Petition for Writ of Certiorari — Buckingham Township v. Wykle

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Supreme Court, U.S.

FILED

011869 JUN 20 2002

No. 01- | a

IN THE

Supreme Court of the United States

BUCKINGHAM TOWNSHIP,

Petitioner

KEN WYKLE, HONORABLE, Administrator, Federal Highway

Administration; DAVID LAWTON, Chief of Planning, Region 3

Federal Highway Administration, DELAWARE VALLEY

REGIONAL PLANNING COMMISSION; and BRADLEY

MAWLORY, Secretary for the Department of Transportation,

Commonwealth of Pennsylvania,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Rosert R. ELiott

Counsel of Record

RoBeErRT J. SUGARMAN

3521 Prospect NW

Suite 500

Washington, D.C. 20007

(202) 338-5835

Attorneys for Petitioner

174569 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

“Tec

;

—

QUESTIONS PRESENTED FOR REVIEW

1. Should judicial review of administrative action be so

deferential as to authorize conscious manipulation of the

record, in order to avoid rules requiring disclosure of the

effects of the action, and to violate the mandate to discuss

alternatives to the action, where the governing statute (the -

National Enviromental Policy Act of 1969, 42 U.S.C. § 4321

et seg.) requires disclosure and discussion, pursuant to

decisions of this Court?

2. Where judicial deference to administrative good faith

action is required, and objective and subjective good faith

are placed at issue by the disclosure of evidentiary

manipulation, does the rule that review is focused on the

information before the agency properly apply to preclude

evidentiary hearings?

3. Does the Eleventh Amendment allow states which

intervene in federal cases to bar review of their compliance

with state law?

ei ii

TABLE OF CONTENTS

Page

Questions Presented for Review ................ i

ce ee ee re er Pore ll

Table of Cited AMIN «oc neice senesenses IV

Tabet Of AMURRTIOUE. 2 x. cess shee esd oneness en Vill

eens DOW on 5h oa iss a eee keene l

Statement of Jurisdiction .........0ccescescees ]

Statutory Provisions Involved ................. l

Statement OF UG COME akc cvavcexdcwbasansaeeees 3

How the Federal Question Was Presented ...... 3

Statement OF PROUD 6 oo cn ass kaka avies tus de eos 3

Reasons for Granting the Wit. «6. 56 cc neces: 7

I. Summary Of Argument ................. 7

II. Substantial Compliance With NEPA’s

Disclosure Requirements Should Be Required

Pree r rrr rere eh er 10

III]. A Rule Is Needed As To When Evidence Is

Allowed To Determine The Significance And

Good Faith Of Omissions From The Record

rr ere 15

IV. The Effect Of The Present Third Circuit Rule

Is Significantly AGVOUSO «2.56. cisceveces 23

lil

Contents

Page

V. Eleventh Amendment Immunity Should Not

Apply, After Lapides, To A State That

ee seb a's sg soho 34k > 4 do OK 25

Ne Ges 6 bk «hv Kad 5 00:0 06 040 8 0's 26

TABLE OF CITED AUTHORITIES

Page

Federal Cases:

Airport Impact Relief, Inc. v. Wykle,

e/g &” Boge he} a, re 17

Baltimore Gas & Elec. Co. v. Natural

Resources Defense Council,

le Ss Pe ak cee hobo oe edee waa 7, 10

Buckingham Township v. Wykle, et al.,

157 F. Supp. 2d 457 (E.D. Pa. 2001) .......... 133

Buckingham Township v. Wykle, et al.,

2002 WL 21710 (36 Civ. 2002) onc cc cceseves ]

Camp v. Pitts,

ith Se Ce, oe: re 9, 15, 16, 17, 19, 21

Carmel-By-The-Sea v. U.S. Dept. of Transp.,

wee e Borg) ae ey) re 10

Citizens to Preserve Overton Park, Inc. v. Volpe,

WOl Ui SEE ESTED oti nesdaceeds 8, 15, 16, 18, 19

City of Bridgeton v. FAA,

212 F.3d 448 (8th Cir. 2000), cert. denied,

Dae Gh BUSTED bce ne reer newedewesies 10

County of Suffolk v. Secretary of Interior,

562 F.2d 1368 (2d Cir. 1977), cert. denied,

OPW Me. PO RITED 1 Sbeccdsb teveseneeenrs 17, 18

Cited Authorities

Page

Cronin v. United States Department of Agriculture,

919 F.2d 439 (7th Cir. 1990) ................ 17

Dickinson y. Zurko,

SET ME RPPRREOOD ccd bea reels 20

Druid Hills Civic Association, Inc. y.

Federal Highway Administration,

772 F.2d 700 (11th Cir. 1985), cert. denied,

OES SID. SEP Cee oi ovina ekk scsaceces ives 10-11

Dubois v. U.S. Dept. of Agriculture,

102 F.3d 1273 (1st Cir. 1996), cert denied,

Pied Niele NUTR EOED Sucks oN oe eee ease teu 10

Ex Parte Young,

ce Ul 8E9 (IFO 6s nner eke 26

Florida Power & Light Co. v. Lorion,

S70 US. TZP (IFES) onc occ ccc: 7,9, 16, 17, 19, 20

Hickory Neighborhood Defense League v. Skinner,

893 F.2d 58 (4th Cir. 1990) ...........0.0... 10

Kleppe v. Sierra Club,

C27 UD. POO CURT ose savederceuel 7, 10, 20, 22

Lapides v. Board of Regents of

University System of Georgia,

535 U.S. __, 122 S. Ct. 1640 (2002) .......... 25, 26

Marsh v. Oregon Natural Resources Council,

GPa UD. OO CIPRO 6 sii skciversinieee eee 20, 22

Cited Authorities

National Audubon Society v. Hoffman,

etyvgh Per is . :) Peerereericer eres

National Audubon Society v. U.S. Forest Service,

46 F.3d 1437 (Sth Cir. 19946) on. cess svccscces

NRDC v. Hodel,

865 F.2d 288 (D.C. Cir. 1988) ..... Trerrere

Pacific Gas & Electric Co. v. State Energy

Resources Conservation & Development Comm.,

461 UE. TOR Cpe 6 ccieesancecesakeeace

Sierra Club v. Corps. of Engineers,

7Ol F.26 1OLT GRR CU, TIS) «x cov ce cdawevades

Sierra Club v. Corps. of Engineers,

17a Fae VORS GRE CE, TOD os 0 iv ks cneecces

Sierra Club v. Marsh,

te wi ist) is 8. |. err

Township of Springfield v. Lewis,

TO2 F.2G- 426 G6 Coe, TGR) oss vs ence evcseaes

Trinity Episcopal School Corp. v. Romney,

Yee Eo tk oe Seep rye ee

Verizon Maryland, Inc. v. Public Service

Commission of Maryland,

bad S. CR. P79 Gee a ee ken ee eee

Te ee eee

vii

Cited Authorities

Page

Vermont Yankee Nuclear Power Corp.

v. NRDC, Inc.,

Se ee OPE ov ehn 4 ce bance beeen’ tes 10

Webb v. Gorsuch,

oe & Beye! Le a.) eres 17

Statutes:

Nationa! Environmental Policy Act of 1969,

tk Sal 2 Re eee eee ee Re

Administrative Procedures Act,

Bb Ss oh Re ee er re ae

Be Ac OEE 06 6.65565 on ences neue es sien sox 3

RRS of GC) : So eres reer rey eee 3

Federal Regulation:

er ROE hk oo ware neabodscexsseausees 11

vill

TABLE OFAPPENDICES

Appendix A — Memorandum Opinion And

Judgment Of The United States Court Of Appeals

For The Third Circuit Dated And Filed January 7,

Perr errr rr rrr Te Terr TT yr or rT

Appendix B — Memorandum Opinion Of

The United States District Court For The Eastern

District Of Pennsylvania Dated June 21, 2001 And

Entered And Filed June 22, 2001 .............

Appendix C — Order Of The United States District

Court For The Eastern District Of Pennsylvania

Filed February 25, 2000 And Entered February 28,

BEE cp vsnssanbawseeeenaccehieetae tiene be

Appendix D — Opinion Of The United States Court

Of Appeals For The Third Circuit Denying Petition

For Rehearing Dated March 22, 2002 .........

Page

36a

Petitioner, Buckingham Township, respectfully requests that

a writ of certiorari be issued to review the judgment of the United

States Court of Appeals for the Third Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals in

Buckingham Township v. Wykle, et al., No. 01-2673 (3d Cir.

2002) is not published, but can be found at 2002 WL 21710.

(Appendix A). The opinion of the district court is reported at

Buckingham Township v. Wykle, et al., 157 F. Supp.2d 457

(E.D.Pa. 2001). (Appendix B).

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for the

Third Circuit was entered on October 30, 2001. (Appendix A).

The Court of Appeals denied a timely petition for rehearing on

March 22, 2002. (Appendix D).

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 4332(2)(C) of the National Environmental Policy

Act (NEPA) provides, in relevant part, as follows:

[A]ll agencies of the Federal Government shall

... 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: (i) the environmental

impact of the proposed action, (ii) any adverse

environmental effects which cannot be avoided

a” SRR I

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 commitment of

resources which would be involved in the

proposed action should it be implemented.

42 U.S.C. § 4332(2)(C).

Section 4332(2)(E) of the National Environmental Policy

Act (NEPA) provides, in relevant part, as follows:

[A]ll agencies of the Federal Government shall

. study, develop, and describe appropriate

alternatives to recommended courses of action in

any proposal which involves unresolved conflicts

concerning alternative uses of available resources.

42 U.S.C. § 4332(2)(E).

Section 706 of the Administrative Procedures Act provides,

in relevant part, as follows:

To the extent necessary to decision and when

presented, the reviewing court shall . . . (2) hold

unlawful and set aside agency action, findings,

and conclusions found to be — (A) arbitrary,

capricious, an abuse of discretion, or otherwise

not in accordance with law...

5 U.S.C. § 706.

STATEMENT OF THE CASE

This highway-sprawl case demonstrates the necessity for

this Court to resolve whether the command of the National

Environmental Policy Act to fully explicate the environmental

impacts of, and alternatives to, major federal actions, is truly

enforceable because it illustrates the widespread confusion as

to how judicial review can effectively review a project agency

presentation. The law is in disarray. This case presents a glaring

instance where non-record information was not explicated, and

information unfavorable to the agencies’ intentions was

suppressed and excluded; and judicial review was conducted

without the benefit of any evidentiary opportunity to demonstrate

the illegality of the Agency action, due to the lower courts’ belief

that evidence is not permitted, even if it is the only way to obtain

reasonable disclosure and determine good faith where critical

information was brought to the surface and/or created after the

agency action was taken. In this specific case, this conduct led

to the approval of the impact statement and construction of a

$300,000,000 highway project by the Federal Highway

Administration (“FHWA”) without consideration by the agency

of the effects on the community, petitioner, Buckingham

Township, Bucks County, Pennsylvania.

How the Federal Question Was Presented

Jurisdiction was invoked under 28 U.S.C. § 1331 to secure

review under Section 706 of the Administrative Procedures Act,

5 U.S.C. § 706, of action under NEPA, 42 U.S.C. § 4332.

In addition, a request to add supplementary state issues by

amendment under 28 U.S.C. § 1367 was made when the State

moved to intervene.

Statement of Facts

Route U.S. 202 is a historic two lane highway between

Wilmington, Delaware and Portland, Maine. It runs through

Buckingham. Historic Bucks County is an original William Penn

a a ee

county. Although the Township has experienced massive

development over the last decade, a portion retains the historic

character of 18" century English farm country, and as such, is

an internationally known tourist destination.

Route 202 runs through Buckingham Township as a two

lane road. Just south of Buckingham, FHWA proposes a new

nine mile four lane segment of a 202 expressway (Section 700)

terminating (with a connector) .5 mile short of the Buckingham

line. In 1996, FHWA released a draft environmental impact

statement (“DEIS”) (primarily drafted by PennDot) regarding

Section 700, purporting to describe the environmental impacts

and alternatives of the proposed expressway. Buckingham was

intentionally excluded from the DEIS because “we don’t want

the opponents involved.” (Minutes of 12/6/90 Meeting,

App 004088a to 95a).' Alternatives which would avoid the

effects on Buckingham were also excluded. Buckingham

Township had also been excluded from the committee of local

public officials, which had monitored the progress of the EIS.

When Buckingham learned of the project scope from

reading the DEIS, Buckingham protested and submitted

voluminous documentation supporting Buckingham’s belief that

the highway would have a significant adverse effect on

Buckingham. (Buckingham 10/96 comments to DEIS, App 2-

00091 8a to 2-000932a). The exclusion had been questioned by

the Corps of Engineers, the Bucks County Flanning

Commission, the Environmental Protection Agency, and other

agencies. (App 004148a to 50a). In response, respondents stated

they had prepared a traffic study which they stated, in the FEIS,

showed that Buckingham would not be significantly affected.

Concurrently they conceived and designed a transitional

intersection and lane expansion extending into Buckingham.

(App 004206a). They did not deny that major traffic congestion

would have significant environmental, adverse effects, nor could

1. Citations to “App” refer to the Appendix filed in the Third Circuit.

they, since they had themselves stressed such effects in the

communities where they asserted the road would alleviate such

effects. (FEIS, App 2-000453a to 2-000454a).

In finalizing the EIS, Respondent FHWA (1) decided to

call the new intersection an “independent project” (FEIS,

App 2-000548a), which was false (thus avoiding a modified

EIS process); (2) decided to continue to exclude the

environmental effects of the project on Buckingham, on

the ground “the roads in Buckingham can handle the traffic.”

(FEIS, App 2-000523a). Only after the FEIS was released did

they provide copies of the report on the traffic study to

Buckingham. The report characterized the “study” as a computer

“focused” application of a regional program. (App 2-003834a

to 3837a). i

Despite the NEPA requirement to address all practical

alternatives in the EIS, FHWA omitted from the alternatives

discussion an alternative had been preferred but that halfway

through the EIS process, had been deleted. The project was

converted from a “controlled arterial” (a four lane boulevard

with traffic lights) into an expressway. (FEIS, App 2-000195a

to 2-000196a). Instead, the name “new alignment alternative”

had been appropriated from the arterial to the expressway and

the controlled arterial had not been presented as an alternative.

Since the model was responsive to speed, the impact of this

conversion was to nearly double the predicted traffic on the

proposed road (the amount of which was not discussed in the

FEIS, App 3-000342a to 3-000349a), and therefore create

increases at the terminus in Buckingham. Thus, the initial agency

concurrences had been based on a lower volume, whereas the

higher volume was not presented, and the alternative with the

lower volume was excluded from the DEIS and FEIS.

After the record was closed, and this suit was pending, the

District Court ordered that the computer disks of the alleged

focused study be produced. The traffic engineer responsible for

the study then sua sponte produced an affidavit admitting that

‘virtually all the output numbers had been changed by him,

(Declaration of Thabet Zakaria, App 00448 1a), and therefore

did not represent a computer study. Analysis of the disk program

and data showed that massive changes had been made in the

input data and fictitious assumptions (set ups) had been used to

attempt to produce the desired result, thus further contradicting

the claim of a proper study. (See e.g., Affidavit of Anthony

Tomazinis, App 004529a to 35a).

After this was documented to the District Court in expert

affidavits and computer printouts, the agency then conducted

new studies and purported to show through these new studies

that the ultimate outcome would not be affected significantly.

However, the agency never disclosed the data or assumptions

underlying the results; only its interpretation. FHWA also

asserted it had conducted an independent study after the FEIS,

and the District Court relied on this, although it was only an

intersection analysis which assumed the lowered traffic volumes

in the discredited study.

In these circumstances, the Township filed several Motions

for Preliminary Injunction and for hearing, which the District

Court held until it granted summary judgment.

Despite being confronted with all these proofs, the District

Court granted summary judgment to the defendants. It refused

Buckingham’s requests to conduct an evidentiary hearing to

determine the effects on Buckingham an /or the good faith of

the agencies and the engineers in presenting the deceptive and

false information, and in hiding the arterial alternative and other

alternatives that would have been materia! if Buckingham had

been included in the study area scope. Instead, the District Court,

approving the project (Appendix B at 23, 25, 32-33), excoriated

Buckingham for seeking to block development (p.1), and being

“rancorous” (Appendix B at 32), while it commended the agency

ited AT I tee 6. i I ER Rt OL? St, Exe

for having presented a stellar study, reiterating the fact that the

EIS language had reflected the language requirements of NEPA.

In essence, the District Court opinion found that the agency had

filled in the proper boxes, and that since the project was

inevitable, in its view, failures of proper disclosure could be

ignored. The District Court justified its action in approving the

end result by stating that development is necessary, highways

are necessary to development, and it criticized Buckingham’s

attitude. (Appendix B at 1, 32-22).

On appeal, the Circuit Court held that the agency could

have been more “forthcoming” and urged it to do so in the future.

(Appendix A at 3). The Court acknowledged the serious nature

of the issues raised by Buckingham, but did not deal with them.

However, it endorsed the opinion of the District Court. The Third

Circuit did not explicitly address the issue of an evidentiary

hearing. —

REASONS FOR GRANTING THE WRIT

I. SUMMARY OF ARGUMENT

This Court’s action is required because:

1. This Court has stressed that NEPA was designed to

insure quality environmental decision making, precisely by

emphasizing and mandating the full explication, disclosure, and

analysis of environmental consequences of proposed projects, ©

and the comparative consequences of the alternatives. Florida

Power & Light Co. v. Lorion, 470 U.S. 729 (1985); Baltimore

Gas & Elec. Co. v. Natural Resources Defense Council,

462 U.S. 87, 89-90 (1983); Kleppe v. Sierra Club, 427 U.S. 390

(1976). Indeed, this Court has stressed that NEPA is essentially

a procedural means to accomplish that result: the statute depends

in its entirety on the full explication, and on robust exposure of

the facts. See Kleppe, 427 U.S. at 409.

Consistent with this Court’s mandate, many of the Courts

of Appeal have emphasized the critical need for full explication.

In complete contrast, the instant case turns its back on complete

explication, and focuses on the Court’s view that since

development is necessary, agencies should be allowed to proceed

with only paper or nominal compliance. In short, the lower

courts’ decisions in this case defeat this Court’s mandate,

inconsistently with the decisions in most circuits. By maintaining

this inconsistency, the decision of the lower courts herein permit

the substantive defeat of this Court’s holdings.

This Court has not previously had occasion to visit the issue

of the means to insure that the role that this Court defined

for NEPA is in fact achieved. Unless this case is reversed,

it will maintain a lower court policy in a few circuits to implicitly

consider whether the project is “good”, “necessary”, or

“reasonable”; and if the Court feels it is sueh, then to excuse

compliance with NEPA.

2. The case represents an example ofa split in the circuits

on the question whether or to what extent evidentiary hearings

are appropriate to review non-record administrative decisions

by project agencies. In this regard, several circuits permit

evidentiary hearings to supplement the record made by the

agency, in situations where the agency has a self-determined

record, no formal hearings, and no testimony, because there may

be issues as to the agencies preventing innocently or otherwise,

necessary information to be of record. The Third Circuit does

not do so.

This Court’s decision in Overton Park v. Volpe, 401 US.

402 (1971), contained language which has led to a

misinterpretation of the intent of this Court. The Court in

Overton stated that the ultimate question in reviewing an agency

decision was to focus on whether the secretary’s decision

was reasonable in light of the information available to him.

Uowbrthed ee "

OE Re Yt ety Nae ite ae

This naturally led to focus on what was before the secretary, as

the subject matter to be evaluated. However, in later cases, Camp

v. Pitts, 411 U.S. 138 (1973), and Florida Power & Light Co. v.

Lorion, 470 U.S. 729 (1985), the language was interpreted to

mean that the evidence should be so limited.

This creates a tremendous gap between what was before

the secretary on the one hand, and what is in the record on the

other hand. Because significant material may be excluded from

the record does not.mean it was not before the secretary.

Understanding the term “secretary” to be a figure of expression

for the agency decision makers, in particular, information that

was covered up, misstated, or simply excluded from the record,

becomes insulated from reviewing what was before the secretary,

by its exclusion from the record. Despite this, some courts, and

particularly the Third Circuit, have adopted a narrow, rigid rule

essentially prohibiting testimony, even where the testimony is

offered for the purpose of showing that additional information

before the secretary, i.e. suppressed knowledge or misstatements,

contradicted both what was in the record and what was in the

rationale for the decision.

In the context where significant agency actions have

tremendous impact on the future of the nation’s growth and

environment, it is essential that this confusion and conflict be

addressed and that this Court make it clear that focusing on

what was before the agency does not mean excluding evidence

contradicting what the agency chooses to put in the record.

If the law is allowed to remain as it is, NEPA cannct be

given the force of law, and administrative agencies are authorized

to water down and impose their own project centered policy,

despite the mandate of NEPA.

II. SUBSTANTIAL COMPLIANCE WITH NEPA’S

DISCLOSURE REQUIREMENTS SHOULD BE

REQUIRED

The NEPA area is one in which disclosure in the

administrative record is itself a congressional mandate, since

NEPA as determined by this Court, is essentially a disclosure

statute. Vermont Yankee Nuclear Power Corp. v. NRDC, Inc.,

435 U.S. 519, 558 (1978). NEPA’s mandate to agencies is

“essentially procedural.” /d. In these circumstances, the statutory

standard of decision making is applicable to the disclosure

decision itself. This is not merely a technical requirement; it is

the essence of the statute that it requires the agency to explicate

all of the facts and make a good faith decision based on the full

explication, as this Court has repeatedly stated. See Baltimore

Gas, 462 U.S. at 98; Kleppe, 427 U.S. at 402, 410.

In the circumstances, where disclosure, explication, is the

essential mandate of the statute itself, compliance with that

mandate is essential, as this Court has stated. See Vermont

Yankee, 435 U.S. at 558. Accordingly, as this Court has enforced

this statute, many courts have recognized the importance of

implementing the requirement to, therefore, require that the

information be disclosed, and not be shoved under the rug.

Various other circuits have implemented this mandate

differently, as a result of which there is a serious conflict among

the circuits. Most circuits have expressed reinforcements to a

strict interpretation of the statute, e.g., City of Bridgeton v. FAA,

212 F.3d 448 (8th Cir. 2000), cert. denied, 531 U.S. 1111 (2001);

Carmel-By-The-Sea v. U.S. Dept. of Transp., 123 F.3d 1142 (9th

Cir. 1997); Dubois v. U.S. Dept. of Agriculture, 102 F.3d 1273

(1st Cir. 1996), cert. denied, 521 U.S. 1119 (1997); Hickory

Neighborhood Defense League v. Skinner, 893 F.2d 58 (4th Cir.

1990); NRDC v. Hodel, 865 F.2d 288 (D.C. Cir. 1988); Druid

een ag eeensaneentatnecesdden ee a ae eee

Hills Civic Association, Inc. v. Federal Highway Administration,

772 F.2d 700 (11th Cir. 1985); Trinity Episcopal School Corp.

v. Romney, 523 F.2d 88 (2d Cir. 1975).

The Third Circuit, however, has taken a more relaxed

approach, in which it has allowed inadequate action by the

agency to occur, where the Court concludes that the project result

(not the NEPA compliance result) is acceptable. This case is an

example of that relaxed approach. The District Court, in failing

to address the shortcomings of the EIS, offset any concerns by

referring to the need for the project, and denigrating the concern

of the Township for protection of its environmental quality, and

criticizing its opposition as “rancorous”’. (Appendix B at 32).

The Circuit Court more forthcomingly recognized the defects,

but endorsed the District Court’s opinion.

Similarly, in other cases, such as Township of Springfield

v. Lewis, 702 F.2d 426, 442 (3d Cir. 1983), the Third Circuit

has openly acknowledged that there was a failure to comply

with NEPA in failing to properly address an alternative, but,

based on litigation affidavits which it allowed to be considered,

submitted by the agency, it allowed the agency to rectify the

noncompliance in the Court.

The Third Circuit rule clearly allows agency non-

compliance with this mandate; it denigrates the statute and the

mandate of this Court; it allows the agency to evade compliance

by failing to place into the record information which it possesses

or is in its control, thereby frustrating the purpose of Congress

and the language of the statute as interpreted by this Court.

The statute states that the agency shail issue an environmental

impact statement, shall study the consequences, and shall study

the alternatives, and publish an impact statement, and allow

comment thereon. 42 U.S.C. § 4332(2)(C); See also CEQ

Regulations, 40 C.F.R. § 1502.14 (consideration of alternatives

“s the heart of the environmental impact statement’’).

As alluded to in the statement of the case, and must be

emphasized, this is not a case where there are dispositive fact

findings, however erroneous, against the Township. The District

Court, after having the case on renewed cross motions for

summary judgment for a year, made no findings of fact. Rather,

the District Court repeated the conclusory allegations of the

defendants’ EIS and Summary Judgment Brief, which touched

the bases, e.g., defendants properly studied the alternatives.

The Third Circuit characterized the issues as serious, and the

agencies as non-forthcoming. The facts critical to the issues

here, non-disclosure and mischaracterization cannot be seriously

contested. It is uncontested, for example, that agencies

determined not to study the effects on the petitioner township,

and at the time, stated that the reason was they did not want to,

involved petitioner’s opposition. (Minutes of 12/6/90 Meeting,

App 004088a to 95a). It is uncontested that the defendants

converted the previously preferred alternative controlled arterial,

with a twenty year projected volume of 35,000 vehicles to an

expressway, nearly doubling the volume, but borrowed the same

term “new alignment alternative” for both alternatives, never

comparing the two in the EIS or even identifying the controlled

arterial alternative in the alternatives comparison. (FEIS, App

2-000195a to 2-000196a). It is uncontested that defendants,

when confronted with further demand for consideration of the

effects of the roadway on the excluded area in 1996 by the

Township and the other federal agencies, prepared a traffic study,

which was falsely described as the outcome of a study conducted

pursuant to normal computer analysis procedures and generally

utilized data, all of which was false, and incorporated that

into the EIS, after suppressing an earlier version which did not

suit them, using inconsistent explanations. (App. 003812a).

It is uncontested that after the litigation was instituted, and the

District Court ordered the release of the underlying data and

assumptions, and then reordered it in the disk format, defendants’

traffic agency then, for the first time, filed an affidavit disclosing

that they had adjusted virtually every outfit of the study (later

argued that only two-thirds were adjusted by less than fifteen

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ome

percent), misleadingly omitting that most of the other third was

adjusted by more than fifteen percent, at oral argument in the

District Court. (Declaration of Thabet Zakaria, App 0048 1a;

Tr. App 006378a to 006379a). Nor is it contested that defendants,

when confronted with the fact that they had utilized fictional

highways and highway lanes which diverted projected traffic

from 202, i.e., segments, which reduced the volume which they

asserted would occur in Buckingham Township, then conducted

new rehabilitative studies in the District Court, the facts and

assumptions of which were never released. Nor is it contested

that even as late as the Court of Appeals, defendants advanced

a new factual argument relating to segments and other changes,

although there was no way at that time to demonstrate what

petitioner asserted, that the new claims were equally false.

Nor is it disputed that defendants, in 1997 before publishing

the FEIS, after conducting the falsified studies, decided to

continue to exclude the environmental effects in Buckingham

from the FEIS, at a meeting held to discuss what to do, and also

decided to utilize a preexisting different project, renaming it as

an independent project, to alleviate the Uffects of the project at

the Buckingham boundary (not addressing the effects moved

over to the next intersection), and falsely described it in the

EIS (FEIS, App 2-000548a) and continuing into the District

Court as an independent project, Buckingham Township, 157

F. Supp.2d at 463, only abandoning their characterization in the

Court of Appeals.

The issue is that the Third Circuit, in upholding the District

Court and acknowledging that “defendants were less than

forthcoming” and that the issues were “serious”, nevertheless

chose to overlook all of those defects, which effectively meant

that in no way could the EIS be described as an explication of

the environmental consequences of the project nor a discussion

of alternatives to the project, including the most practicable

alternative identified as such by the defendants (the arterial).

Either combined with the Third Circuit’s virtual prohibition

of the receipt of evidence, (see Section II, infra) in which the

Third Circuit is at the extreme end of an inconsistent spectrum,

or alone, the Courts’ willingness to accept this kind of

imperfection at a minimum entails confusion as to whether the

courts must defer to non-disclosure and misleading project-

biased EIS’s: although in most types of cases, this Court’s

jurisprudence and Rule 56 would require a tral, and yet the

deference to agencies is misapplied to a situation where the issue

is not the validity of the ultimate judgment, a matter as to which

the agency has wide, if not unreviewable discretion; but rather

the duty to disclose, a matter as to which the agency has little if

any discretion under NEPA.

The Third Circuit has placed itself at the far end of the

spectrum, which petitioner submits not only reflects a split in

the circuits, but runs the substantial probability of misapplication

of this Court’s substantive mandate in a way that would

undermine this Court’s policies on implementation of the statute,

or even, without exaggerating, completely negate not only the

statutory mandate, but this Court’s direction regarding its

implementation. These cases create not only inconsistency in

the application of the statute and inconsistency with this Court’s

mandates, but, perhaps most importantly as serious a crisis as

could be imagined in the confidence of the public and a deserved

crisis of confidence as to whether government is interested and

willing to comply with the law. It is a throwback, indeed, to

early common law, in which there was trial by swearing, and no

real process for determining the truth. Although the comparison

sounds ludicrous, to the public, there is no significant difference,

if agencies are permitted to comply with the statutory mandate

requiring a disclosure by simply asserting that they have studied

and disclosed, and presenting what they choose, and not actually

doing so. Therefore, not only is the Third Circuit rule an evasion

of the requirements of judicial review, but it is a formula for

disregarding not only truth, but even good faith in the purported

factual presentation. If there is no hearing and there is no

requirement of compliance of full disclosure by other means,

but rather a decision as to whether the project is good, and the

agencies have recited the proper mantra, then not only NEPA,

but the entire rule of law is threatened.

Instead, the courts are acting based on their independent

predilections concerning the wisdom — desirability of the project

(Appendix B at 23, 25, 33), an ironic turn in a situation where

this Court has prohibited exactly that result: it has commanded

that NEPA not be utilized to subject the substantive decision to

review.

III. A RULE IS NEEDED AS TO WHEN EVIDENCE IS

ALLOWED TO DETERMINE THE SIGNIFICANCE

AND GOOD FAITH OF OMISSIONS FROM THE

RECORD

Overton Park held that the focus of review of a decision is

the propriety of the administrator’s action. 401 U.S. at 416-17.

In Camp v. Pitts, 411 U.S. 138 (1973), this Court applied that

concept to hold that the de novo hearings are not appropriate in

the District court, although it was authorized to obtain additional

evidence to explain the administrative decision. Some Courts

of Appeals have taken this to limit testimony to “explanations”,

but they fail to understand that this Court’s admonition in that

Case was in the context of a situation where the record decision

had been found to inadequately explain the agency’s decision.

There was no issue of suppression, bad faith, or other matters,

and therefore no occasion for this Court to specify the

appropriate procedure in such cases. Moreover, the statement

in Camp v. Pitts that the “focal point for judicial review should

be the administrative record already in existence” is also directed

to a situation where the problem was the inadequacy of the

explanation tying the record to the decision; not issues present

in NEPA cases, and particularly in this case: where the record

had been improperly truncated, or improperly made, or made

in bad faith.

Pursuant to Camp v. Pitts, derived from Overton, further

extended in dicta in Florida Power & Light Co. v. Lorion,

470 U.S. 729 (1985), the district courts are now instructed that

they may not allow evidence except in rare cases. However,

Lorion does not identify, and the circuit courts have not been

consistent in identifying what these cases are. In Camp,

this Court held that the record should be the “focal point for

judicial review’, not that new evidence should not be admitted.

Camp, 411 U.S. at 142. Thus, it ‘s clear that this Court has left

room for the admission of evidence but when and whether the

proper case exists is not clear. One result has been to encourage

a proliferation of actions which involve “bad faith”, of which

this case is only one of the more extreme, along with Sierra

Club v. Corps. of Engineers, 701 F.2d 1011 (2d Cir. 1983) and

Sierra Club v. Corps. of Engineers, 772 F.2d 1043 (2d Cir. 1985),

the Second Circuit cases involving a highway project known as

Westway. The approach in the two cases illustrates both the

need for testimony and the need for this Court’s clarification.

In Westway, the District Court held two trials, the first of which

disclosed that the defendant Corps of Engineers had knowingly

concealed evidence that there was a serious impact of the

proposed project on the environment, and the second of

which showed that the studies on remand had again in a different

way concealed the adverse environmental impacts. The Second

Circuit on appeal from the second hearing, admonished

_ the district judge to rein in its trial. Sierra Club, 772 F.2d at

1052-53.

Other circuits have taken a varying and inconsistent

approach, which has caused inconsistent outcomes in different

circuits.

Like the Third Circuit, the Seventh Circuit has stringently

restricted the use of evidence. See Cronin v. United States -

Department of Agriculture, 919 F.2d 439 (7th Cir. 1990). It held

that the district court should conduct an evidentiary hearing only

in “an emergency.” Jd. at 444.

The First Circuit has been more open to evidence.

Trying to respect Camp and Lorion, however, it has focused on

using evidence as explanation, rather than to determine facts in

an apparent effort to respect their apparent interpretation of this

Court’s decision in Lorion. Airport Impact Relief, Inc. v. Wykle,

192 F.3d 197 (1st Cir. 1999); Sierra Club vy. Marsh, 976 F.2d

763 (1st Cir. 1992).

The Second, Ninth, and Fourth Circuits have been even

more open to evidence in these cases, sometimes for broader

reasons beyond explanation. See National Audubon Society v.

Hoffman, 132 F.3d 7 (2d Cir. 1997); County of Suffolk v.

Secretary of Interior, 562 F.2d 1368 (2d Cir. 1977), cert. denied,

434 U.S. 1064 (1978); National Audubon Society v. U.S. Forest

Service, 46 F.3d 1437 (9th Cir. 1994); Webb v. Gorsuch,

699 F.2d 157 (4th Cir. 1983). In County of Suffolk, the Second

Circuit explained:

[I]n NEPA cases ... @ primary function of the

court is to insure that the information available to

the decision-maker includes an adequate

discussion of environmental effects and

alternatives, which can sometimes be determined

only by looking outside the administrative record

to see what the agency may have ignored ...

Generally . . . allegations that an EIS has neglected

to mention a serious environmental consequence,

failed adequately to discuss some reasonable

alternative, or otherwise swept “stubborn

problems or serious criticism under the rug,” raise

issues sufficiently important to permit the

introduction of new evidence in the district court

County of Suffolk, 562 F.2d at 1384-85 (citation omitted).

The effect of the Second Circuit’s decision in County of

Suffolk has been described by a commentator as follows:

County of Suffolk laid the groundwork for wide

acceptance of plaintiffs’ use of extra-record

evidence in challenging agencies’ compliance with

NEPA. The use of evidentiary trials and hearings,

expert witnesses, and expert affidavits and other

evidentiary documents challenging agencies’

environmental reviews has become commonplace

in NEPA cases, especially in those circuits that

are most familiar with NEPA. The rationale behind

courts’ acceptance of extra-record evidence,

however, is rarely fully articulated. A few circuits

have followed the reasoning of Suffolk explicitly.

Many circuits, however, allow evidence

inconsistently or under broader theories that go

beyond the confines of NEPA. Some circuits seem

to accept extra-record evidence in NEPA cases

almost as a matter of course.

Susannah T. French, Judicial Review of the Administrative

Record in NEPA Litigation, 81 Cauir. L. Rev. 929 (1993).

This law is consistent with Overton. But Suffolk pre-dated

Lorian, and courts, such as the Third Circuit, need

clarification.

With the exception of Westway and the present case, none

of the decisions deals explicitly with the District Court’s use of

trial to make factual findings as to good faith. Yet this Court’s

Overton decision, and cases of this Court in other areas show

that good faith is an implicit or explicit requirement, and that

evidence is necessary in cases where no formal record has been

developed before the agency, and the agency can pick and choose

what it submits as having been before the secretary.

It is clear, therefore from the confused nature and varying

responses by the courts of appeal to the problem of inadequate

disclosure and the reasons for inadequate disclosure in the NEPA

cases (not, as in Camp, inadequate rationale tying the record to

the decision), that an evidentiary hearing may be necessary, and

“the focal point for judicial review” is not limited to the

administrative record submitted by the agency, but the question

as to whether the self-limited administrative record already in

existence is itself the result of a fatal violation of the statutory

mandate, which is to have a substantially complete record in

existence, adequately exploring, identifying, and analyzing the

environmental impacts of and the alternatives to the proposed

action.

In considering the need for a clearer rule, it is significant

that the initial declaration of Overton, that the Secretary’s

decision be the focus, and that the record be supplemented as

necessary, morphed through Camp (a per curiam decision) and

Lorion into differing degrees of restriction without benefit of

an actual issue of record manipulation. Without\such an actual

Case raising the issue, it seems no more than administratively

efficient, as was suggested in both Camp and Lorion, to review

a packaged record. However, when involving an agency which

is not regulatory in nature, but project oriented, such as the

FHWA, this line of thinking becomes dangerous if not indeed

unrealistic. It is one thing to assume that a commission (Lerion)

or a bank regulator (Camp) will fairly compile a record; it is

another thing to definitely assume that a project oriented agency

will do so. In fact, both as written and as interpreted by this

‘Court, NEPA represents a finding of the need for a specific

mandate to explicate the data in contrast to the fact that with

respect to the controller or bankruptcy, there is no command to

make and distribute a draft complete record for comment. In

fact, although the issue of disclosure was not in question in

Lorion itself, the history of the agency at issue in Lorion

coincidentally provides the most stark example of the need for

a different rule where an agency is in the essential conflict

position, which is a major underpinning of the NEPA mandate

insistence on disclosure to avoid bias. The very combination of

project orientation and regulation in the Atomic Energy

Commission was assigned a critical portion of the blame for

inadequate safety measures (a project agency’s unwanted

downside) in nuclear regulation, leading, most importantly, to

the division of the project oriented functions and the regulatory

functions through the creation of the Nuclear Regulatory

Commission and the energy department. Pacific Gas and

Electric Company vy. State Energy Resources Conservation

& Development Commission, 461 U.S. 190, 122 (1983).

“The evident desire of Congress to prevent safety from being

compromised by promotional concerns.”

This is reflected, indeed, in the language of this Court in

upholding the importance of the NEPA mandate of disclosure,

see Kleppe, 427 U.S. at 409; Marsh, 490 U.S. at 371; surely a

needless gesture if it were not for the proclivity of project

oriented agencies to neglect or deny public or self awareness of

the environmental effects of the projects, absent compliance

with the statute. In this instance, it is naive, or uncaring to

preclude the challenger from proving that the agency suppressed

highly relevant and significant information from the record.

At a minimum, the uniformity — consistent in administrative

decision making; despite its importance, is defeated.

See Dickinson v. Zurko, 527 U.S. 150, 154 (1999).

In short, a decision specific to one subject of the judicial

review of administrative action and the procedural approach to

that action in the reviewing Court, Camp is not appropriately

applied as if centrally relevant or even controlling to review of

a different nature in a different situation, i.e., where the focus is

not on the adequacy of the explanation; but rather the compliance

with the statutory mandate to actively search for all impacts

and adequately address and analyze them, and also the

alternatives.

The necessary standard in these circumstances is to allow

the district court to receive evidence to establish whether the

appropriate true material is in the record, and if not, why it was

not disclosed, was not analyzed, and why instead other false

data were substituted, so that the reviewing court may determine

whether the agency met the disclosure standard and conducted

a good faith effort to comply with NEPA, or whether it

intentionally, or negligently failed to do so.

Thus, the pernicious effect of the Third Circuit approach

of relaxed compliance with NEPA’s procedural compliance

described, Part I supra, is magnified and compounded by another

practice: the most restrictive of all the circuits in refusing

to allow challenger testimony. Despite the fact that there

is no opportunity to make a formal record before the agency,

with no opportunity to cross-examine, and no opportunity

to respond through testimony to materials submitted to a

District Court, the Third Circuit rule consistently exercises

judgment regarding the substance of the matter and the evidence

(e.g. “no demonstration of bad faith” (Appendix B at 33)).

Where the critical issue involves, as here, not only the

adequacy of the last best affidavits of the agency, in explicating

the facts, analysis, and conclusions; and thus the good faith of

the agency, i.e., the motivation behind the coverup and

falsification, the difference among the circuits on this subject

of accepting evidence becomes more critical. As interpreted by

this Court, the statutory mandate clearly depends on enforcement

of the explication obligation. It requires that the agency be

reviewed to ensure that the facts are explicated. NEPA does not

merely require the agency to discuss and consider the

environmental effects; it is requested to publish all the data so

that everybody can see it. Exposing it to the light of day is

necessary. This Court has interpreted the statutory mandate as

such. Marsh v. Oregon Natural Resources Council, 490 U.S.

360, 371-72 (1989) (broad dissemination of information is

mandated by NEPA).

Here, the “secretary” specifically made a conscious decision

to exclude Buckingham impacts at the beginning of the EIS

study process; and later made an explicit decision to convert

the leading alternative to an expressway thus nearly doubling

the traffic and the impact, without including the arterial in the

EIS as an alternative, which had the obviously intended effect

of avoiding outsiders’ opportunity to choose between the two

alternatives, despite the specific rule to display the alternatives

and give substantial consideration to each one (flowing from

the separate requirement of alternative consideration in NEPA

Section 102(2)(E)). See Kleppe, 427 US. at 398.

_ Further, the circumstantial evidence clearly shows prima

facie that after the issue of effects on Buckingham was raised

in the DEIS, the agency conducted a traffic study, shoved it

under the rug when it was not satisfactory initially, later

mischaracterized the initial study as “an interim’, or incomplete,

or “four of fifteen” iterations, when it was discovered, and after

it had been modified, and truncated, falsified, and issued it in

falsified fashion, in the FEIS; and again decided to exclude

Buckingham impacts from the EIS, while developing a

mitigation measure actually in Buckingham, and falsely

characterizing it as an independent project so as to again

avoid dealing with the impacts in Buckingham (and combining

the project or issuing an EIS on the mitigation measures).

Singly and certainly cumulatively, these facts ic true negate the

agency’s good faith, where Buckingham fully documented each

of the foregoing events. The district court said that nothing had

been shown by way of bad faith, and this could only have meant

that Buckingham did not have evidence that this pattern of

misstated and suppression represented subjective evil intent;

but the facts, under normal standards of summary judgment,

clearly require an opportunity for evidentiary hearing before

reaching that conclusion. Yet, following Third Circuit practice,

the District Court, and the Court of Appeals by adoption in its

characterization, no hearing could be held. Clearly, the Third

Circuit has created a rule that is pernicious and unacceptable,

and inconsistent with this Court’s mandate and other circuits,

that will eviscerate the statutory mandate.

IV. THE EFFECT OF THE PRESENT THIRD CIRCUIT

RULE IS SIGNIFICANTLY ADVERSE

The message that this case and others like it send to the

other circuits is that this Court’s interpretation of NEPA as

mandatory is merely precatory: that an agency may circumvent

NEPA by simply not disclosing what it chooses not to disclose,

by misrepresenting what it is required to review or disclose,

and by simply reciting the mantra of statutory compliance, while

in reality, negating statutory compliance. To the extent that-the

Third Circuit application enables agency practice in the Third

Circuit, it is a license to negate NEPA, which is inconsistent

with the rule in other circuits, as well as with this Court’s

mandate.

Through its duality of softening the mandatory disclosure

requirements, and its refusal to allow the District Courts to take

evidence regarding the circumstances of cover ups, the Third

Circuit creates an essentially non-reviewable agency action,

clearly contrary to the repeated decisions of this Court. Other

circuits have not fallen into this trap, but there is a sufficient

confusion, and clear inconsistency, that review, clarification and

direction from this Court is necessary. Although NEPA is

procedural, the requirements of the statute for disclosure acquire

significance beyond the hope for agency good faith consideration

of the results, to the extent they are adopted by the agency in

independent categorical statutory regulations, or statutory

requirements for consideration of the matters. Thus, for example,

as applicable here, the FH WA regulations require consideration

of the matters addressed in the EIS, in certain sections of the

highway regulations. Thus, the disclosure requirements are

enforceable not only through the good faith of the agency,

but also through independent agency regulations. Therefore, it

is all the more significant that the disclosure requirement be

actively enforced.

Ironically, the district court in negating bad faith asked

rhetorically why an agency would forego a superior project

(Appendix B at 33), thus demonstrates why stricter review and

NEPA itself is needed: what may be superior for the agency

may be less desirable if the environmental considerations are

factored into the equation.

As this Court has repeatedly stressed, that laws without

full and necessary powers to police are meaningless to protect

the citizens. It does not in any way entail the suggestion that

agencies are prone to bad motives to recognize that the failure

to enforce the NEPA disclosure rule is an invitation to negate

inconvenient restrictions. (It is not necessary for this Court to

find that the facts were as asserted and sworn to by the Township

expert consultant; it is only necessary that the Court accept the

uncontested fact that petitioner presented substantial evidence

to that effect, which was substantially confirmed, and that there

has to be a procedure for the resolution of such issues).

If a remand is the required procedure, in the case where there is

substantial issue of fact, that must be asserted; petitioner’s

alternative request for that procedure was not granted either.

V. ELEVENTH AMENDMENT IMMUNITY SHOULD

NOT APPLY, AFTER LAPIDES, TO ASTATE THAT

INTERVENES

In the district court here, the state by its Secretary of

Transportation, was permitted to intervene on his request.

Petitioner was then permitted to amend to assert state law claims,

violation of state highway and environmental laws.

(App 000483a, 000585 to 000589) Then, however, based on

the Eleventh Amendment, the Court granted the state’s motion

for Partial Summary Judgment, relying on Ford Motor Co. v.

Dept. of Treasury, 323 U.S. 459, 467 (1945) (Appendix C).

The Eleventh Amendment immunity issue is very current.

It was twic> before this Court in the 2001 term. In Lapides v.

Board of Regents of University System of Georgia, 535 U.S. __

(2002), the Court decided that the Eleventh Amendment

immunity does not apply to state law issues where the state has

removed the matter to the federal court. This court did not

address the same issue where the state has intervened in an action

already pending in federal court. Moreover, even more recently

in Verizon Maryland, Inc. v. Public Service Commission of

Maryland, 122 S. Ct. 1753 (2002), the opinion for this court

left open the issue whether direct action against the state in a

situation where no damages are sought is permissible (relying

on Ex Parte Young to permit suits against the officer).

The issue of the effect of voluntary intervention thus left

open and/or undecided in this court are squarely involved in

this case, and this case presents a need and an opportunity to

clarify issues not determined in those cases. The same

considerations; unfair litigation advantage, which were

dispositive in Lapides, were achieved by the state in this case.

Indeed eighteen months later, the district court gratuitously held

that the state law was satisfied. (Appendix B at 13 ). In this

case, the state official, acting as the state, had voluntarily

intervened to defend the FHWA action, which it had advocated

and written. The District Court agreed with most of the circuits,

that a state official covered by Ex Parte Young could intervene

to address the federal issues, while retaining Eleventh

Amendment immunity from jurisdiction of the state law claims.

Intervention in a proceeding in the federal court is different than

removal, and therefore, clarification of Lapides by this court is

required. As the law stands, in the Third Circuit and others, a

state or its officials may not remove to the federal courts without

making themselves liable to have the federal court determine

state law issues; however, a state official may intervene in a

federal court proceeding and block the determination of those

issues.

CONCLUSION

For the foregoing reasons, Buckingham Township

respectfully requests that the Petition for Writ of Certiorari be

granted.

Respectfully submitted,

RosBert R. ELLiott

Counsel of Record

RosBertT J. SUGARMAN

3521 Prospect NW

Suite 500.

Washington, D.C. 20007

(202) 338-5835

Attorneys for Petitioner

: APPENDIX

APPENDIX A — MEMORANDUM OPINION AND

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

DATED AND FILED JANUARY 7, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-2673

BUCKINGHAM TOWNSHIP,

Appellant,

KEN WYKLE, HONORABLE, Administrator, Federal

Highway Administration, DAVID LAWTON, Chief of Planning,

Region 3 Federal Highway Administration, DELAWARE

VALLEY REGIONAL PLANNING COMMISSION

BRADLEY MALLORY, Secretary for the Department of

Transportation, Commonwealth of Pennsylvania,

Intervenor in District Court.

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 99-cv-00621)

District Judge: Honorable Jay C. Waldman

Argued October 30, 2001

Before: SLOVITER, NYGAARD, and AMBRO,

Circuit Judges

(Opinion filed January*7, 2002)

* * ok

Appendix A

MEMORANDUM OPINION

AMBRO, Circuit Judge

Buckingham Township appeals the District Court’s entry

of summary judgment for the defendant agencies in its suit

challenging their approval of an improvement to U.S. Route

202, Section 700 and the development of an interchange

at the intersection of Route 202 and State Route 313 (also known

as Pools Corner). The District Court wrote an excellent opinion

that thoroughly addressed each of the numerous issues raised

by Buckingham Township in its lengthy brief. We have nothing

to add to that Court’s fine opinion, and thus affirm.

This summary affirmance is not meant to imply

that Buckingham Township raised frivolous issues. Indeed, it

raised serious questions with respect to the procedures followed

by the agencies. For example, they could have done a better job

of apprising Buckingham Township of the progress of the

Section 700 and Pools Corner projects. Further, they could have

been more forthcoming in explaining adjustments to the data

generated by their computer models. While we believe that the

. District Court answered these concerns admirably, nonetheless

we encourage the agencies to keep Buckingham Township fully

in the loop during upcoming projects (and phases of current

projects) affecting Buckingham Township.

TO THE CLERK:

Please file the foregoing memorandum opinion.

/s/ Thomas L. Ambro

Circuit Judge

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-2673

BUCKINGHAM TOWNSHIP,

Appellant,

KEN WYKLE, HONORABLE, Administrator;Federal

Highway Administration, DAVID LAWTON, Chief of Planning,

Region 3 Federal Highway Administration; DELAWARE

VALLEY REGIONAL PLANNING COMMISSION

BRADLEY MALLORY, Secretary for the Department of

Transportation, Commonwealth of Pennsylvania,

Intervenor in District Court.

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 99-cv-00621)

District Judge: Honorable Jay C. Waldman

Argued October 30, 2001

Before: SLOVITER, NYGAARD, and AMBRO,

Circuit Judges

JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the Eastern District of

Pennsylvania and was argued on October 30, 2001.

Appendix A

On consideration whereof, it is now ORDERED AND

ADJUDGED by this Court that the judgment of the District

Court entered June 22, 2001, be and the same is hereby

AFFIRMED. Costs taxed against Appellant. All of the above

in accordance with the opinion of this Court.

ATTEST:

s/ [illegible]

Clerk

DATED: January 7, 2002

APPENDIX B — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA

DATED JUNE 21, 2001 AND

ENTERED AND FILED JUNE 22, 2001

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION

NO. 99-621

BUCKINGHAM TOWNSHIP,

HON. KEN WYKLE, ADMINISTRATOR,

FEDERAL HIGHWAY ADMINISTRATION,

DAVID LAWTON, CHIEF OF PLANNING, REGION 3,

FEDERAL HIGHWAY ADMINISTRATION, and

BRADLEY L. MALLORY, SECRETARY FOR

THE DEPARTMENT OF TRANSPORTATION,

COMMONWEALTH OF PENNSYLVANIA

MEMORANDUM

WALDMAN, J. June 22, 2001

I. Introduction

This case arises out of the proposed improvement of U.S.

Route 202, Section 700 (“Section 700”) and development.of

Appendix B

an interchange at Route 202 and State Route 313. Plaintiff is

concerned that peaceful and scenic Buckingham Township

in Bucks County will be spoiled if defendants are allowed to

proceed as planned.

As a federal aid project, the Section 700 project is subject

to various federal statutory requirements. In a 97 page

amended complaint, plaintiff alleges that defendants used |

falsified data and violated virtually every applicable statutory

requirement in planning and proceeding with the highway

project. Plaintiff specifically claims that defendants violated

requirements imposed by the Administrative Procedures Act

(“APA”), 5 U.S.C. §§ 701 et seq.; the Federal-Aid Highway

Act (““FAHA”), 23 U.S.C. §§ 109(a)(2) & (h), 134, 135;

the National Environmental Policy Act (“NEPA”), 42 U.S.C.

§§ 4321 et seq.; the Clean Air Act (“CAA”), 42 U.S.C.

§§ 7506; and, the National Historic Preservation Act

(“NHPA”), 16 U.S.C. § 470f & 470h-2(f).'

Plaintiff also asserts state law claims under statutes

governing the duties of PennDOT, 71 P.S. § 512(a)(7) &

(b)(23), requiring PennDOT to assist local officials, 36 P.S.

§§ 670-901, and adopting an interstate compact on regional

transportation, 73 P.S. § 701.7

1. The alleged violation of each discrete requirement of each

pertinent statute is pled as a claim, resulting in a 14 count complaint.

2. 71 PS. § 512(a)(7) requires PennDOT to cooperate with other

appropriate agencies, political subdivisions and interested private

parties in coordinating plans and policies for the development of air,

ground and water commerce. Section (b)(23) directs the Department

_(Cont’d)

he eae to

ee Se ee

Appendix B

Presently before the court are defendants’ motion for

summary judgment and plaintiff’s motion for summary

judgment. The administrative record is voluminous and quite

technical in nature. It consists of thousands of documents

which consume twenty-one boxes. The parties have also

presented substantial submissions. Additionally, briefs were

filed on behalf of seventeen amici.

II. Standard of Review

Summary judgment generally is appropriate where there

is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Under the APA, the

court bases its decision on a review of the administrative

record. See 5 U.S.C. § 706; Florida Power & Light Co. v.

Lorion, 470 U.S. 729, 744 (1985). There are thus generally

no genuine issues of material fact in an APA case.

See Clairton Sportsmen's Club v. Pennsylvania Turnpike

Comm'n, 882 F. Supp. 455, 463 (W.D. Pa. 1995).

(Cont'd)

to consider the operation and use of existing transportation routes

and programs during construction and following completion of new

routes or programs. 36 P.S. § 670-901 directs PennDOT to assist

local officials with standards, methods and information related to

the construction, alteration, repair and maintenance of highways and

bridges. The interstate compact creates a mechanism to coordinate

regional transportation planning among several counties in

southeastern Pennsylvania and southern New Jersey.

3. Eleven amici, including two area municipalities, oppose the

project. Six amici, all area municipalities, support the project.

Appendix B

As a practical matter, “when a plaintiff who has no right

to a trial de novo brings an action to review an administrative

record which is before the reviewing court, the case is ripe

for summary disposition, for whether the order is supported

by sufficient evidence, under the applicable statutory

standard, or is otherwise legally assailable, involve matters

of law.” Bank of Commerce of Laredo v. City Nat'l Bank of

Laredo, 484 F.2d 284, 289 (Sth Cir. 1973); Citizens to

Preserve Overton Park, Inc. v. Volpe, 432 F.2d 1307, 1310

(6th Cir. 1970) (cases challenging administrative action ripe

for summary judgment), rev’d on other grounds, 401 US.

402 (1971). See also Lukens Steel Co. v. Kreps, 477 F. Supp.

444, 446 n.3 (E.D. Pa. 1979) (denial of summary judgment

in administrative action generally means opposing party is

entitled to judgment based on the record or a remand to the

agency is required because its action is not supported by the

record under applicable standards of review and further

proceedings are necessary. )

Ill. Historical and Factual Background

Section 700 of U.S. Route 202 extends from just south

of Pennsylvania State Route 63 in Montgomery Township,

Montgomery County, to the Pennsylvania State Route 611

Bypass in Doylestown Township, Bucks County. This section

of highway is approximately nine miles in length and covers

9,100 acres. It crosses two counties and eight municipalities.‘

4. The counties are Bucks and Montgomery. The municipalities

are Upper Gwynedd Township, Lower Gwynedd Township,

Montgomery Township, New Britain Borough, New Britain

Township, Chalfont Borough, Doylestown Township and Warrington

Township.

SO A

Appendix B

In response to requests from local and county planners,

the Delaware Valley Regional Planning Commission

(“DVRPC”) recommended in a November 1989 report that

studies be commenced to address mobility deficiencies and

projected growth with respect to Section 700.5 In the

November 1989 report, the DVRPC concluded that the

“new alignment corridor” which had been recommended in

a 1968 PennDOT study regarding this section of highway

was still viable through lands mostly reserved for the highway

by local township actions.°®

In 1990, PennDOT initiated more detailed environmental

and preliminary engineering studies for Section 700.

PennDOT advertised and held four public meetings between

February 7, 1991 and December 13, 1994 concerning studies

of improvements to Section 700, prior to initiating the formal

environmental process.

Pursuant to NEPA and its attendant FHWA regulations,

the Federal Highway Administration (“FHWA”), as lead

5. The DVRPC is the designated metropolitan planning

organization for the Philadelphia region and has both state and local

government representation, including representatives from

Montgomery and Bucks Counties. The DVRPC was originally named

as a defendant and then dismissed by order of March 31, 2000.

6. The “new alignment corridor” represents one option for

improvement of Section 700. Plaintiff suggests that the improvement

of Section 700 is not “local” in nature but rather an attempt by

defendants, PennDOT, NJDOT and the DVRPC to transform Route

202 into a multi-lane regional superhighway to provide for commerce

and growth between New Jersey’s major interstate highways and

Interstate-76 at Valley Forge.

10a

Appendix B

agency, approved a draft Environmental Impact Statement

(“DEIS”) for circulation on July 10, 1996.’ The DEIS was

circulated to the public, and its availability was published in

the Federal Register on August 9, 1996. See 61 Fed. Reg.

41607-41608.

On September 12, 1996, PennDOT held an open hearing

at which members of the public were provided an opportunity

to comment on the DEIS. Plaintiff’s representatives were

among the numerous participants. PennDOT also held a

meeting directly with members of plaintiff’s Board of

Supervisors on September 19, 1996.

After seeking and receiving an extension of time to

submit comments, plaintiff submitted extensive comments

on the DEIS on October 11, 1996. In response to plaintiff’s

comments, additional traffic analysis was completed to verify

the accuracy of the prior analysis.

The final report of the additional traffic analysis was

documented in Supplement No. 4 which was finalized in

October 1997 and to which the final Environmental Impact

Statement (“FEIS”) expressly referred. This was available

for public review and comment. Supplement No. 4 was

provided to plaintiff on October 10, 1997.°

7. “Lead Agency means the agency or agencies preparing or

having taken primary responsibility for preparing the environmental

impact statement.” 40 C.F.R. § 1508.16.

8. A draft of Supplement No. 4 was prepared in February 1997.

It is virtually identical to the final document. It was provided to

plaintiff in August 1997.

Wrens naan site AYP ea 0 el

YI Bec Ones 3 eon eZ HY

lia

Appendix B

Plaintiff learned during this period that PennDOT was

also making plans to develop a highway interchange at Pools

Corer in Buckingham Township. PennDOT represents that

this is independent from the Section 700 project. Plaintiff

Suggests that it is a remedial measure to cope with traffic

which the Section 700 improvements would discharge into

Buckingham Township.

On October 8, 1997, PennDOT approved the FEIS for

circulation. On October 16, 1997, David Lawton, the FHWA

Region 3 Director of Planning and Program Development,

approved the FEIS for circulation. Hundreds of copies of

the FEIS were mailed to commentators, including plaintiff.

On November 14, 1997, notice of availability of the FEIS

was published in the Federal Register. See 62 Fed. Reg.

61111-61112. By letter of January 29, 1998 to the FHWA

Division Administrator, the Regional Deputy Director of the

Office of Environmental Programs advised that “EPA

believes that the highway construction and operation should

not provide additional insult to the environment” and stated

that “[w]e applaud PADOT and FHWA for [their] efforts” to

protect the environment.

On August 27, 1998, the FHWA Division Administrator

issued a Record of Decision (“ROD”) formally approving

the project. The FHWA filed the Administrative Record

(“the Record”) for the Section 700 project and the project at

Pools Corner which the FHWA had also approved following

environmental review.

Following initiation°of this action, the court on

November 19, 1999 ordered defendants to make the Record

12a

Appendix B

whole by “filing and providing to plaintiff all documentation,

correspondence, set-ups, assumptions, formulae, co-efficients

and other data concerning U.S. 202 Traffic Analysis for Section

700 Supplement No. 4 and DVRPC Responses to Buckingham

Comments 1-4 (April 1998), all communications between the

Pennsylvania Department of Transportation and the Federal

Highway Administration and within the FHWA regarding the

relationship between the Pool’s Corner project and Section 700,

and any version of Supplement No. 4 dated December 1996

which may exist.” On December 17, 1999, defendants

supplemented the Record pursuant to that order.

Pointing to statements of two DVRPC employees that

certain set-ups and assumptions ha. been discarded by the

DVRPC, plaintiff suggested that the Record was still incomplete.

Defendants responded that some of the set-ups and assumptions

from the traffic model used to conduct the analysis in

Supplement No. 4 were not available as they existed at the time

simply because the traffic model is a computer program which

is constantly revised in the ordinary course of business to

accommodate updated forecasting methodology, computer

technology, population changes and traffic-related data.

Defendants have persistently averred that the Record as

supplemented is the complete record before the FHWA at the

time it filed the ROD. W. Thomas Walker of DVRPC pinpointed

the data and documents sought by plaintiff in the Record.?

9. Dr. Walker explained how Supplement No. 4 could be x

replicated by a competent analyst using the TRANPLAN program in

conjunction with the “Network,” the “prototype Setups” and the trip

tables which were included in the December 17, 1999 filing.

a eee ae et eee? tee

Ce .atyt

eee >

l3a

Appendix B

‘he court ordered defendants to produce to plaintiff the

documentation, correspondence, set-ups, assumptions,

formulae, co-efficients and other data supporting Supplement

No. 4 in a computer diskette format prepared for use with

the TRANPLAN program; to produce to plaintiff a copy of

the TRANPLAN program and any instructions necessary for

running the program; and, to file sworn affidavits from

persons with direct knowledge verifying that defendants have

filed in the administrative record and produced to plaintiff

all documents, data and other pertinent information on which

the FHWA relied in creating the ROD or which served as the

basis for any information on which the FHWA so relied, and

detailing the nature of any assumptions, set-ups or related

data which had been irretrievably discarded or lost and the

reasons therefor. Defendants complied with that order.

IV. Discussion

As noted, the administrative record is voluminous and

quite technical, and the submissions of the parties are

.Substantial. While this has necessitated an exhaustive review,

encumbered further by the court’s prior lack of familiarity

with some of the technical methodology and terminology,

the court will confine itself herein to a summary of the

respective positions and corresponding evidence in the

Record. To discuss in detail each item in the Record or each

assertion, insinuation and argument in this highly contentious

litigation would be forbidding and require the razing of a

small forest to supply the paper needed for such a product.

l4a

Appendix B

A. Cognizable Claims

Many of the discrete claims asserted by plaintiff are not

cognizable.

The provision of the FAHA relied upon by plaintiff,

23 U.S.C. § 109(a)(2), particularly when read in the context

of the surrounding language, constitutes nothing more than

a general statement of policy which does not imply a private

right of action. See Jersey Heights Neighborhood Ass'n v.

Glendening, 174 F.3d 180, 186 (4th Cir. 1999). The FAHA

amendments in the Intermodal Surface Transportation

Efficiency Act (“ISTEA”) also do not authorize a private right

of action. See Allandale Neighborhood Ass’n v. Austin

Transp. Study Policy Advisory Committee, 840 F.2d 258, 265-

67 (Sth Cir. 1988); Sierra Club v. Pena, 915 F. Supp. 1381,

1390-91 (N.D. Ohio 1996), aff’d sub nom., Sierra Club v.

Slater, 120 F.3d 623 (6th Cir. 1997).

There is no private right of action under the citizen suit

provision of the Clean Air Act for the violation of the Act

alleged by plaintiff. See 42 U.S.C. § 7506(c); Conservation

Law Found., Inc. v. Busey, 79 F.3d 1250, 1260 (1st Cir. 1996);

American Auto. Mfrs. Ass'n. v. Cahill, 53 F. Supp. 2d 174,

186 (N.D.N.Y. 1999); City of Yakima v. Surface Transp. Bd.,

46 F. Supp. 2d 1092, 1099 (E.D. Wash. 1999).

There is similarly no private right of action under NEPA.

See Noe v. Metropolitan Atlanta Rapid Transit Auth., 644

F.2d 434, 436-39 (Sth Cir. 1981) (“[T]o the extent the

legislative history indicates any Congressional attitude, it

indicates a desire not to provide a remedy for private

15a

Appendix B

individuals who may be injured by a violation of NEPA”),

cert. denied, 454 U.S. 1126 (1981); Jersey Heights

Neighborhood Ass'n, 174 F.3d at 186 (no private right of

action for failure to prepare proper EIS); Public Citizen v.

United States Trade Rep., 5 F.3d 549, 551 (D.C. Cir. 1993),

cert. denied, 510 U.S. 1041 (1994) (same); Sierra Club v.

Penfold, 857 F.2d 1307, 1315 (9th Cir. 1988) (no private

right of action for failure to prepare supplemental EIS); Utah

v. Babbitt, 137 F.3d 1193, 1203 (10th Cir. 1998) (NEPA does

not provide private right of action and any claim for failure

to prepare proper EIS must be maintained under APA);

Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346,

1353 n.13 (9th Cir. 1994) (NEPA does not provide private

right of action to challenge sufficiency of EIS); Public Citizen

v. Office of U.S. Trade Reps., 970 F.2d 916, 918 (D.C. Cir.

1992) (same); Knowles v. United States Coast Guard, 924

F. Supp. 593, 599 (S.D.N.Y. 1996) (reclassifying NEPA claim

for failure to prepare EIS as claim under APA); Westlands

Water Dist. v. United States Dept of Interior, 850 F. Supp.

1388, 1411 (E.D. Cal. 1994) (same).

Insofar as defendants may have violated the standards

established by the FAHA, ISTEA, CAA or NEPA, however,

such conduct could be characterized as arbitrary, Capricious

or an abuse of discretion. The court will thus assess those

actions in considering the APA claim,

As plaintiff may obtain relief against defendants Wykle

and Lawion, plaintiff’s APA claim against defendant Mallory

clearly is not a claim “for which there is no other adequate

remedy.” See 5 U.S.C. § 704(a); New York City Employees’

Retirement Sys. v. SEC, 45 F.3d 7, 14 (2d Cir. 1995);

16a

Appendix B

Washington Legal round. v. Alexander, 984 F.2d 483, 486

(D.C. Cir. 1993); Gillis v. United States Dept of Health &

Human Svcs., 759 F.2d 565, 575 (6th Cir. 1985). Judgment

for defendant Mallory is thus appropriate on that claim.

In this circuit at least, a private right of action under

NHPA has been recognized. See Boarhead Corp. v. Erickson,

923 F.2d 1011, 1017 (3d Cir. 1991). The court will thus

separately consider plaintiff’s NHPA claim.

There is no private right of action conferred by the

interstate compact and there has in any event been no showing

that any signatory has violated the compact. The federal

defendants, of course, are not constrained by duties imposed

by state law on a state agency. The court has no authority to

review the compliance of state officials with state law and

accordingly dismissed by prior order the state law claims

against defendant Mallory. See Pennhurst State Sch. & Hosp.

v. Halderman, 465 U.S. 89, 120-12 (1984); Randolph v.

Rodgers, 170 F.3d 850, 859 (8th Cir. 1999); Blake v.

Papadakos, 953 F.2d 68, 73 n.5 (3d Cir. 1992); Fitzpatrick

v. Pennsylvania Dep t. Of Transp., 40 F. Supp. 2d 631, 635

(E.D. Pa. 1999). In any event, it is clear that PennDOT did

not disregard any duty imposed by 71 P.S. § § 512(a)(7) and

(b)(23) or 36 PS. §§ 670-901.

B. Administrative Procedures Act Claim

Under the APA, “[t]he reviewing court shall hold

unlawful and set aside agency action, findings, and

conclusions found to be arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C.

17a

Appendix B

§ 706(2)(A). The agency’s decision “is entitled to a

presumption of regularity.” Overton Park, 401 U.S. at 415,

91 S. Ct. 814. “[T]he court must consider whether the

decision was based on a consideration of the relevant factors

and whether there has been a clear error of judgment.” Jd. at

416. While the “inquiry into the facts is to be searching and

careful, the ultimate standard of review is a narrow one.” Jd.

The court’s review is limited to the whole administrative

record before the relevant agency at the time of its decision.

See 5 U.S.C. § 706; Overton Park, Inc., 401 U.S. at 420;

Higgins v. Kelly, 574 F.2d 789, 792-94 (3d Cir. 1978); Twiggs

v. U.S. Small Bus. Admin., 541 F.2d 150, 152-53 (3d Cir.

1976). However, “[a] document need not literally pass before

the eyes of the final agency decisionmaker to be considered

part of the administrative record.” Clairton Sportsmen's Club,

882 F. Supp. at 465. Pertinent information upon which

administrative decisionmakers may have relied may be

considered although not included in the record as filed. See

Higgins, 574 F.2d at 792-93.

The ultimate question is whether the Record supports

the FHWA’s decision and not whether a different decision

would have been better or might have been made with more

information. The court is not empowered to determine the

wisdom of relieving traffic congestion in one geographic area

by shifting some of the burden into another. See Overton

Park, 401 U.S. at 416 (reviewing “court is not empowered

to substitute its judgment for that of the agency”). See also

C.K. v. New Jersey Dep t of Health & Human Servs., 92 F.3d

171, 182 (3d Cir. 1996). That is a decision legally left to the

expertise of the FHWA.

18a

Appendix B

The APA so limits the role of the court because Congress

has determined that “the elements that make up such

decisionmaking are so diverse that they are consigned to officials

and agencies with specialized knowledge, experience, resources,

and mechanisms for broad public participation that a court does

not possess [and the courts] are not free to weigh the many

competing interests underlying these issues.” Calio v.

Pennsylvania Dept of Transp., 101 F. Supp. 2d 325, 328-29

(E.D. Pa. 2000). However, “[i]f the record before the agency

does not support the agency action, or if the agency has not

considered all the relevant factors, or if the reviewing court

simply cannot evaluate the challenged agency action on the basis

of the record before it, a court should remand to the agency for

additional investigation or explanation.” Society Hill Towers

Owners’ Ass'n v. Rendell, 20 F. Supp. 2d 855, 862 (E.D. Pa.

1998).

The Record consists of numerous interagency communications

and reports based on studies conducted by the FHWA and

PennDOT. This includes a Draft Environmental Impact Statement/

Section 4(f) Evaluation (“DEIS”); a Final Environmental Impact

Statement/Section 4(f) Evaluation (“FEIS’’); Historic Structures

Inventory and Determination of Eligibility Reports; Criteria

of Effect Reports; a wetlands report; noise reports; Congestion

Managements Strategies and Major Investment Study; a

Memorandum of agreement between FHWA and the Pennsylvania

State Historic Preservation Office; and, documents related to

studies regarding the Pools Corner project.'°

10. The parties have also submitted affidavits or declarations

of experts. Some are accompanied only by a photocopied or facsimile

signature and a submission of plaintiff’s retained expert Dr. Tomazinis

(Cont’d)

19a

Appendix B

1. FAHA and ISTEA

In Counts I, II, V and XII of its Amended Complaint,

plaintiff alleges that defendants failed to comply with planning

regulations and with the requirements for the Transportation

Plan and Program, the Congestion Management Analysis

(“CMS”) and the major investment study (“MIS”).

(Cont’d)

is replete with handwritten edits which appear to be made by the same

individual who scribbled handwritten edits in the body of plaintiff’s

“supplementation.” As no party has objected to the form of any affidavit,

the court will not reject any on that ground. See United States for

Use and Benefit of Austin v. Western Elec. Co., 337 F.2d 568, 574-75

(9th Cir. 1964). Additional substantive submissions, including expert

opinions and suppositions or inquiries about the mental processes of

the decisionmakers, however, are not cognizable absent “a strong

showing of bad faith or other improper behavior” on the part of the

agency. See Overton Park, 401 U.S. at 420; Society Hill Towers Owners’

Ass'n, 20 F. Supp. 2d at 863. There has been no such a showing. A party

may not undermine an agency decision even with an affidavit of

unquestioned integrity from an expert expressing disagreement with the

views of other qualified experts relied on by the agency, and a court

may not weigh the contrary views of such experts to assess which may

be more persuasive. See Marsh v. Oregon Natural Resources Council,

490 U.S. 360, 378 (1989); Price R. Neighborhood Ass'n. v. U.S. Dept.

of Transp., 113 F.3d 1505, 1511 (9th Cir. 1997). An agency is entitled to

select any reasonable methodology and to resolve conflicts in expert

opinion and studies in its best reasoned judgment based on the evidence

before it. See Hughes River Watershed v. Johnson, 165 F.3d 283, 289-

90 (4th Cir. 1999); Oregon Environmental Council v, Kunzman, 817

F.2d 484, 496 (9th Cir. 1987). As a practical matter, were it otherwise,

virtually every agency action involving expertise or technical analyses

could be obstructed by a party who engaged an expert willing to disagree

with the views or conclusions of the experts utilized by the agency.

20a

Appendix B

The FAHA, the ISTEA, and FHWA and Federal Transit

Administration (“FTA”) regulations require that federal

transportation agencies (the FH WA and the FTA), the MPO (the

DVRPC) and state transportation agencies comply

with an intricate program for transportation planning.

That program requires long-term planning (20 years), which

includes development of a Transportation Plan (“Plan”), and

short-term planning (3 years) on both a metropolitan and a state-

wide geographic scale, known respectively as a Transportation

Improvement Program (“TIP”) and a State Transportation

Improvement Program (“STIP”). See 23 U.S.C. §§ 134, 135.

Because the region at issue here — the Philadelphia

metropolitan area — contains a population greater than 200,000

persons, the area must both include a Metropolitan Planning -

organization (“MPO”) — the DVRPC — and be designated as

a Transportation Management Area (“TMA”). Designation as a

TMA means that a CMS must be prepared. Where, as here, the

TMA is in a nonattainment area for ozone or carbon monoxide,

the CMS must include consideration of reasonably available

strategies to reduce travel demand prior to adding single

occupant vehicle (“SOV”) capacity to the transportation

network. See 23 C.F.R. §§ 450.336(b)(1) & (2), 500.109(d)(1)

& (2).

Because Section 700 is a highway improvement of

~ substantial cost which is expected to have a significant effect

on factors such as capacity, traffic fle. and level of service,

and which was initiated but not completed when the MIS

regulations were issued on October 28, 1993, a MIS is necessary

and both the FHWA and the FTA must be consulted to determine

the precise MIS requirements to be applied to the project.

See 23 C.F.R. §§ 450.104, 450.318.

2la

Appendix B

Defendants complied with these requirements by

establishing for the relevant periods and the Section 700

project the necessary TIP, STIP, Plan, CMS and MIS. In

accordance with the statutory and regulatory provisions,

defendants and/or DVRPC considered as part of the Plan,

the TIP and the STIP various factors defining the scope of

the planning process;'' developed a public involvement

11. The statewide and metropolitan transportation planning

processes must provide for consideration of projects and Strategies

that will —

increase the safety and security of the transportation

system for motorized and nonmotorized users; increase

the accessibility and mobility options available to people

and for freight; protect and enhance the environment,

promote energy conservation, and improve quality of life;

enhance the integration and connectivity of the

transportation system, across and between modes, for

people and freight; promote efficient system management

and operation; and emphasize the preservation of the

existing transportation system. ,

23 U.S.C. §§ 134(f)(1), 135(c)(1). In addition, the metropolitan

planning process must provide for consideration of projects that will

“support the economic vitality of the metropolitan area, especially

by enabling global competitiveness, productivity, and efficiency,”

while the statewide planning process must provide for consideration

of projects that will “support the economic vitality of the United

States, the States, and metropolitan areas, especially by enabling

global competitiveness, productivity, and efficiency.” See 23 U.S.C.

§$§ 134(f)(1)(A), 135(c)(1)(A).

In any event, a failure of the responsible agencies to consider

any of these factors is not reviewable by the court. See 23 U.S.C. §§

134(f)(2), 135(c)(2).

22a

Appendix B

process as part of the Plan and the TIP which included

publication of planning goals and various studies on

population, employment growth, commuting patterns,

workforce distribution and housing forecasts, see 23 U.S.C.

§ 134(g)(4), (h)(1)(B); investigated various strategies to

reduce travel demand including traffic flow improvements,

carpooling, non-motorized programs, flexible work hours and

parking pricing controls; and, included Section 700 in the

Plan, the TIP and the STIP.

As required by the CMS regulations, defendants and the

DVRPC analyzed 36 travel demand reduction and operational

management strategies; analyzed all 15 such strategies

deemed reasonably available; determined that no one or

combination of the CMS strategies would address the needs

and purpose of Route 202; and, summarized the results in

the DEIS and the FEIS.'? The CMS identified an

implementation schedule, the agencies responsible for the

project and the funding sources as required.

Consistent with the MIS regulations, the DVRPC

consulted the FHWA and the FTA and performed a MIS in

conjunction with the other environmental analyses in the

project study. The MIS included a definition of the purpose

and need of the project, and consideration of numerous

alternatives including: no action; congestion management

strategies; transportation systems management; widening

existing U.S. 202; widening existing U.S. 202 with Chalfont

runaround; widening Upper State Road/Shady Retreat Road;

relocating U.S. 202 on new alignment; widening Upper State

12. Defendants nevertheless committed to a carpool/vanpool

program and traffic management program.

23a

Appendix B

Road with new alignment connector; widening Stump Road

with new alignment connectors; a relief corridor northwest

of U.S. 202; new alignment southeast of Stump Road; and,

mass transit. Following these analyses, the FHWA approved

and recommended for detailed study and inclusion in the

DEIS three build alternatives — widening Upper State Road/

Shady Retreat Road; relocating U.S. 202 on new alignment;

and, widening Upper State Road with new alignment

connector — as well as the no action alternative.

A MIS/CMS Committee, co-chaired by PennDOT and

the DVRPC, was established. Its members included

the FHWA, the FTA, the Southeastern Pennsylvania

Transportation Agency (“SEPTA”), the Montgomery and

Bucks County planning Commissions, the U.S. Army Corps

of Engineers, the EPA, the Pennsylvania Department of

Environmental Protection and various affected townships.

The MIS reviewed the public involvement process — four

public meetings, six project newsletters and more than 100

meetings with agencies and public officials — and considered

15 additional alternatives which were rejected because their

combined impact would be only a 4% reduction in vehicle

travel miles. The FHWA and the FTA concurred that the final

MIS satisfied the requirements of the MIS regulations.

It appears from the Record that defendants in fact

satisfied the MIS requirements and all pertinent requirements

of the FAHA and the ISTEA.

24a

Appendix B

2. NEPA

In Counts III, IV, VIII, X and XIII of the Amended

Complaint, plaintiff claims that defendants violated NEPA

by improperly excluding the Pools Corner project from the

Section 700 study area; inadequately projecting population;

improperly performing traffic analyses; failing to provide

plaintiff with an adequate opportunity to comment on the

Section 700 project; and, failing to consider alternatives.

The court will address plaintiff’s allegations and the portions

of the Record relevant thereto insofar as they pertain to the

evaluation of defendants’ actions under the APA.

NEPA “is primarily a procedural statute” which was

“designed to ensure that environmental concerns are

integrated into the very process of agency decisionmaking,”

Morris County Trust for Historic Preservation v. Pierce, 714

F.2d 271, 274 (3d Cir. 1983), and to inform the public that a

government agency properly considered environmental

concerns in its decision making process. Baltimore Gas &

Elec. Co. v. Natural Resources Defense Council, Inc., 462

U.S. 87, 97 (1983); Morris County, 714 F.2d at 275 (citing

Weinberger v. Catholic Action of Hawaii/Peace Educ.

Project, 454 U.S. 139, 142-43 (1981))."2 NEPA requires

only that agencies take a “hard look” at environmental

consequences before engaging in any major action.

See Society Hill Towers Owners’ Ass'n, 20 F. Supp. 2d at

865.

13. The United States Army Corps of Engineers, the United

States Environmental Protection Agency and the Pennsylvania

Department of Environmental Protection are cooperating agencies

for the NEPA environmental process. See 23 C.F.R. § 771.111(d).

25a

Appendix B

Plaintiff claims that defendants ignored NEPA

requirements by segmenting Section 700 and Pools Corner

to avoid consideration of the impact of the highway project

on plaintiff. It is clear from the Record, however, that

defendants’ determination of the scope of the Section 700

project and definition of the relevant study area were proper.

In determining whether defendants properly determined

the scope of the project and properly defined its study area,

the court has considered whether the project has logical

termini; whether the Section 700 and Pools Corner projects

have independent utility; and, whether the Section 700 project

restricts consideration of alternatives for reasonably

foreseeable transportation improvements within plaintiff’s

borders. See 23 C.F.R. § 771.11 1(f)(1)-(3). The court has also

considered whether the Section 700 project causes such a

significant increase in traffic in Buckingham Township that

the decision to approve that project would have been arbitrary,

capricious or an abuse of discretion.

The termini are logical. The intersection of Routes 202

and 63 is just south of major commercial malls ina township

confronting serious traffic problems. Route 611 is a major

crossroad adjacent to Doylestown which is a major regional

population center. Section 700 and the Pools Corner project

each have independent utility as each satisfies transportation

needs or corrects transportation problems without reference

to any other transportation project. The Record shows that

the Section 700 New Alignment Alternative promotes

transportation system linkage and consistency in highway

planning; will ameliorate anticipated congestion; improves

the likelihood that the roadway will meet future traffic

26a

Appendix B

demand, service demands (e.g., fire, police) and community

development pressures; and, enhances safety. The Record

demonstrates that the Pools Corner project would remedy

congestion, address safety concerns and improve the

roadway’s capacity for handling anticipated growth pressures

regardless of whether the Section 700 project is completed.'*

Section 700 does not restrict the consideration of alternatives

for reasonably foreseeable transportation improvements

within plaintiff’s borders.

The Record supports defendants’ contention that their

traffic projections and analyses regarding Section 700 were

appropriate. Defendants conducted a series of standard traffic

analyses of the project area and of the areas north and south

of that area, including Buckingham Township.'* The FHWA

14. Studies show that with no action Pools Corner would totally

fail by 2018.

15. Plaintiff necessarily attacks the traffic projections. It

suggests that defendants used fictional lanes in these analyses.

Defendants aver that plaintiff and its expert have misconstrued various

planning documents and what they describe as suspicious is nothing

more than a coding convention applied in those documents. Plaintiff

faults defendants for failing to split zones, however, it appears that

this was done only in a particular focused study and zones were split

in other areas. Plaintiff complains of “lost trips” which defendants

aver represent driveway usage which is never picked up. In any event,

these are insubstantial. Plaintiff points to an impedance number of

5.1 to suggest that traffic would be substantial enough to reduce speed

at peak times to 5.1 m.p.h. Speed, however, is not an output of the

Transplan program. Rather, various numbers which do not reflect

true highway speed are inputted to perform an array of theoretical

(Cont’d)

27a

Appendix B

considered the report of a consultant who conducted studies

independent of the DVRPC using alternative computer

analyses, a standard Highway Capacity Model and CORSIM

program. The expert verified that Section 700 would not

cause intolerable congestion north of the project area.

Plaintiff has shown nothing more about population than a

disagreement with projections reasonably derived from

Census Bureau estimates utilizing basic demographic data.

Defendants analyzed traffic by utilizing standard accepted

methods with persons of substantial expertise who have

provided sound explanations of what was done and why.

(Cont'd)

calculations. Plaintiff suggests that defendants did not set up a proper

model and used constant proportions rather than allowing the

computer to generate variables to improve statistical reliability.

Defendants aver that this is simply untrue and that they ran 15

iterations to maximize reliability. Their conclusion was confirmed

by additional analyses. Defendants forcefully refute plaintiff’s

claimed inability to replicate Supplement No. 4. They stress that if

the program utilized is properly set up and run with the same numbers

by an operator who correctly reads the numbers, the result must be

the same. They convincingly point to notations of the expert engaged

by plaintiff which suggest he did not understand or miscalculated

some of the key numbers. Plaintiff pounces upon the adjustment by

defendants’ expert of many of the traffic numbers from the computer

projections. Buttressed by their expert’s detailed affidavit, defendants

convincingly and logically explain that a computer program is simply

a tool and that it would be irresponsible to disregard other pertinent

data in making final projections. Seventeen of twenty-six numbers

or nodes were adjusted by 15% or less, within the normal range of

error. Moreover, most of these were adjusted upward based, inter

alia, on actual traffic counts. Other numbers were adjusted upward

even more to account for the addition of data reflecting traffic from

the Broad Street ramps.

28a

Appendix B

It appears that completion of Section 700 may increase

somewhat the traffic burden on Buckingham Township.

Defendants may lawfully determine, however, that some of

the traffic burden presently suffered within the Section 700

project area should be shifted.

The Record does not show that defendants’ decision to

pursue the Section 700 project would result in increased

congestion in the region or social, economic or environmental

impact of such a magnitude as to render the decision arbitrary,

Capricious or an abuse of discretion.

The Record also belies plaintiff’s claim that defendants

failed to provide it with an adequate opportunity for

involvement in the Section 700 project, as required by NEPA.

The Record supports defendants’ response that after preparing

the DEIS and before preparing the FEIS, the FHWA requested

comments on the DEIS, considered those comments and

responded to those comments, as required by the NEPA

regulations. See 40 C.F.R. §§ 1503.1, 1503.4. The FHWA

also widely publicized, conducted public hearings regarding

and requested comments on the FEIS, as required by

its regulations. See 23 C.F.R. §§ 771.111(h), 771.123(h)

& 771.125(g). The FHWA responded to all comments

submitted, including those of plaintiff and its expert,

Dr. Tomazinis. The FHWA distributed written materials

regarding the project to the public and conducted meetings

throughout the process with local elected officials, county

planning commissions and other regional planning

organizations, as well as Buckingham Township supervisors.

FHWA officials met personally with represeniatives of

plaintiff in Washington, D.C. at plaintiff’s request. It is clear

29a

Appendix B

from the Record that defendants complied with the NEPA

mandate that the FHWA engage in discourse with the public

prior to implementing Section 700.

Contrary to plaintiff’s assertion, the Section 700 EIS is

not deficient for failure to address all reasonable alternatives

to the project approved by FHWA. NEPA’s implementing

regulations require that an EIS “[r]igorously explore and

objectively evaluate all reasonable alternatives, and for

alternatives which were eliminated from detailed study,

briefly discuss the reasons for their having been eliminated.”

40 C.F.R. § 1502.14(a). See also Vermont Yankee Nuclear

Power Corp. v. Natural Resources Defense Council, Inc.,

435 U.S. 519, 551 (1978) (“{t]ime and resources are simply

too limited to hold that an impact statement fails because

the agency failed to ferret out every possible alternative”).

Concerned Citizens Alliance, Inc. vy. Slater, 176 F.3d 686,

705 (3d Cir. 1999) (“NEPA requires the defendants to

consider only ‘reasonable’ alternatives in the EIS”); Laguna

Greenbelt, Inc. v. United States Dept of Transp., 42 F.3d

517, 524 (9th Cir. 1994) (“[t]he range of alternatives that

must be considered in the EIS need not extend beyond those

reasonably related to the purposes of the project”).

As noted, as part of the CMS and MIS review processes,

defendants considered in detail three build alternatives and

a no action alternative. The alternatives deemed unreasonable

and thus considered in less detail include: a Transportation

Systems Management alternative which involved intersection

improvements such as traffic signals and turn lane additions

to increase capacity and efficiency, which defendants properly

found unreasonable given the projected lack of improvement

30a

Appendix B

or even degeneration of traffic congestion under the

alternative; the CMS alternatives including regional rail

improvements, park and carpool support programs and

installation of bicycle racks at rail stations, all of which

defendants properly found unreasonable as stand alone

alternatives given their 4% reduction in travel demand; and,

a Mass Transit alternative which defendants properly found

unreasonable given that it would accommodate only 4% of

the traffic anticipated in a No Action alternative.'® It appears

from the Record that defendants satisfied the NEPA

alternative analysis requirement.

Plaintiff also suggests that defendants should have

prepared a supplemental EIS in response to certain

information provided to them by plaintiff. The information

provided by plaintiff, however, was merely data which

16. Plaintiff suggests that defendants should have considered

the abandoned R-2 line as an alternative. Defendants, however, did

consider the R-5 line which was the best of the rail options and found

it was a bare improvement over no action. Plaintiff also faults

defendants for not considering as a reasonable alternative an arterial

roadway as proposed by DVRPC in a memorandum of February 3,

1989. As indicated in the memorandum, this early option was

recommended largely for reasons of expense. Moreover, except for

the grading of intersections, this option is substantially the same as

the new alignment with less impact on already heavily congested

Chalfont. Also, as discussed in the DEIS and the FEIS, an arterial

roadway would not reduce traffic on Route 202 and parallel roads as

much as the approved project. Interestingly, even in its early

memorandum, DVRPC recommended that any arterial roadway be

constructed in a manner which would permit a future upgrade to a

freeway north of Bethlehem Pike which includes the Chalfont and

Doylestown areas.

3la

Appendix B

defendants considered in Supplement No. 4. The Record

shows that defendants reviewed the population data and

arguments conveyed by plaintiff, conducted supplemental

analyses based on that information and determined that

the decision to pursue the Section 700 remained correct.

The Record supports defendants’ contention that a

supplemental EIS is not required.

3. Clean Air Act

In counts VI and VII, plaintiff claims phat defendants

failed to satisfy the conformity requirements of the CAA.”

The conformity analysis performed by the DVRPC as

MPO for the project appears in three TIPs and the Plan which

were approved by the FHWA and the FTA. The DVRPC also

completed a supplemental analysis which was submitted for

public comment and received none. The conformity analysis

Showed that the TIP and the Plan for the Section 700 project

would result in lower emissions of certain ozone precursors.

After reviewing the analysis, the EPA concurred with that

finding. In a letter confirming its view that the project would

not harm the environment, the EPA commended PennDOT

and the FHWA for their attention to environmental factors.

The DEIS for Section 700 and the Pools Corner project

analysis indicated that the carbon monoxide levels would be

less than standard and thus acceptable. It appears from the

Record that defendants satisfied the pertinent requirements

of the CAA.

17. To the extent that plaintiff raises a challenge to the 1997

conformity rules, defendants are correct that such a claim may not

be maintained here. See 42 U.S.C. § 7607(b)(1).

32a

Appendix B

B. National Historic Preservation Act Claim

Plaintiff’s direct claim under the NHPA is based on

defendants’ alleged failure to assess the effects of Section

700 on historic properties outside the study area, i.e., in

Buckingham Township." The Record establishes that, to the

contrary, defendants fulfilled their responsibilities under the

NHPA as to Section 700 and the Pools Corner project.

The NHPA “‘is primarily a procedural statute, designed

to ensure that Federal agencies take into account the effect

of Federal or Federally-assisted programs on historic places

as part of the planning process for those properties.” Society

Hill Towers Owners’ Ass'n, 20 F. Supp. 2d at 863 (quoting

Morris County, 714 F.2d at 278-79). So long as the effect on

18. The statute provides:

The head of any Federal agency having direct or indirect

jurisdiction over a proposed Federal or federally assisted

undertaking in any State and the head of any Federal

department or independent agency having authority to

license any undertaking shall, prior to the approval of

the expenditure of Federal funds on the undertaking or

prior to the issuance of any license, as the case may be,

take into account the effect of the undertaking on any

district, site, building, structure, or object that is included

in or eligible for inclusion in the National Register. The

head of any such federal agency shall afford the Advisory

Council on Historic Preservation established under part

B of this subchapter a reasonable opportunity to

comment with regard to such undertaking.

16 U.S.C. § 470f. ;

33a

Appendix B

the properties is considered, the agency consults the Advisory

Council on Historic Preservation (“ACHP”) and the agency

integrates the ACHP recommendations into the decision

making process, the regulations are satisfied. See 36 C.E.R.

§ 60.2 (establishing consultation requirement and noting that

“[{hJaving complied with this procedural requirement the

Federal agency may adopt any course of action it believes is

appropriate”); Concerned Citizens Alliance, 176 F.3d at 695-

96 (noting § 106 is a “stop, look and listen” provision that

merely requires an agency to acquire information before

acting).

Fhe Record shows that defendants identified historic

resources within the Section 700 project area and published

those identifications. Defendants then worked with

the Pennsylvania Historical and Museum Commission

(“PHMC”) and the ACHP to determine which properties

would be eligible for the National Register. Defendants

continued to cooperate with the PHMC until the PHMC

concurred with defendants’ findings regarding the effects of

the project on historic resources and both the PHMC and the

ACHP signed a Memorandum of Agreement for the project.

Defendants likewise conducted studies required by the

NHPA for the Pools Corner project. Defendants secured an

archaeological study of the area and completed a search for

nearby historic structures. The PHMC concurred with

defendants’ determination that the Pools Corner project

would have no effect on historic resources.

The steps taken by defendants constitute compliance

with the procedural requirements of the NHPA. See 16 U.S.C.

§ 470f; 36 C-F.R. §§ 60.2, 800.4.

34a

Appendix B

V. Conclusion

Increased development is an inevitable fact of life in

expanding suburban areas. It is not unusual for residents who

hoped indefinitely to maintain pristine surroundings

forebodingly to bemoan such development and, if aroused,

to do so tenaciously. At the same time, government is

expected to plan for and accommodate population growth,

commercial expansion and transportation needs. It is

ultimately the responsibility of the officials with appropriate

experience and expertise to weigh competing interests and _

make the often controversial decisions about how this is best

achieved, subject to a narrow standard of judicial review. As

noted, the “court is not empowered to substitute its judgment

for that of the [responsible] agency.” Overton Park, 401 U.S.

at 416.

Plaintiff’s opposition to the project at issue has been

rancorous and relentless. Plaintiff accuses defendants of

violating virtually every applicable statutory requirement.

In a never ending cycle, refutation by defendants is followed

by a “supplemental” submission with further accusations.

The rhetoric has been acerbic. Tangential documents not

included in the formal Record were “suppressed.” Rational

adjustments reflecting new population projections or other

data demonstrate “falsification.” Information allegedly

“hidden” is in fact contained in the administrative record.

A disputed traffic projection is not inaccurate but

“fraudulent.” Portions of documents are characterized as

sinister which when read in context are innocuous.

35a

Appendix B

Plaintiff posits treachery of a type that would require a

massive conspiracy among federal and state officials. Plaintiff

has not, however, actually demonstrated bad faith or

impropriety. When asked why these officials would engage

in such nefarious conduct, plaintiff’s counsel could only

speculate that perhaps they had become “wedded” to the

project. There is no explanation, however, of why defendants

would wed themselves to a project they knew to be deficient

despite superior alternatives.

Even plaintiff acknowledges that some form of project

is necessary to address serious traffic issues in the area.

Plaintiff conceded at oral argument that upon further study,

everyone “may well come back with something similar to

what we have” and hypothesizes a Doylestown to New Hope

expressway. This may eventuate. Most highway construction,

however, is necessarily undertaken in logical phases.

It appears from a review of the administrative record at

the time of decision that defendants complied with applicable

law and that the decision was based on consideration of the

relevant factors. The administrative determinations and

decision were in accordance with law and were not arbitrary

or capricious. There was no abuse of discretion or clear error

of judgment. In these circumstances, the court is constrained

to defer.

Accordingly, defendants’ motion will be granted.

An appropriate order will be entered.

36a

APPENDIX C — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF PENNSYLVANIA FILED FEBRUARY 25, 2000

AND ENTERED FEBRUARY 28, 2000

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION

NO. 99-621

BUCKINGHAM TOWNSHIP

HON. KEN WYKLE, ADMINISTRATOR,

FEDERAL HIGHWAY ADMINISTRATION,

DAVID LAWTON, CHIEF OF PLANNING,

REGION 3, FEDERAL HIGHWAY ADMINISTRATION,

DELAWARE VALLEY REGIONAL

PLANNING COMMISSION, and

BRADLEY L. MALLORY, SECRETARY FOR THE

DEPARTMENT OF TRANSPORTATION,

COMMONWEALTH OF PENNSYLVANIA

ORDER

AND NOW, this 25th day of February, 2000, upon

consideration of intervening defendant Mallory’s Motion

for Partial Judgment on the Pleadings (Docs. #27) and

37a

Appendix C

plaintiff’s response thereto, because although at the time

defendant Mallory intervened the original complaint in fact

set forth a state law claim that the Delaware Valley Regional

Planning Commission had violated 73 P.S. § 701 which he

appears inadvertently to have overlooked, PennDOT is a state

agency for the purpose of Eleventh Amendment immunity,

see Halstead v. Motorcycle Safety Found., Inc., 71 F. Supp. 2d

464, 470 n.3 (E.D. Pa. 1999); Fitzpatrick v. Pennsylvania

Dep t. of Transp., 40 F. Supp. 2d 631, 635 (E.D. Pa. 1999);

because neither Congress nor the Pennsylvania legislature

has abrogated PennDOT’s Eleventh Amendment immunity

as to the pertinent state law claims, see 1 Pa. Cons. Stat.

§ 2310; 42 Pa. Cons. Stat. §§ 8521 (b), 8522 (a) & (b);

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

100, 121 (1984); Randolph v. Rodgers, 170 F.3d 850, 859

(8th Cir. 1999) (Eleventh Amendment precludes federal court

from ordering state officials to conform their conduct to state

law); Blake v. Papadakos, 953 F.2d 68, 73 n.5 (3d Cir. 1992)

(“federal courts have no jurisdiction to review state officials’

compliance with state law’); because although “a State’s

voluntary intervention in a federal court action to assert its

own claim constitute[s] a waiver of the Eleventh

Amendment,” Wisconsin Dept. of Corrections v. Schacht,

524 U.S. 381, 395 (1998) (Kennedy, J., concurring); Gardner

v. New Jersey, 329 U.S. 565, 574 (1947) (state asserting own

monetary claim), Eleventh Amendment immunity is not waived

as a matter of course upon intervention particularly where

intervention is defensive, see Missouri v. Fiske, 290 U.S. 18,

25 (1933); Jn re Secretary of Dept. of Crime Control, 7 F.3d

1140, 1148 n.6 (4th Cir. 1993) (state iritervention to contest

court’s jurisdiction to order payment of judgment did

not constitute waiver of Eleventh Amendment immunity),

38a

Appendix C

cert. denied, 511 U.S. 1109 (1994); Neifeld v. Steinberg,

438 F.2d 423, 431 n.17 (3d Cir. 1971) (“One who comes

into court seeking relief against the plaintiff by cross-bill or

counter claim and actively presses his claim thereby invokes

the court’s jurisdiction in the case so that he cannot thereafter

question the authority of the court to pass upon all questions

raised between himself and his adversary’); College Savs.

Bank vy. Florida Prepaid Postsecondary Educ. Expense Bd.,

948 F. Supp. 400, 414 (D.N.J. 1996), aff'd, 131 F.3d 353

(3d Cir. 1997); United States v. Rohm & Haas Co., 939 F.

Supp. 1157, 1162-63 (D.N.J. 1996) (defensive intervention

of state in CERCLA action does not waive Eleventh

Amendment immunity against counterclaims); Radeschi v.

Pennsylvania, 846 F. Supp. 416, 421 (W.D. Pa. 1993) (“mere

removal of a case by state officials does not, without much

more, [such as pressing state’s own affirmative [claims,]

waive the Eleventh Amendment immunity unless those state

officials are explicitly authorized to waive such immunity

and clearly and unequivocally do so”); United States v.

Wheaton Industries, 1991 WL 208877, at *1 (D.N.J. Oct. 8,

1991) (Eleventh Amendment immunity not waived where

state’s intervention is defensive response to claim against

it); because defendant Mallory has not asserted affirmative

rights but merely seeks defensively to protect the perceived

interests of PennDOT insofar as they may be affected by

the resolution of the pending federal claims; and, because

Eleventh Amendment immunity may be raised at any time while

a case is pending, see Ford Motor Co. v. Dept. of Treasury,

323 U.S. 459, 467 (1945) (“[t]he Eleventh Amendment

declares a policy and sets forth an explicit limitation on

federal judicial power of such compelling force that this Court

will consider the issue arising under this Amendment in this

39a

Appendix C

case even though urged for the first time in this Court”);

Mitchell v. Commission on Adult Entertainment

Establishments, 12 F.3d 406, 409 (3d Cir. 1993) (“[tlhe

[E]leventh [A]mendment is quasi-jurisdictional”); College

Savs. Bank, 948 F. Supp. at 414 (“t]he Eleventh Amendment

defense sufficiently ‘partakes of the nature of a jurisdictional

bar so that it need not [even] be raised in the trial court’ ”)

(quoting Florida Dept. of State v. Treasure Salvors, Inc.,

458 U.S. 670, 683 n.18 (1982)), IT IS HEREBY ORDERED

that said Motion is GRANTED and accordingly plaintiff’s

state law claims against intervenor-defendant Mallory under

the Pennsylvania Transportation Act, 71 Pa. Stat. §§ 510

et seq.; the State Highway law, 36 Pa. Stat. §§ 670-901; the

Delaware Valley Urban Area Compact, 73 Pa. Stat. § 701;

and, Section 27 of Article 1 of the Pennsylvania Constitution

are DISMISSED.

BY THE COURT:

s/ C. Waldman

JAY C. WALDMAN, J.

40a

APPENDIX D — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

DENYING PETITION FOR REHEARING

DATED MARCH 22, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-2673

BUCKINGHAM TOWNSHIP,

Appellant,

KEN WYKLE, HONORABLE, Administrator, Federal

Highway Administration, DAVID LAWTON, Chief of Planning,

Region 3 Federal Highway Administration; DELAWARE

VALLEY REGIONAL PLANNING COMMISSION

BRADLEY MALLORY, Secretary for the Department of

Transportation, Commonwealth of Pennsylvania,

Intervenor in District Court

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(No. 99-cv-00621)

District Judge: Honorable Jay C. Waldman

Argued October 30, 2001

Before: BECKER, Chief Judge, SLOVITER, SCIRICA,

NYGAARD, ALITO, ROTH, MCKEE, RENDELL,

BARRY, AMBRO, and FUENTES, Circuit Judges.

SUR PETITION FOR REHEARING

4la

Appendix D

The petition for rehearing filed by Appellant having been

submitted to the judges who participated in the decision of this

Court, and to all the other available circuit judges in active

service, and no judge who concurred in the decision having

asked for rehearing, and a majority of the circuit judges of the

circuit in regular active service not having voted for rehearing

by the court en banc, the petition for rehearing is DENIED.

By the Court

s/ [illegible]

Circuit Judge

Dated: MAR 22 2002

LML\cc: RJS

AFG

JmH

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