHPT has submitted EIS’s on the
remaining four segments and at no point has the FHWA
instructed SDHPT to prepare a regional EIS. The decision
to prepare separate statements is better !eft to the experts.
This Court is not in the position to decide whether the entire
loop should be considered in one statement. Rather, SDHPT
will be ordered to prepare an EIS on Segment 3 just as it has
on the remaining four segments. Accordingly,
IT IS ORDERED that Defendants FHWA and
SDHPT, and Defendant-Intervenor MoPac South
Transportation Corporation, their employees, agents,
consultants and contractors are hereby enjoined from any and
all construction and development activities on (1) the Austin
Outer Loop, (2) Mopac South south of Hannon, until such
time as the procedures provided under the National
Environmental Policy Act for major federal action
significantly affecting the environment are completed.
IT IS FURTHER ORDERED that additional
surveying or preliminary engineering work on the Austin
Outer Loop prior to completion of the National
Environmental Policy Act procedures shall be strictly limited
to that which is necessary to evaluate potential impacts of the
proposed project and any alternative alignments or proposals.
IT IS FURTHER ORDERED that until such time as
the above required procedures are completed, Defendant
SDHPT shall undertake the following interim measures to
protect the existing environment from runoff from
construction already initiated on MoPac South and F.M.
1926:
(a) stabilize all construction areas, using berms or
double rows of filter fences where necessary, so that no
sediment or other construction pollutants may exit presently
App. 61
disturbed areas;
(b) revegetate any cleared but not yet paved areas
using native grass mix (exotic grasses like King Ranch
bluestem should not be used). In revegetating, chemical
hydromulch should not be used, nor should fertilizers be
used beyond the minimum necessary to allow initial
establishment of grasses.
(c) Regularly maintain berms, filter fences, and all
other sedimentation controls in order to insure that no
sediment or construction pollutants exit the site. All
temporary sedimentation control measures should be inspected _
and, if necessary, repaired or replaced, immediately following
any rain of more than 0.20 inches.
(d) All construction related or other chemical
products, hazardous or non-hazardous, shall be removed
from the above-described project sites.
IT IS FURTHER ORDERED that the Plaintiffs
submit an affidavit of attorney’s fees within twenty (20) days
of entry of judgment in accordance with Local Rule 300-9.
SIGNED this 6th day of March, 1990
/S/ Walter S. Smith, Jr.
WALTER S. SMITH, JR.
UNITED STATES DISTRICT
JUDGE
App. 62
OE eed
App. 63
App. 64
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
Civil Action A-89-CA-719
(April 5, 1990)
SAVE BARTON CREEK ASSOCIATION, WE CARE
AUSTIN and AUSTIN CROSSROADS,
Plaintiffs,
Vv.
FEDERAL HIGHWAY ADMINISTRATION (FHWA) and
TEXAS STATE DEPARTMENT OF HIGHWAYS AND
PUBLIC TRANSPORTATION,
Defendants,
and
MOPAC SOUTH TRANSPORTATION CORPORATION,
Intervenor.
ORDER
Came on this day to be considered Plaintiffs’ Rule
52(b) Motion and Brief for Additional Fact Findings and
Plaintiffs’ Rule 59(e) Motion and Brief to Amend Judgment.
Plaintiffs request four additional fact findings and
App. 65
amendments to the Memorandum Opinion and Order and the
Judgment entered on March 6, 1990.
Plaintiffs first request that the first full paragraph on
page 29 be amended so that its introductory clause reads:
IT IS FURTHER ORDERED that until such
time as the above required procedures are
completed, Defendant SDHPT shall undertake
the following interim measures to protect the
existing environment from runoff from
construction already initiated on MoPac South
south of Hannon Lane and on the Austin Outer
Loop from its proposed intersection with
MoPac South to FM 1826:
The Defendants, with the exception of the FHWA who
requests the denial of all of Plaintiffs’ amendments, agree that
this change should be made, so this request will be granted.
Accordingly,
IT IS ORDERED that the first full paragraph on
page 29 of the Court’s Memorandum Opinion and Order and
the first introductory clause to the last paragraph on page | of
the Judgment are so amended.
Second, the Plaintiffs request that crushed limestone
which has been laid east of F.M. 1826.0n the Outer Loop be
“penetrated to allow moisture migration and be covered with
topsoil and revegetated." The SDHPT recognizes that the
area in question cannot be maintained in its current state
because to do so would result in “degradation of the
compacted base and an increased potential for erosion."
However, SDHPT argues that revegetation of the area is not
feasible because moisture from the natural ground surface
will not be able to reach the vegetational root systems
underlying the stone base bed. SDHPT maintains the best
way to stabilize this portion of the construction area is to
App. 66
place a seal coat, which is a thin spray of asphalt binder
covered with clean rock, over the base already in place. The
Court agrees that this would be keeping with the Court’s
finding that all construction areas be stabilized; therefore,
Plaintiffs’ second request DENIED.
Third, Plaintiffs have moved the Court to amend its
Order and Judgment to state that laches only bars Plaintiffs’
claims regarding the 1991 phase of MoPac South from U.S.
290 to Hannon Lane, and not the 2006 phase. Defendants
argue that the Court correctly barred Plaintiffs’ NEPA claims
for the MoPac South roadway north of Hannon Lane,
thereby precluding any attempts by Plaintiffs to impose
NEPA on SDHPT for that portion of road, regardless of the
"phase" of construction. The Court was unaware of the
“phased construction" of MoPac South, and never intended to
differentiate between the 1991 and the 2006 phase.
Therefore, this request for amendment is also DENIED.
Finally, Plaintiffs suggest the following addition to the
Court's finding that MoPac South is subject to NEPA:
MoPac South is further subject to NEPA
because the project is an extension of a federal
project (MoPac), a connection of three federal
projects (MoPac, U.S. 290 and the Austin
Outer Loop), and it lacks substantial
independent utility. See Hawthorne, 417
F.Supp. 1091; Piedmont Heights Civic Club
Inc. v. Moreland, 637 F.2d 430, 440 (Sth Cir.
1981).
Defendants believe such an amendment would be improper,
and would be an error of fact. The Court disagrees, and this
request will be granted. Accordingly,
IT IS ORDERED that this sentence be added to the
conclusion of paragraph II.B., page 17 of the Memorandum
App. 67
Opinion and Order.
SIGNED this Sth day of April, 1990.
/S/ / Walter mith, Jr
WALTER S. SMITH, JR.
UNITED STATES DISTRICT
JUDGE
App. 68
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-8036
SAVE BARTON CREEK ASSOCIATION,
WE CARE AUSTIN and AUSTIN CROSSROADS,
Plaintiffs-Appellees and Cross-Appellants
versus
FEDERAL HIGHWAY ADMINISTRATION (FHWA)
and TEXAS STATE DEPARTMENT OF HIGHWAYS
and PUBLIC TRANSPORTATION,
Defendants-Appellants and Cross-Appellees,
and
MOPAC SOUTH TRANSPORTATION CORPORATION,
Intervenor-Defendant and Appellant-Cross-Appellee.
Appeals from the United States District Court for the
Western District of Texas
App. 69
ON SUGGESTION FOR REHEARING EN BANC
(Opinion _1-17-92, 5 Cir., 198_, _._F.2d__)
(February 24, 1992)
Before WILLIAMS and BARKSDALE, Circuit Judges. *
PER CURIAM:
(X) Treating the suggestion for rehearing en banc as a
petition for panel rehearing, it is ordered that the petition for
panel rehearing is DENIED. No member of the panel nor
Judge in regular active service of this Court having requested
that the Court be polled on rehearing en banc (Federal Rules
of Appellate Procedure and Local Rule 35), the suggestion
for Rehearing En Banc is DENIED.
ENTERED FOR THE COURT:
/S/ J.S. Williams
UNITED STATES CIRCUIT JUDGE
*Chief Judge Charles Clark was a member of the original
panel but resigned from the Court on January 15, 1992, and,
therefore, did not participate in this decision. This matter is
being decided by quorum.
App. 70
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Urban Mass Transportation Administration
Section-by-Section Analysis of
Environmental Impact and Related Procedures
(52 Federal Register 167 [pp.32,646, et seq. - 8/28/1987])
Section 771.113 Timing of Administration Activities.
This section describes the timing of various project
development activities in relation to the completion of the
environmental process. It places limits on the actions which
the Administration and the applicant may take to develop a
project prior to the completion of the NEPA process.
The language in paragraph (a) Supports, and should
be read in conjunction with, section 1506.1 of the CEQ
regulations, “Limitations on actions during NEPA Process."
These provisions ensure that the Administration’s decision
whether to implement an alternative under consideration in the
environmental document will not be influenced by a previous
commitment to a particular course of action. As such, the
strictures apply not only to the Administration and applicants,
but also third parties acting under a contractual agreement.
Furthermore, the Administration or the applicant cannot
prematurely enter into a contract which irrevocably binds it to
the future performance of this work. This limitation on
actions supports one of the primary purposes of NEPA - that
Federal agencies consider environmental effects fully,
including alternative courses of action, before reaching a
decision to proceed with major Federal actions.
The wording in this paragraph has been revised to
make clear the kinds of activities that will be allowed prior to
App. 71
the completion of the NEPA process. This will include any
impact studies and engineering work needed to complete the
environmental document. Normally, preliminary design will
provide all the project information needed to satisfy
environmental requirements. In certain cases, more detailed
design work will be needed to satisfy a specific environmental
requirement and this additional design work is allowed. This
paragraph has also been changed to expand on the kinds of
activities which may not occur prior to completion of the
NEPA process.
It is important to note that the limitations on premature
commitments in the CEQ regulations and this regulation apply
to projects or activities that may be proposed entirely for local
funding by an applicant or prospective applicant. If the action
in question is an integral part of a larger project which is the
subject of an environmental document, that action cannot be
"segmented" from the overall proposal and funded separately
before the environmental process is completed. Segmentation
of a project might involve the early acquisition of property or
the purchasing of rolling stock, construction materials, or
other equipment needed during the construction phase.
Segmentation could also entail separate development by the
applicant of an entire portion of a project. e.g., a segment of
highway or transit guideway that should be considered as part
of a larger project for which Federal assistance is being
sought.
A number of commenters suggested revisions to his
section to permit the applicant to proceed with final design
activities after the receipt and evaluation of comments on the
draft EIS and prior to approval of the final EIS. The
* The box around this paragraph is Petitioners’.
App. 72
commenters contended that the EIS approval process delayed
the start of final design work and, therefore, induced delays
in all subsequent phases of the project development process.
They suggested that if no environmental concern were raised
during the draft EIS circulation period, final design of the
preferred alternative should be allowed to proceed. The
Administration has carefully considered these comments and
continues to believe the environmental process must be
completed and the EIS approval made before it is in a
position to permit the applicant to proceed with final design
activities. We recognize the need to develop preliminary
designs in order to more accurately assess impacts in the
environmental document. However, granting approval to
proceed with final design at this stage would be a premature
commitment to one alternative at a time when other
alternatives, including the alternative of taking no action, are
still being actively considered by the Administration in the
environmental process.
However, the Administration recognizes the need to
proceed with detailed design activities where such work is
necessary to permit the full evaluation of environmental
impacts and to permit the consideration of appropriate
mitigation measures, e.g., impacts to wetlands, section 4(f)
areas and resources covered by section 106 of the National
Historic Preservation Act (section 106). The regulation
provides for those situations by allowing the applicant to
complete all necessary design work needed to complete the
EIS or to comply with other environmental laws during the
NEPA process. This should not be construed as an
authorization to proceed with final design for the entire
project, but only for those aspects of the project necessary to
consider specific environmental concerns.
The possibility of acquisition of land for a project
before completion of the NEPA process was raised by
several commenters. The UMTA received comments in
App. 73
favor of both expanding and restricting the scope of advance
land acquisition allowed under the regulation. Several
commenters suggested that UMTA expand the scope of
advance land acquisition because the Surface Transportation
Assistance Act of 1982 (STAA) amended section 3(a)(1)(A)
of the UMT Act by adding a provision specifically addressing
UMTA'’s discretion to make grants or loans for the
acquisition of rights-of-way and relocation for fixed guideway
corridor development for projects in advanced stages of
alternatives analysis or preliminary engineering. On the other
hand, one commenter expressed the opinion that "no
acquisition should be allowed prior to completion of the
NEPA, process," arguing that hardship or protective buying
cannot be accomplished without influencing or limiting the
choice of reasonable alternatives.
In weighing the arguments, UMTA considered how to
implement the STAA amendment consistently with the
agency's responsibilities under NEPA and with the results of
pertinent case law governing advance land acquisition.
National Wildlife Federation vs. Snow, 561 F.2d 227 (D:°C.
1976). The UMTA has concluded, in light of these
considerations and a review of the pertinent legislative
history, that this amendment was not intended to override the
requirements of NEPA.
For UMTA’s major fixed guideway projects, the draft
and final EISs are developed during alternatives analysis and
preliminary engineering. Any authorization for advance land
acquisition during alternatives analysis or preliminary
engineering would create a conflict with NEPA if the
acquisition could result in a substantial commitment to a
particular course of action before the NEPA process was
completed. In addition, since UMTA’s major investment
procedures are integrated with the NEPA process, this would
also prejudice the major investment decisionmaking process.
After careful review, FHWA and UMTA still believe
App. 74
that some advance land acquisition may take place on a case-
by-case basis without resulting in a substantial commitment to
a particular course of action before completion of the NEPA
process. Therefore, in this regulation, FHWA and UMTA
are maintaining the current practice: that is, the only types of
advance land acquisition that FHWA and UMTA will approve
before the completion of the NEPA process are “hardship”
and "protective" acquisitions. These terms are defined in §
771.117(d)(12) of this regulation.
As in the past, this type of land acquisition is reserved
for extraordinary or emergency situations involving a
particular parcel or a limited number of parcels within the
proposed transportation corridor. It has been FHWA’s and
UMTA’s recent experience that the number of hardships and
protective acquisitions On a given project are so few as to not
result in a substantial commitment to a particular course of
action. The purpose of protective acquisition is to preserve
the status quo. Since it serves to protect valuable property
and can be easily undone, such acquisition generally will not
tilt the balance toward a particular alternative.
Another question is whether acquiring an option to
purchase land before completing the environmental process
would be an acceptable alternative to assure the availability of
land for project purposes. It would be less costly and
arguably would constitute a smaller commitment than the
actual purchase of land. Generally, UMTA and FHWA
maintain that acquiring options to purchase land for a project
would tend to bias fair consideration of other project
alternatives and violate basic principles of Federal
environmental law. Therefore, the same standards apply to
options to purchase as to outright purchase of land: before
completing the environmental process, only acquisitions for
hardship and protective purposes are acceptable.
To obtain approval for hardship or protective
acquisition, the applicant should apply for a CE under
App. 75
paragraph 771.117(d)(12). In addition, for FHWA actions,
hardship and protective acquisition activities must be
processed in accordance with 23 CFR 712.204(d). It should
be noted that a CE for advance land acquisition applies only
to the purchase of property and does not permit further
project development. The restrictions of paragraph
771.113(a) will apply until the Administration completes the
NEPA process for the entire proposed action. The FHWA
has issued guidelines and UMTA is preparing similar
guidance describing the documentation needed to support
requests for hardship and protective buying. Documentation
supporting these claims will continue to be reviewed in the
field offices of FHWA and UMTA.
One commenter suggested that any advance land
acquisition be noted in the subsequent EIS or EA. The
FHWA and UMTA have no objection to noting this
information in environmental documents, but do not believe it
is appropriate to require it under the regulation.
Paragraph (a)(3) has been added to emphasize that in
addition to environmental requirements, certain programming
requirements must be satisfied prior to the initiation of
FHWA funded final design, acquisition, and construction
activities. This paragraph is a cross reference to 23 CFR
Part 450 and 23 CFR Part 630 and does not create any
additional requirements.
Paragraph (b) has been revised to indicate that FHWA
approval of the final environmental document is considered
acceptance of the general project location and project concepts
such as type of facility, interchange locations, and other major
features which may be indicated in the environmental
document. This paragraph is an indication that FHWA
normally will approve for Federal funding a project of the
type noted in the final environmental document. However, it
does not commit the Administration to fund any specific
project or any features identified therein. Final approval of
App. 76
the EIS does not constitute a commitment to fund the project,
as noted in this paragraph and in § 771.125(e) of this
regulation.
App. 77
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