# Petition for Writ of Certiorari — Buckingham Township v. Wykle > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0002%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 537 U.S. 826 ## Text Supreme Court, U.S. FILED 011869 JUN 20 2002 No. 01- | a IN THE Supreme Court of the United States BUCKINGHAM TOWNSHIP, Petitioner 4 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 4 ; — C — 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 | il 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 iv 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 vi 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 17 10 20 16 16 17 11 11 25 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 la 5a 36a l 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 2 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. 3 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 4 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. 5 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 6 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 5 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 9 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. 10 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 11 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’’). 12 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 ~ 7 at a 7 it pias CW LON A A sg OT RACED PAE LAA IID: le OM ome 13 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). 14 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 15 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 16 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. 17 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 nn 18 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 19 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 20 ‘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 21 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 22 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 23 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 24 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. 25 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 26 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 la 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 2a 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 3a Appendix A UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 01-2673 BUCKINGHAM TOWNSHIP, Appellant, V. 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. 4a 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 Sa 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, V. 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 6a 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 7a 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. 8a 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 9a 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 V. 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, v. 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 BG AFG JmH --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0002%3A1. Public record. Not legal advice.