Petition for Writ of Certiorari — Alexandria Historical Restoration & Preservation Commission v. Federal Highway Administration

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Supremé Court, U.S.

FILED

991947 JUNO 5 200

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

ALEXANDRIA HISTORICAL RESTORATION AND

PRESERVATION COMMISSION, ET AL.,

Petitioners,

Vv.

FEDERAL HIGHWAY ADMINISTRATION, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

PETITION FOR WRIT OF CERTIORARI

S. William Livingston*

Mitchell F. Dolin

Thomas L. Cubbage III

COVINGTON & BURLING

_ 1201 Pennsylvania Ave., NW

Washington, DC 20004-2401

(202) 662-6000

Attorneys for Petitioners

* Counsel of Record

QUESTION PRESENTED

In preparing the Environmental Impact Statement

required by the National Environmental Policy Act

(“NEPA”) for a multi-billion dollar highway and bridge

project through a landmark historic district, the

Department of Transportation analyzed only alternatives

with twelve lanes, disregarding ten-lane alternatives that

would accomplish the principal aims of the agency, but

would accommodate marginally less traffic than that

projected for peak hours during the year 2020.

The question presented is:

Whether the court of appeals erred in holding,

contrary to other circuit courts, that a federal agency may

narrow the range of alternatives for a project that is

analyzed under NEPA by excluding from consideration an

alternative that does not fully satisfy a narrowly defined

non-environmental objective, but that would substantially

achieve the general goals of the project with less adverse

environmental impact.

PARTIES TO THE PROCEEDING AND RULE 29.6

STATEMENT

The petitioners are the Alexandria Historical

Restoration and Preservation Commission, the Historic

Alexandria Foundation, and the Coalition for a Sensible

Bridge, Inc. The Coalition for a Sensible Bridge, Inc., is a

not-for-profit corporation that has no parent corporation or

publicly held securities.

The respondents in this case are the Federal

Highway Administration, Kenneth Wykle, Administrator

of the Federal Highway Administration, and Rodney E.

Slater, Secretary of Transportation.

TABLE OF CONTENTS

Page

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PARTIES TO THE PROCEEDING AND RULE

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STATUTORY AND REGULATORY

PROVISIONS NIU tad ictbadissccdscdcisbcssacesnssansecesoun 1

STATEMENT OF THE CASE. ............cccecscscscccssesescscsoees ]

REASONS FOR GRANTING THE WRIT..............0.0.0-. 7

I. The Court Of Appeals’ Ruling Conflicts With ?

The Decisions Of Other Circuits ....0.........c.ccccscceceseseee 8

II. The Court Of Appeals’ Ruling Undermines

NEPA By Endorsing A Method By Which

Agencies Can Avoid Meaningful Compliance

SEI RCE Ce Sa nen 14

I hah tecicciinictckesaciailccisiiiasthibiicincdssendsicsitsns 16

Appendix A (Court of Appeals Opinion)....................... la

Appendix B (Denial of Rehearing) ................ccccceseses0-. 25a

Appendix C (Denial of Rehearing En Banc)............... 26a

Appendix D (District Court Opinion)....................:2++ 27a

Appendix E (Statutory and Regulatory Provisions).....54a

TABLE OF AUTHORITIES

Page

Cases

Citizens Against Burlington, Inc. v. Busey,

See ae BO Cs GE BIE DP vivesicsscnenesenciccnecensaice 13, 15

City of Bridgetown v. FAA, _F.3d___,

2000 WL 355521 (8th Cir. Apr. 7, 2000)............ 9, 10, 14

Natural Resources Defense Council, Inc. v.

Morton, 458 F.2d 827 (D.C. Cir. 1972) .u.......cccsssssceseeees 14

North Buckhead Civic Association v. Skinner,

903 F.2d 1533 (Lith Cir. 1990).............ceceeeee 10, 12, 13

Simmons v. United States Army Corps of

Engineers, 120 F.3d 664 (7th Cir. 1997) ................... 9,11

Van Abbema v. Fornell, .

OPT P26 GIS CIM Ce, TOBE nn sceciecneevnceccnecsvess 9, 13, 15

Statutes and Regulations

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see il ence Lice ht ELS RE OS OS MEA IR OE 5

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og Ee eat) Me REORRE SERRA Ta SR ge ete eRe 6

OME Mas © EMO earivecscscsstssb scsthneiss Bees. incchcswchbectis 8

Other Authority

Michael E. Lackey, Jr., Misdirecting NEPA:

Leaving the Definition of Reasonable Alternatives

in the EIS to the Applicants,

60 GEO. WASH. L. REV. 1232 (1992) ...............:se000 13, 15

OPINIONS BELOW

The opinion of the court of appeals, Appendix

(“App.”) 1a-24a, is reported at 198 F.3d 862. The orders

of the court of appeals denying rehearing and rehearing en

banc, App. 25a-26a, are unreported. The opinion of the

district court, App. 27a-53a, is reported at 46 F. Supp. 2d

35S,

JURISDICTION

The judgment of the court of appeals was entered

on December 17, 1999. App. la. A petition for rehearing

was denied on March 7, 2000. App. 25a. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254.

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

Provisions of the National Environmental Policy

Act and the regulations implementing the Act are

reproduced, in relevant part, at App. 54a-56a.

STATEMENT OF THE CASE

The Woodrow Wilson Memorial Bridge provides

the southern Potomac River crossing for the Capital

Beltway. The Bridge and Beltway pass through

Alexandria, Virginia, a densely populated and historically

Significant city whose eastern border is the Potomac River.

The Bridge, built in 1961, currently has six lanes,

creating a bottleneck on the eight-lane Beltway. App. 2a.

In addition, traffic across the Bridge exceeds the capacity

for which it was designed. According to 1997 Department

of Transportation (“DOT”) estimates, usage of the Bridge

is expected to be around 275,000 vehicles per day in 2020,

]

with a maximum of 300,000 vehicles per day. App. 28a,

44a. In November 1997, DOT approved a highway/bridge

project that would replace the current six-lane Bridge with

two side-by-side, six-lane bridges and would expand four

nearby interchanges on the Beltway with new ramps and

flyovers to separate traffic into local and through traffic

lanes on the bridges and their approaches. App. 28a.

Although the Beltway has only eight lanes, DOT

focused from the outset of its planning on replacing the

Bridge with a crossing of twelve lanes, including two for

high-occupancy vehicles (“HOV”). In 1991, DOT issued a

draft Environmental Impact Statement (“EIS”), comparing

five “build” proposals for replacing the Bridge. Each of

the alternatives in the draft proposed doubling the size of

the river crossing from six to twelve lanes, and included a

similar expansion along a five-mile corridor of the

Beltway on each side of the river. App. 2a-3a, 29-300.

As the court of appeals put it, “[rJeaction to the

draft was less than enthusiastic; the Administration was

criticized for assessing inadequately the environmental and

cultural impacts of its proposal, and for failing to

coordinate its work with that of interested governmental

agencies and community groups.” App. 3a. As a result,

DOT purportedly “went back to the drawing board.” Jd.

A second draft EIS was published in January 1996.

The 1996 draft described six “build” alternatives; once

again, all of the alternatives had twelve lanes. The only

significant differences among the alternatives were the

form (i.e. drawbridge, suspension bridge, or tunnel) and

location of the river crossing (i.e., at the site of the current

Bridge or one-half mile south). App. 31a.

Also in 1996, DOT asked the local Transportation

Planning Board to determine whether the anticipated

project would conform to the requirements or the Clean

Air Act, which forbids federal approval of projects that

would prevent or delay a region’s compliance with federal

air quality standards. See 42 U.S.C. § 7506(c\(1)(B).

DOT requested a “conformity analysis” for a new bridge

built with space for twelve lanes, but for which only ten

lanes would be opened for use until some indefinite future

date. The Board determined that a ten-lane bridge would

conform, but no conformity analysis was then done for a

twelve-lane bridge. App. 31a-32a.

DOT issued its Final EIS in September 1997. The

Final EIS gave detailed consideration to eight alternative

proposals (seven “build” alternatives and a “no build”

alternative), comparing them on a range of criteria

including capacity, cost, and environmental impacts. Like

both of the prior draft EISs, every “build” alternative

scrutinized in the Final EIS had twelve lanes (including

HOV lanes), as well as a configuration that separated local

and express traffic. The only material difference among

the proposed alternatives was the type of river crossing;

the “build” alternatives included a range of tunnel and

bridge types. App. 4a. Although the Final EIS briefly

mentioned eight- and ten-lane options, it did not afford

them full treatment as formal “alternatives” because DOT

concluded that narrower river crossings would fall short of

meeting DOT’s projections of the Bridge’s traffic needs in

2020. Id. No alternative with fewer than twelve lanes was

subjected to a detailed environmental impact analysis in

the Final EIS.

scantined ese erat 2 dim iaae > SIOV ction was

considered “in stages o study ... [but] was dropped at

that time ... because it was insufficient from a functional, safety

ae ea standpoint.” App. 32a. That conclusion follows

;

In November 1997, DOT issued its Record of

Decision approving the Preferred Alternative identified in

the Final EIS: a highway project that calls for replacing

the Bridge with two paral!el drawbridges, each with space

for six lanes (including one lane for HOV traffic). App.

28a. The two six-lane bridges would more than double the

width of the existing Bridge and would rise an additional

twenty feet above the River. Jd. The approved project

also entails reconstructing a five-mile stretch of the

Beltway to accommodate twelve lanes, notwithstanding

the eight-lane width of most of the Beltway. In particular,

the approved project authorizes substantial redesign and

reconstruction of the four interchanges closest to the

crossing (two on either side of the River) to separate local

and express traffic into the twelve-lane configuration. Jd.

The City of Alexandria filed suit in early 1998 to

challenge the Record of Decision on grounds that it

violated the National Environmental Policy Act

(“NEPA”), the Clean Air Act, the National Historic

Preservation Act, and the Department of Transportation

Act. Three interested organizations—the petitioners

here—intervened as plaintiffs. After both sides filed

motions for summary judgment, the City and DOT reached

a settlement agreement, leaving petitioners as the sole

plaintiffs. App. 5a.

ease if not exclusively, from the supposedly reduced rush-

our capacity of a ten-lane, no-HOV crossing com to a

twelve-lane crossing with HOV lanes. DOT’s own analysis

showed, however, that a ten-lane crossing could handle up to

295,000 vehicles per day, or 98 percent of DOT’s 1997 estimate of

the maximum daily vehicular usage in 2020. App. 44a.

(Moreover, DOT later decreased its estimate of maximum in

2020 to 295,000 vehicles per day. See Final Supplemental EIS, at

p. 4-4 (Apr. 14, 2000).)

The district court entered summary judgment for

petitioners. App. 27a-53a. The district court ruled that

DOT violated NEPA in two respects. First, the court

determined that DOT failed to provide a detailed analysis

in the EIS for all reasonable alternatives for the project,

including specifically a ten-lane river crossing. The court

noted that the Final EIS’s statement of the purpose and

need of the project “hardly provides an unequivocal basis

for eliminating ten-lane alternatives from consideration,”

that a ten-lane structure could accommodate up to 98

percent of the estimated maximum demand in 2020, and

that DOT itself had characterized the project as a ten-lane

river crossing for Clean Air Act compliance purposes.

App. 44a-45a. Second, the court ruled that the Final EIS

inadequately discussed the environmental impacts of

construction activities, providing a discussion “of such a

broad and generic nature that-it could apply to practically

any construction project undertaken by” DOT. App. 46a.

The court also ruled that DOT violated the Clean Air Act

by approving construction of a twelve-lane structure after

performing a “conformity analysis” for only a ten-lane

bridge. App. 38a. Finally, the court ruled that DOT

violated Section 106 of the National Historic Preservation

Act, 16 U.S.C. § 470f, and Section 4(f) of the Department

of Transportation Act, 49 U.S.C. § 303, by failing to

complete the process of identifying all historic sites, parks,

and other protected resources that might be affected by all

aspects of the project before issuing the Record of

Decision. App. 50a.

The court of appeals reversed on all issues other

than those concerning the Clean Air Act, which DOT did

not appeal. App. la-24a. With respect to NEPA’s

requirement that an EIS must consider all reasonable

alternatives, the court held that it was not improper for

DOT to exclude any alternative smaller than twelve lanes

from consideration in the Final EIS. According to the

court of appeals, DOT defined the project’s objective as

satisfying expected peak hours traffic demand at the

crossing site in 2020, and thus a ten-lane alternative could

be excluded because of its inability to satisfy fully DOT’s

forecasted peak-hour needs in 2020. Apn. 1la-13a. The

court also stated that DOT’s decision to analyze only ten-

lane structures for Clean Air Act purposes did not

undermine this conclusion, because NEPA and Clear Air

Act analyses “have different time horizons.” App. 14a;

but see 23 C.F.R. § 450.322(a); 40 C.F.R. § 93.118(b)

(requiring Clean Air Act conformity findings to be made

for a 20-year horizon).

REASONS FOR GRANTING THE WRIT

This case presents fundamental questions

concerning the procedural constraints imposed on federal

agencies by the National Environmental Policy Act. The

court of appeals’ decision conflicts with decisions of other

courts of appeals in applying NEPA and undermines the

express purposes of the Act by permitting a federal agency

to limit the range of alternatives analyzed under NEPA to |

only those alternatives that fully satisfy an unreasonably

narrow definition of the functional purpose of the project

at issue.

Aside from exacerbating a circuit court split

concerning a vital statute that applies to all “major Federal

actions,” 42 U.S.C. § 4332(2)(C) (App. 54a), the result

reached below is of considerable importance because in

this case it would allow DOT to proceed immediately with

a currently-estimated $2.5 billion construction project

through the National Register “Old and Historic District”

of Alexandria, Virginia, including the area commonly

known as Old Town. Alexandria is “one of America’s

most historic cities.” App. 29a. It contains an

extraordinary collection of historic resources, including a

National Register Historic District, a National Historic

Landmark District, three individual National Historic

Landmarks, and many properties listed or eligible for

listing on the National Register of Historic Places. Jd.

Alexandria’s historic sites and other environmental

resources will be adversely affected by the project

approved by DOT, which concededly has not taken a “hard

look” at any smaller alternative to the approved project.

I. THE COURT OF APPEALS’ RULING

CONFLICTS WITH THE DECISIONS OF

OTHER CIRCUITS.

The D.C. Circuit’s restrictive view of the

requirements imposed by NEPA, while consistent with that

recently embraced by a divided panel of the Eighth Circuit,

conflicts with decisions of the Seventh and Eleventh

Circuits on the same issues.

NEPA requires federal agencies to take a hard look

at environmental issues by preparing a “detailed

statement” in an EIS on “the environmental impact” and

“alternatives to the proposed action.” 42 U.S.C. §

4332(2)(C) (App. 54a). As part of the required analysis,

an agency must “[rjigorously explore and objectively

evaluate all reasonable alternatives” to a proposed project.

40 C.F.R. § 1502.14 (emphasis added) (App. 55a). The

discussion of alternative projects is the “heart of the

[EIS].” Id.

According to the D.C. Circuit, NEPA’s requirement

that “all reasonable alternatives” be considered calls for an

inquiry into “whether an agency’s objectives are

reasonable, and whether a particular alternative is

reasonable in light of these objectives.” App. 9a. The

decision of the court of appeals in this case makes clear

that in defining the objectives for a project, an agency is

not “substantively constrain[ed]” by NEPA. App. 10a.

This means, among other things, that an agency may

exclude all environmental factors from consideration in

defining the objective by which the reasonableness of

alternatives is considered under NEPA. Thus, an agency is

free to define the functional objective of a project—as it

did in this case—in a fashion that effectively narrows the

range of alternatives that can meet the stated objective to

ones that have virtually indistinguishable environmental

impacts. The court of appeals thus held that DOT could

exclude from consideration in the EIS an alternative that

would not meet the agency’s narrowly defined objective.

App. 13a.

The Seventh Circuit’s decisions establish a

different NEPA standard, which requires agencies to

undertake a broader analysis in complying with the statute.

In Simmons v. United States Army Corps of Engineers, 120

F.3d 664 (7th Cir. 1997), that court held that an agency

does not enjoy a free hand in defining the objectives of a

project for NEPA purposes:

One obvious way for an agency to slip past the

strictures of NEPA is to contrive a purpose so

slender as to define competing “reasonable

alternatives” out of consideration (and even out of

existence). The federal courts cannot condone an

agency’s frustration of Congressional will. If the

agency constricts the definition of the project’s

purpose and thereby excludes what truly are

reasonable alternatives, the EIS cannot fulfill its

role. Nor can the agency satisfy the Act. Jd. at

666.

See also Van Abbema v. Fornell, 807 F.2d 633, 638 (7th

Cir. 1986) (“the evaluation of ‘alternatives’ mandated by

NEPA is to be an evaluation of alternative means to

accomplish the general goal of an action”).”

* A similar interpretation of NEPA was recently advanced by

J mu Pad, Fd 2000 WLS ene Ce

Bridgeton v. FAA, _ F.3d 2000 WL 355521, at *14 (8th Cir.

Apr. 7, 2000) (R. Amold, J. ) (concluding that a runway

alternative was improperly excluded fom te EIS onthe bass tha

it did not “provide independent simultaneous IFR arrival

” which “is only one way of achieving” the project’s

(.. continued)

The Eleventh Circuit also has disagreed with the

position taken by the court of appeals in this case that an

agency may exclude from its analysis under NEPA any

alternative that does not fully satisfy the stated objective,

including alternatives that would achieve most of the

desired result with considerably less adverse

environmental impact. App. 13a. In North Buckhead

Civic Association v. Skinner, 903 F.2d 1533 (11th Cir.

1990), the Eleventh Circuit agreed with the objectors to a

highway project that requiring the agency to consider

alternatives that only partly satisfy the project’s objectives

serves NEPA because “a discussion of alternatives that

would only partly meet the goals of the project may allow

the decision maker to conclude that meeting part of the

goal with less environmental impact may be worth the

tradeoff with a preferred alternative that has greater

environmental impact.” Jd. at 1542; accord City of

Bridgeton, _ F.3d at _, 2000 WL 355521, at *15 (R.

Arnold, J., dissenting). Although the Eleventh Circuit held

in North Buckhead that the agency did not violate NEPA

by failing to consider an alternative that would fall short of

satisfying the project’s transportation goals, it did so

because there was no evidence that the alternative

proposed by the objectors would have a less severe

environmental impact. 903 F.2d at 1542.? According to

general goal a ee ee eee See delay”

at the St. Louis ). The panel majority in that case did not

agree. Id. at *6-7 (deeming reasonable the exclusion of a runway

alternative from the EIS because it lacked simultaneous IFR arrival

capability).

* In this case, although DOT refused to se errs

of the environmental impacts of any

twelve lanes, there is substantial evidence in the apr arene ee

record that a smaller river crossing would have lesser

(...continued)

the court of appeals opinion in this case, however, an

agency need never consider alternatives that would only

“partly meet” the agency’s defined goal, no matter how

great the environmental benefits of such an alternative

might be and no matter how close the alternative comes to

meeting that goal.

The modes of analysis required by the D.C. Circuit

and the other referenced circuits are irreconcilable. For

example, Simmons involved the Corps of Engineers’

approval of the construction of a dam to create a new

reservoir in Illinois to supply drinking water both to the

City of Marion and to the Lake of Egypt Water District.

In preparing its EIS, the Corps considered the project’s

purpose to be “finding or creating a single source to supply

both Marion and the ... Water District.” Jd. at 669. The

Seventh Circuit held that this definition was unreasonably

narrow in light of the underlying problem to be addressed:

“The general goal of Marion’s application is to supply

water to Marion and the Water District—not to build (or

find) a single reservoir to supply that water.” Jd. The

Corps therefore violated NEPA by excluding from

consideration any alternative that could solve the general

problem, but that did not satisfy the Corps’ narrower

objective of creating a single source to supply both

markets.

In contrast, the D.C. Circuit in this case refused to

step back from DOT’s narrow definition of its objective to

consider the underlying problems being addressed. As the

EIS stated and the district court found, the general goal of

the project is to “address[] the future transportation needs

environmental im . See App. 43a; see also, e.g., C.A. App.,

Vol. VIII, p. 91 (Final EIS).

of the region.” App. 44a. Moreover, according to the

discussion in the Final EIS of the “Purpose of and Need

for Action,” the needs to be addressed by the project are

numerous: removal or rehabilitation of the aging structure

that is currently in use; improvement of safety through the

addition of roadside “breakdown lanes”; elimination of the

bottleneck created when eight lanes of traffic on the

Beltway converge into six lanes on the Bridge; lessening

the frequency with which the drawbridge must be opened

for maritime traffic; accommodating the volume of local,

regional, and interstate traffic that is expected to be

crossing the River in the vicinity of Alexandria through the

year 2020; and protecting the surrounding environment,

including both its natural and cultural resources. C.A.

App., Vol. I, pp. 107-16 (Final EIS).

Considering the numerous goals of the project,

including that of protecting the environment, it is evident

that less environmentally onerous alternatives—such as a

ten-lane crossing with simplified land-side interchanges—

would satisfy the agency’s basic aims.‘ For example, a

ten-lane crossing would eliminate structural concerns

about the existing Bridge, sharply reduce the safety

problems, remove the current bottleneck, and substantially

deal with projected traffic levels even twenty years hence,

while having far fewer adverse environmental effects. At

the same time, because satisfaction of forecasts of traffic

demand two decades in the future is inherently uncertain

and a matter of degree, this is a paradigmatic case where,

‘ Petitioners believe that these goals could be addressed by a wide

cane Gt ee ton oe ee ee oreeeeee OF Sak eee

i ing a bridge or tunnel ing with less than twelve lanes at

the existing site or construction of an additional crossing miles

downstream.

- as the Eleventh Circuit stated, “the decision maker [could]

-.- conclude that meeting part of the goal with less

environmental impact may be worth the tradeoff with a

preferred alternative that has greater environmental

impact.” North Buckhead, 903 F.2d at 1542. But only a

NEPA analysis that takes a hard look at a broader range of

alternatives can permit the decision maker to reach that

conclusion.

The court of appeals, however, held that the

alternatives that needed to be analyzed under NEPA could

be determined solely by whether or not they satisfied what

the court deemed DOT’s real objective, on which it said

the agency “focused specifically”: “the traffic needs that

will exist twenty years after the project’s approval” at the

current crossing site “during peak commuting hours.”

App. 10a-1la. In, emphasizing a single functional

objective of the project—rather than the underlying

reasons for and diverse goals of the proyect—the court of

appeals rejected the Seventh and Eleventh Circuits’

approach, an approach the D.C. Circuit has explicitly

rejected before. See Citizens Against Burlington, Inc. v.

Busey, 938 F.2d 190, 199 (D.C. Cir. 1991) (expressly

disagreeing with the Seventh Circuit’s view in Van

Abbema that the reasonableness of alternatives should be

judged by the “general goal” of the project); see also

Michael E. Lackey, Jr., Misdirecting NEPA: Leaving the

Definition of Reasonable Alternatives in the EIS to the

Applicants, 60 GEO. WASH. L. REV. 1232, 1257, 1268

(1992) (discussing D.C. Circuit’s disagreement in Citizens

Against Burlington with Seventh Circuit).°

* The analysis employed by the D.C. Circuit in the 1990s actually

—— aah ial which was similar to that

I. THE COURT OF APPEALS’ RULING

- UNDERMINES NEPA BY ENDORSING A

METHOD BY WHICH AGENCIES CAN AVOID

MEANINGFUL COMPLIANCE WITH THE ACT.

The decisions requiring an agency to analyze

alternatives that could achieve the general goal of the

project, thus precluding the agency from focusing its

analysis so narrowly as to exclude a range of alternatives

with meaningfully - different environmental impacts, are

correct. Judge Amold cogently discussed the problem

with the view of NEPA expressed by the court of appeals

in this case in a recent dissenting opinion:

Is the fact ... that [an alternative excluded from the

EIS] is inferior, purely as a matter of air-

transportation policy, to [FAA’s preferred

alternative] sufficient to justify the exclusion of [the

former] from detailed analysis? I think not. This is

exactly the sort of thing that NEPA was designed

for. The possibility that some substantive benefits

of a project might not be great enough to justify its

environmental costs is exactly the point of NEPA.

In the end, the agency will make this decision, but

it is allowed to do so, under the statute, only after a

detailed explanation of alternatives. City of

Bridgeton, _F.3dat___, 2000 WL 355521, at *15

(R. Arnold, J., dissenting).

of the Seventh Circuit. Indeed, the court of appeals below

purported to distinguish Gatien ae aeracend Se “contin ws Tog

= its own 2 sen ot Iding that alternatives ues

mere iytomnn ear dvua ally caneabanadeies

: the problem.’”” App. 12a-13a (quoting Natural Resources

—_ Council, Inc. v. Morton, 458 F.2d 827, 836 (D.C. Cir.

The court of appeals decision in this case provides

DOT, which undertakes or approves numerous

construction projects, with a roadmap for avoiding any

significant NEPA analysis in virtually every case. By

defining the transportation purpose of a project in narrow

terms, such as enabling “x” cars per day or “y” passengers

per hour to use a particular road, the agency could justify

its refusal to take a hard look in the EIS at the

environmental impacts of any smaller alternatives on the

ground that they do not satisfy the chosen objective even

though they may only barely miss the mark. In such cases,

agency decision makers will never receive the information

needed to weigh competing functional benefits versus

environmental impacts. In effect, the court of appeals’

decision has licensed DOT, and indeed any federal agency,

to refuse to give detailed consideration in an EIS to any

alternative that would not fully satisfy a single non-

environmental goal specified by the agency. This result

would be totally inconsistent with Congress’s clear

-\ commentator has observed that the D.C. Circuit

“erred [in Citizens Against Burlington] by not following

the Van Abbema court’s approach of considering the

alternatives to the proposed action in light of the general

goals of the project.” Lackey, supra, 60 GEO. WASH. L.

REV. at 1268. This observation highlights the need for

Supreme Court review of the D.C. Circuit’s application of

its approach to NEPA in this case. The correct

enforcement of this vital statute should not depend upon

the fortuity of the venue in which a particular action must

be brought.

CONCLUSION

The petition for a writ of certiorari should be

granted to resolve the conflict in the circuit courts on this

fundamental issue concerning the application of NEPA.

Respectfully submitted,

S. William Livingston*

Mitchell F. Dolin

Thomas L. Cubbage III

COVINGTON & BURLING

1201 Pennsylvania Ave. NW

Washington DC 20004-2401

(202) 662-6000

Attorneys for Petitioners

June 5, 2000 *Counsel of Record

3 LLL LALO tee

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A ae Oe dee ae De ta et ee TT

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 99-5220

City of Alexandria, Virginia, et al.,

Appellees,

Vv.

Rodney E. Slater, Secretary, U.S. Department

of Transportation, et al.,

Appellants.

Appeal from the United States District Court

for the District of Columbia (98CV00251)

December 17, 1999

Before: Silberman, Williams, and Randolph, Circuit

Judges.

Opinion for the Court filed by Circuit Judge Silberman.

SILBERMAN, Circuit Judge: Appellees challenged

the Federal Highway Administration’s approval of plans to

replace the Woodrow Wilson Memorial Bridge. The

district court held that the Administration violated the

National Environmental Policy Act and the National

Historic Preservation Act. We reverse.

The Woodrow Wilson Memorial Bridge is a

microcosm of the Washington, D.C. metropolitan area’s

traffic congestion problems. Built in 1961, the six-lane

structure carries the Capital Beltway over the Potomac

River, connecting the City of Alexandria, Virginia, to

Prince George’s County, Maryland; originally intended to

serve as a Washington bypass for interstate travelers, it

became increasingly used by commuters as the region's

population grew. As a result, traffic volume on the Bridge

has increased to over 160,000 vehicles per day, more than

twice the capacity the structure was designed to

accommodate; congestion is particularly acute during peak

hours, where the configuration of an eight-lane Beltway

feeding into a six-lane bridge—in addition to steadily

increasing local traffic in the surrounding communities—

has produced one of the worst rush-hour “bottlenecks” in

the region. These congestion problems have created

harmful collateral consequences: the heavy volume on the

Bridge has contributed to an accident rate nearly double

that of similar facilities in the region, and has expedited

the deterioration of the Bridge’s structure to the point

where the Bridge is projected to be structurally unsound by

2004.

Efforts to replace the Bridge began over ten years

ago, when the Federal Highway Administration, in

cooperation with its coordinate agencies in Maryland,

Virginia, and the District of Columbia, began examining

alternative approaches to solving the Bridge’s capacity and

structural problems. The Administration began to study

the potential effects of rebuilding the Bridge on the

surrounding communities early in the project's

development, commissioning surveys of historic and

archaeological resources in areas likely to be affected by

the projects. The Commission also started the process,

mandated by the National Environmental Policy Act

(NEPA), 42 U.S.C. § 4321 et seg. (1994), of considering

the environmental impacts of alternative project designs.

In 1991 the Administration issued a draft Environmental

Impact Statement (EIS) for public comment; this statement

Suggested and compared five proposals for replacing the

Bridge. Each of the alternatives in the draft proposed

expanding the river crossing from six to twelve lanes, and

included a similar expansion of the five-mile Beltway

corridor approaching the river crossing from the east and

west.

Reaction to the draft was less than enthusiastic; the

Administration was criticized for assessing inadequately

the environmental and cultural impacts of its proposal, and

for failing to coordinate its work with that of interested

governmental agencies and community groups. By its

own admission concerned that “a region-wide consensus

about the new bridge had not been reached,” the

Administration went back to the drawing board. In

response the Administration organized a “Coordination

Committee” composed of elected and administrative

Officials from the region to enhance community and

intergovernmental cooperation. The Committee revisited

the entire process of developing alternative Bridge designs,

ultimately soliciting and considering over 350 proposals

from interested individuals and organizations, and

increased the Administration’s public outreach efforts in

affected communities. In the meantime, pursuant to its

obligations under section 106 of the National Historic

Preservation Act, 16 U.S.C. § 470f (1995 & Supp.), and

section 4(f) of the Department of Transportation Act, 49

U.S.C. § 303 (1997), the Administration continued to

' More specifically, the project would widen. the Beltway to

twelve lanes_between Telegraph Road in Alexandria and Route

210 in Prince George’s County.

assess the project's potential impacts on_ historic,

archaeological, and cultural resources in the area.

In 1997, the Administration issued its Final

Environmental Impact Statement (the “Final EIS”). The

Final EIS gave detailed consideration to eight alternative

proposals (seven “build” alternatives and a baseline “no

build” alternative), comparing them on a range of criteria

including vehicle capacity, cost, and extent of

environmental impacts. As was the case with the draft

each of the “build” alternatives scrutinized in the Final EIS

had twelve lanes; each alternative also had a lane

configuration that separated local and express traffic, and

contained a lane dedicated for High Occupancy Vehicle

usage. The critical difference among the proposed

alternatives was the type of river crossing; the seven

“build” alternatives included a range of tunnel and bridge

designs. Although the Final EIS discussed narrower eight-

and ten-lane options, it did not afford them full treatment

as formal “alternatives” because the Administration

concluded, on the basis of traffic projections, that narrower

_ river crossings would fail short of meeting the Bridge’s

long-term traffic needs. Among the eight options the

Administration designated a “Preferred Alternative” that

would replace the Bridge with twc-parallel six-lane

drawbridges (one drawbridge for eastbound and one for

westbound traffic) clearing the Potomac’s navigational

channel by seventy feet at their highest points. The

Administration also included ‘= the Final EIS a sixty-page

“Section 4(f) Evaluation” identifying and offering plans to

mitigate the effects of the Preferred Alternative and all

other build alternatives on public parks, wildlife refuges,

and historic sites.

After a brief comment period the Administration

approved the Preferred Alternative in a Record of Decision

and submitted, as is required by section 106 of the

National Historic Preservation Act, a Memorandum of

Agreement evidencing the Administration’s cooperation

with state historic preservation officers in identifying

historic sites that might be impacted. The Memorandum

identified and offered mitigation plans for several historic

sites, but it also noted that the Administration had not yet

identified properties to be used for “construction staging,

dredge disposal, wetland mitigation, or other ancillary

activities” during the period of the Bridge’s construction.

The City of Alexandria filed an action in the district

court challenging the Administration’s approval of the

project, and the district court permitted three Alexandria-

based organizations that opposed the Administration’s

proposed alternative (collectively the “Alexandria

Coalition” or “appellees”) to intervene as plaintiffs. The

City alleged that the Administration had violated a host of

regulatory provisions, including the National

Environmental Policy Act, section 106 of the National

Historic Preservation Act, and section 4(f) of the

Department of Transportation Act.” After both sides had

filed for summary judgment the City of Alexandria settled

its claim with the Administration, leaving the Alexandria

Coalition as the only remaining plaintiffs.

The district court ruled in favor of the Alexandria

Coalition. See City of Alexandria v. Slater, 46 F. Supp. 2d

35 (D.D.C.1999). The court concluded that the

Administration had violated NEPA by not affording

> The City also alleged that the Administration sore very

Air Act by failing to conduct a conformity analysis for the twelve-

lane alternative. The district court agreed, but the

Administration does not appeal this finding.

detailed consideration to a ten-lane river crossing as a

“reasonable alternative” in the Final EIS, and that the Fina!

EIS’ treatment of the temporary environmental impact of

the construction phase of the project was too cursory to

satisfy NEPA. Relying upon our recent decision in

Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368

(D.C.Cir.1999), the district court also determined that the

Administration had violated section 106’s requirement that

an agency “take into account” the effects of a proposed

project on protected historic properties by postponing the

identification of the sites that were to be used for

construction-related “ancillary activities.” Because an

agency must complete the section 106 identification

process before it can satisfy section 4(f)’s requirement that

an agency use “all possible planning to minimize harm” to

historic sites, the court concluded that the Admiriistration

had necessarily failed to comply with section 4(f) as well.

The district court remanded the project to the

Administration; the Administration appealed, as it is

entitled to do. See Occidental Petroleum Corp. v. SEC,

873 F.2d 325, 330 (1989) (when district court remand

obliges agency to take further actions under an arguably

incorrect legal standard an immediate appeal is

appropriate).

Il.

aie

The National Environmental Policy Act’s mandate

“is essentially procedural,” Vermont Yankee Nuclear

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

435 U.S. 519, 558 (1978); the statute requires that agencies

assess the environmental consequences of federal projects

by following certain procedures during the decision-

making process. See Citizens Against Burlington, Inc. v.

Busey, 938 F.2d 190, 193-94 (D.C. Cir. 1991). Before

approving a project, an agency must prepare a “detailed

statement ... [on] the environmental impact of the

proposed action, any adverse environmental effects which

cannot be avoided should the proposal be implemented,

[and] alternatives to the proposed action.” 42 U.S.C. §

4332(2)(C)(i)-(iii). These general prescriptions are given

sharper focus in the Council on Environmental! Quality's

regulations,’ which require agencies to prepare

environmental impact statements; at the “heart of the

environmenta! impact statement” is the requirement that an

- agency “rigorously explore and objectively evaluate” the

projected environmental impacts of all “reasonable

' ~ alternatives” for completing the proposed action. 40

C.F.R. § 1502.14.

__. Appellees argue, and the district court agreed, that

the Administration violated NEPA by failing to deem a

ten-lane bridge a “reasonable alternative” in the Final EIS.

They observe that a ten-lane bridge would constitute a

significant improvement over the existing six-lane

structure, and would reduce congestion with considerably

less impact on environmental and cultural resources than

each of the twelve-lane alternatives compared by the

Administration. In addition to having a narrower river

crossing, appellees point out that a ten-lane alternative

would have a smaller construction “footprint” along the

* The Council on Environmental Quality has no express regu

authority under the National Environmental Policy Act; i

to Oe TY A ions by

President Carter’s Executive No. 11991, 42 . 26,967

(1977). Because the Administration does not challenge the

Council’s regulatory authority, we treat the Council’s i

as binding on the agency. But see Scott C. Whitney, The Role of

the Pres ‘s Council on Environmental Quality in the 1990s and _

Beyond, 6 J. ENVTL. L. & Liv. 81 (1991).

entire five-mile stretch of the Beltway that will be under

| construction, and would require smaller interchanges at

| each of the four points of access to the Beltway in the

| project corridor. The Administration responds that the ten-

| lane alternative favored by appellees was excluded after

| studies determined that it did not meet the traffic capacity

| needs of the project. The Administration also argues that

the difference between the environmental-impacts of the

two projects is less than appellees suggest; a ten-lane

bridge would impact only 1.6 fewer acres of parkland and

12.9 fewer acres of natural resources over the entire length

| of the project corridor, and would have an identical impact

on cultural resources.

How are the merits of appellees’ argument to be

assessed? After all, the phrase “reasonable alternative,”

standing alone, offers no guidance to a reviewing court.

Something can only be an “alternative” by reference to

something else; “the term ‘alternatives’ is not self-

defining.” Vermont Yankee, 435 U.S. at 551. The Council

| on Environmental Quality, for its part, does little to clarify

| the baseline against which a “reasonable alternative” is to

be measured; its regulations at times appear to contrast the

“alternatives” to the “proposal,” suggesting that the range

of reasonable alternatives are to be selected by reference to

the project implemented. See 40 C.F.R. s 1502.14. But

that approach would seem to bias the process. See, e.g.,

Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic

Energy Comm'n, 449 F.2d 1109, 1114 (D.C. Cir. 1971).

And even if we were to understand an “alternative” to be

defined by reference to the proposal actually selected, our

interpretive task would hardly be easier, as “the adjective

‘reasonable’ is no more self-defining than the noun that it

modifies.” Citizens Against Burlington, 938 F.2d at 195.

ewe

We have resolved this difficulty by evaluating an

agency’s choice of “reasonable alternatives” in light of the

objectives of the federal action; as then-Judge Thomas put

it in Citizens Against Burlington, “(t]he goals of an action

delimit the universe of the action's reasonable

alternatives.” Jd. But that approach of course requires that

we first consider whether the agency has reasonably

identified and defined its objectives. The agency’s choice

of alternatives are, then, evaluated in light of these stated

objectives; an alternative is properly excluded from

consideration in an environmental impact statement only if

it would be reasonable for the agency to conclude that the

alternative does not “bring about the ends of the federal

action.” Jd. We engage in both of these inquiries—

whether an agency’s objectives are reasonable, and

whether a particular alternative is reasonable in light of

these objectives—with considerable deference to the

agency’s expertise and policy-making role. Jd. at 196.

The district court’s opinion suggests that the

Administration improperly defined its objectives,

criticizing the Administration for narrowing its choice of

alternatives “based on a set of criteria that focused

primarily on transportation and safety issues.” City of

Alexandria, 46 F. Supp. 2d at 44. This description of the

Administration’s objectives is an accurate one; while the

“Statement of Purpose and Need” in the Final EIS

references several objectives (including protecting the

environment), it focuses on the region’s traffic needs. But

it hardly follows that the Administration violated NEPA.

As mentioned above, NEPA’s injunction that agencies

consider the environmental impacts of “all reasonable

alternatives” does not substantively constrain an agency’s

choice of objectives; to the contrary, it is those very

objectives that provide the point of reference for a

determination whether an alternative is “reasonable” in the

first place. By suggesting that the Administration violated

NEPA because it did not sufficiently prioritize

q environmental goals, the district court. subtly—and

| impermissibly—transformed a procedural statute into a

substantive one. See Baltimore Gas & Elec. Co. v. Natural

Resources Defense Council, Inc., 462 U.S. 87, 97, (1983)

Be (“Congress in enacting NEPA ... did not require agencies

| to elevate environmental concerns over other appropriate

| considerations.”) The proper question to ask at the outset

| of a NEPA inquiry is not whether the Administration

| focused on environmental goals but rather—as we noted—

| whether its stated objectives were reasonable. It seems

| rather obvious to us that it is not unreasonable in

articulating its objectives for an agency to “focus primarily

| on transportation and safety issues” when replacing a

| massively congested and structurally unsound bridge. C7

Corridor H, 166 F.3d at 374 (affirming the

Administration’s rejection of highway alternatives that did

not meet the transportation and safety needs of the region).

More in keeping with our precedent, the district

court also determined that a ten-lane alternative was

reasonable—and therefore should have been given greater

attention—in light of these objectives. The district court

arrived at this conclusion by characterizing the

Administration as “articulat[ing] the problem as one of

addressing the future transportation needs of the region.”

“Such a broad statement of purpose and need,” the district

court explained, “hardly provides an unequivocal basis for

eliminating ten-lane alternatives from consideration.” City

of Alexandria, 46 F. Supp. 2d at 44. This might be so, had

the Administration truly characterized its objectives in

such general terms. But it did not. As is required by

statute, see 23 U.S.C. § 109(b), the Administration instead

focused specifically—in its Statement of Purpose and

Need and elsewhere—on the traffic needs that will exist

10a

OEeEEEE——EEEEOEE——————

twenty years after the project’s approval, and its analyses

based on 2020 traffic projections demonstrate that a ten-

lane bridge would be insufficient. The Administration’s

studies show that appellees’ preferred design (a ten-lane

configuration without an HOV lane) would be able to

accommodate less than half of the per-hour capacity of the

Administration’s preferred alternative, causing peak-hour

traffic queues of significantly greater length and extended

duration; accident rates would also be markedly higher on

a ten-lane structure.

The district court ignored this data, instead focusing

exclusively on an Administration study showing that a ten-

lane bridge would be able to accommodate up to 295,000

vehicles per day, a number only slightly smaller than the

projected daily traffic flow on the Bridge in 2020. City of

Alexandria, 46 F. Supp. 2d at 44. But that study

apparentiy assumed an even flow of traffic throughout the

day (which, of course, is unrealistic). Whatever the total

number of vehicles that will cross in a 24-hour period, the

relevant question is how long during peak commuting

hours it will take to cross the bridge. Appellees also do

not seriously challenge the Administration’s findings,

instead protesting that these studies establish little more

than the “truism ... that a ten-lane bridge would carry

somewhat less traffic than a twelve-lane bridge.” It is not

apparent to us why this proposition has less force in the

case because it is a “truism.”

Appellees’ more fundamental argument is that,

regardless of its shortcomings in satisfying future traffic

needs, we must hold a ten-lane bridge to be a reasonable

alternative in light of our statement in Natural Resources

Defense Council, Inc. v. Morton that an agency should not

“disregard alternatives merely because they do not offer a

complete solution to the problem.” 458 F.2d 827, 836

lla

(D.C. Cir. 1972). Appellees overread Morton. In that case

an environmental group challenged the Secretary of the

Interior’s proposed sale of oil and gas leases to submerged

lands in the Gulf of Mexico; the Secretary sought to sell

these properties as part of a cross- agency effort, initiated

by the President, to increase American energy supplies.

We held that the Secretary’s environmental impact

statement violated NEPA because it failed to consider

alternatives outside of the Department of the Interior’s

jurisdiction; we also noted that the agency could not

exclude alternatives “supplying only part of the energy that

the lease sale would yield.” Jd at 836. This broad

articulation of “reasonable alternatives” was compelled by

the national scope of the problem being addressed: “When

the proposed action is an integral part of a coordinated

plan to deal with a broad problem, the range of alternatives

that must be evaluated is broadened.” Jd. at 835.

Morton thus stands for the same proposition as

Citizens Against Burlington: namely, that a “reasonable

alternative” is defined by reference to a project’s

objectives. Morton explained that, within the context of a

coordinated effort to solve a problem of national scope, a

solution that lies outside of an agency’s jurisdiction might

be a “reasonable alternative”; so might an alternative

within that agency’s jurisdiction that solves only a portion

of the problem, given that other agencies might be able to

provide the remainder of the solution. Such a holistic

definition of “reasonable alternatives” would, however,

make little sense for a discrete project within the

jurisdiction of one federal agency, as we recognized in

Morton when we contrasted the Secretary’s action with

12a

that of building “a single canal or dam.”4 Id. Concerned

with severe traffic conditions in the Capital Region,

Congress has authorized the Administration to replace the

Woodrow Wilson Memorial Bridge. The Administration

has sole responsibility for solving this problem; were it to

build a ten-lane bridge, no one else would step in and

alleviate the congestion that would result.* In this context,

it is simply a non sequitur to call a proposal that does not

“offer a complete solution to the problem” a “reasonable

alternative.”

: One other point merits brief discussion. In finding

a ten-lane alternative reasonable, the district court noted

that the Administration only conducted a Clean Air Act

conformity analysis for the use of ten lanes on the Bridge.

See City of Alexandria, 46 F. Supp. 2d at 45. If the

Administration only expects ten lanes to be open, the

district court reasoned, how can it fail to consider a ten-

. We doubt the continuing vitality of the rather expansive view of

NEPA eet io ren, since subsequent S e Court

cases have directly criticized us for overreading statute’s

mandate. See Baltimore Gas & Elec. Co., 462 U.S. at 97; Vermont

Yankee, 435 U.S. at 554; Kleppe v. Sierra Club, 427 U.S. 390

(1976). Morton, after all, suggested that the Secretary should have

deemed as “reasonable alternatives” Congress’ ability to reduce oil

import quotas and the Federal Power Commission’s authority to

change its natural gas pricing policies. 458 F.2d at 835, 837. To

be sure, Vermont Yankee cited with approval our statement in

Morton stressing the limits of an agency’s obligations under

NEPA, 435 U.S. at 551, but we wonder whether Morton’s holding

can be squared with Vermont Yankee’s injunction that “the

‘detailed statement of alternatives’ cannot be found wanting

simply because the agency failed to include every alternative

device and thought conceivable by the mind of man.” Jd

* As the Administration determined, there are no apparent and

feasible independent rail transit options that could be combined to

a ten-lane bridge to satisfy transportation needs.

13a

lane bridge as a reasonable alternative under NEPA? The

answer is that the Clean Air Act and NEPA inquiries have

different time horizons; while a project must show

conformity with the Clean Air Act at the time it is

approved, see 42 U.S.C. § 7506(c)(1) (1995), the

consideration of reasonable alternatives under NEPA

requires, as mentioned above, an assessment of traffic

needs in 2020. Accordingly the Administration did not

violate the National Environmental Policy Act by failing to

include a ten-lane bridge proposal as a “reasonable

alternative” in its Final Environmental Impact Statement.

Once an agency identifies the “reasonable

alternatives” to a proposed action, NEPA and Council on

Environmental Quality regulations also require an agency

to identify the “adverse environmental effects” of each

alternative. See 42 U.S.C. § 4332(2)(C\ii); 40 C.F.R. §

1502.16. The district court found fault with the

Administration’s treatment of the temporary “construction

impacts” that would arise during the period that the Bridge

was being built. Again, we disagree.

The district court focused on the brevity of the

“Construction Impacts” section of the Final EIS, which

covers only four pages and, according to the district court,

“is of such a broad and generic nature that it could apply to

practically any construction project undertaken by the

{Administration].” City of Alexandria, 46 F. Supp. 2d at

45. While the Administration’s discussion might have

been more thorough, we think the district court’s

assessment of the Administration’s treatment of these

issues too harsh. The Administration addresses a range of

expected construction impacts, including the

construction’s likely effect on local traffic, air quality, area

noise levels, water quality and wetlands, cultural

Ida

resources, and visual effects. The level of detail of these

assessments varies; it is worth noting, in light of the

district court’s focus on the terseness of the

Administration’s analysis, that some of the shorter

analyses are the most eminently reasonable. Take, for

instance, the Administration’s discussion of | traffic

impacts. The Administration acknowledges that the

construction project will affect traffic flow on several

Alexandria roadways, and may also cause potential delays

in the delivery of emergency services. It also offers a

range of mitigation strategies: six lanes of the Bridge will

be kept open at all times to minimize rush-hour

congestion; some access (even if circuitously routed) will

be maintained to all roads and areas; there will be no

disruption of marine traffic on the Potomac; the public will

be notified of temporary road closings through the news

media, the posting of signs, and the creation of a “project

activities” hotline. Perhaps appellees would prefer the

Administration to set forth in the Final EIS a

comprehensive plan detailing precisely which streets will

be closed, and which alternative routes will be established,

but that is not mandated by NEPA. See, e.g., Robertson v.

. Methow Valley Citizens Council, 490 U.S. 332, 353 (1989)

(“[I]t would be inconsistent with NEPA[ ] ... to demand

the presence of a fully developed plan that will mitigate

environmental harm before an agency can act.”).

We think the terseness of the Administration’s

discussion of construction impacts is justified for other

reasons as well. The Administration typically delays the

identification of “construction staging” sites—locations

used to store materials and equipment during project

construction—until the design stage of the project. As will

' be discussed infra, this practice is permissible under the

Statute and is arguably required by the Administration’s

governing regulations. Since the Administration did not

15a

identify the location of these areas, it of course could not

identify the accompanying environmental impacts with

precision. But this does not mean that the Administration

did not consider, on a more general level, what those

| impacts would be; the Final EIS identifies several potential

| staging areas, and notes that each of these sites are in

| “previously disturbed” areas with “minimal natural

resources.” -The Administration’s brevity is particularly

understandable given the numerous regulatory constraints

| that will limit the extent of construction activities. As the

| Administration notes, Maryland and Virginia require

_ construction contractors to limit noise levels in “noise

sensitive areas adjacent to the project area” to eighty

| decibels—a noise level comparable to- that currently

| produced by traffic on some stretches of the highway.

Similar federal and state regulatory provisions require the

mitigation of any short-term construction impacts on

wetland and aquatic resources, constrain the emissions of

dust from construction-related activities and equipment,

and limit the Administration’s selection of construction

staging areas. The Final EIS’ reference of these provisions

is important, as it indicates the Administration’s awareness

of the maximum impact that the construction may cause.

We also note that agencies are enjoined by the

Council on Economic Quality to develop environmental

impact statements that are “no longer than absolutely

necessary” and that discuss impacts “in proportion to their

significance.” 40 C.F.R. § 1502.2(b)-(c). The

Administration points out that each of the seven “build”

alternatives would have similar construction impacts, thus

making a detailed discussion of each of their effects

redundant. More fundamentally, while the disruption

caused by the construction of a project as significant as

this one is by no means trivial, it is relatively modest in

both scope and duration when compared to the |

16a

environmental impact of the project as a whole. To. be

sure, ‘there is a point at which an agency's analysis

ventures from the “tolerably terse to the intolerably mute,”

Greater Boston Television Corp. v. FCC, 444 F.2d 841,

~ 852 (D.C. Cir. 1970), but we simply do not think that the

Administration’s analysis of construction impacts reaches

that point.

iil.

' A.

The district court concluded that the Administration

also failed to identify adequately the effect that \its

preferred alternative will have on historic resources in the

project area, as is required under two distinct but

overlapping statutes: section 106 of the National Historic

Preservation Act and section 4(f) of the Department of

Transportation Act. Section 106, like NEPA, is essentially

a procedural statute; it requires that agencies “take into

account the effect of [an] undertaking on any district, site,

building, structure, or object that is included in or eligible

for inclusion in the National Register [of Historic Places].”

16 U.S.C. § 470f. To comply with section 106, an agency

must consult with state historic preservation officers to

ensure that historic properties in the project area are

thoroughly identified and the effects that the project will

have on them fully assessed. See 36 C.F.R. § 800.4-.5.°

The usual product of this consultation process is a

Memorandum of Agreement among the consulting parties

signifying agreement upon how the detrimental effects wil]

? The Council has recently promulgated regulations revising

section 106 process. 64 Fed.Reg. 27,044 (1999). Our citations are

i existed at the time the Administration

17a

be “taken into account.” Even where disagreement

precludes the completion of a Memorandum of Agreement

an agency may implement a project after receiving and

considering comments from the Advisory Council on

Historic Preservation. See id. at 800.6(c).

On the other hand, section 4(f), unlike the other

statutes at issue in this case, imposes a substantive

mandate on the Administration: It prohibits the agency

from taking an action that “uses” a historic resource unless

there is “no prudent and feasible alternative to using that

land” and the agency engages in “all possible planning” to

“minimize harm” to the sites.’ 49 U.S.C. § 303(c); see

also Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402 (1971). Department of Transportation regulations

require the Administration to “make the section 4(f)

approval” at the same time that it approves its final EIS or

issues its Record of Decision, 23 C.F.R. § 771.135(1); the

Administration ordinarily complies with this requirement

by publishing a separate “Section 4(f) Evaluation” along

with its final EIS, which identifies the project’s effects on

historic properties in the project area and the efforts the

agency has taken to mitigate those effects. In order to

comply with 4(f)’s substantive requirements, it is of course

necessary first to identify historic sites in the project area;

accordingly, we have observed that compliance with

section 4(f) is predicated upon completion of the section

106 process. See Corridor H Alternatives, Inc. v. Slater,

166 F.3d 368, 371 (1999).

” In addition to historical sites, other properties—including parks,

recreational areas, and wildlife preserves—are protected by section

4(f).

The central dispute between the parties is not about

whether, but about when, the Administration must

complete its identification of historic properties. The

Administration has been “taking into account” the effect of

the proposed project on historic sites since the project’s

inception, conducting several surveys which led to the

identification of 23 National Register-listed or National

terrestrial archaeological sites in the project area. The

Administration also identified and visited each National

determining, among other things, the “visual impacts” that

various alternative bridge proposals would have on each

site. The result was publication of a Memorandum of

Agreement and a Section 4(f) Evaluation with or prior to

the Administration’s approval of the project; these

documents identify seven historic sites that will be affected

by the project.and another six that may be, and offers plans

to minimize and mitigate the project’s impact on these

properties.

The district court did not question the overall

legitimacy or thoroughness of these studies.* (Indeed,

appellees cannot identify a single historic resource in the

* Appellees point to the Administration’s decision to-reduce the

size of the “Area of Potential Effects” in 1997, and suggest that the

appellees do not point to an ere outside of the new

“reduced” Area of Potential wil

by the project.

19a

project area that the Administration failed to “take into

account.”” Instead, the district court concluded that the

Administration violated section 106 by deciding to

postpone the identification of sites where it would conduct

certain _ construction-related _activities, including

construction staging areas (the locations where contractors

will store materials and mobilize construction activities),

wetland mitigation areas, and dredge disposal sites. While

the likely impact of these activities, which the

Administration describes as “ancillary,” are minimal when

compared to those of the project as a whole, it is at least

conceivable that they could ultimately affect section 106

properties. Acknowledging this possibility, but noting that

it usually defers the identification of such properties until

the “design stage” of a large highway project, the

Administration included promissory language in its

Memorandum of Agreement binding it to fulfill its section

106 responsibilities when selecting these sites. The district

court thought that these prospective terms ran afoul of our

° Amicus Sierra Club rather inventively that the

Administration failed to treat as a section 106/4() property the

Hunting Terrace apartment complex in Alexandria, but it is not

eligible for inclusion in the National Register of Historic Places,

and therefore is not a protected property under either section 106

or section 4(f). See 23 C.F.R. § 771.135(e); 36 C._F.R. § 800.2(e).

Showing similar ingenuity, appellees argue that the Administration

violated sections 106 and 4(f) because “the boundaries of

Freedman's Cemetery have still not yet been determined.” They

apparently believe that since the site’s precise location is unknown

(and, it seems, unknowable), it is by definition i ible to know

for certain the “effect” that the construction will on the site,

thus placing the Administration in violation of sections 106 and

4(f). To set forth the logic of this is to refute it. Cf

Hoonah Indian Ass'n v. Morrison, 170 F.3d 1223, 1231-32 (9th

Cir.1999) (inability of Forest Service to identify location of Indian

march justified decision not to designate it a section 106 property).

20a

recent decision in Corridor H Alternatives, Inc. v. Slater,

166 F.3d 368 (D.C. Cir. 1999), in which we held that the

Administration could not postpone the entire section 106

process until after it issued its Record of Decision.

We think that district court misconstrued our

holding in Corridor H. In that case, the Administration

postponed the entire section 106 process for a major

highway corridor; its Record of Decision instead adopted

a “Programmatic Agreement” dividing the highway into

fourteen segments, and promised that it would not begin

construction of a particular segment before completing the

section 106 process for that segment. We held that this

Agreement impermissibly abrogated the Administration’s

responsibility to assess the project’s impact on historic

properties during the planning stages of the project. See

166 F.3d at 373. But that is not the case here, since the

Administration has identified historic properties along the

entire project corridor and documented its findings prior to

approval in both a Memorandum of Agreement and a

Section 4(f) Evaluation. All that has been deferred is the

identification of sites that might be impacted by a small

number of “ancillary activities.” This is quite

distinguishable from the “Programmatic Agreement” we

proscribed in Corridor H.

The Administration did not postpone the

identification of these properties “merely to avoid having

to complete its 4(f) and 106 analyses,” as the district court

said. 46 F. Supp. 2d at 47. As the Administration points

out, the precise identification of these sites requires

“substantial engineering work” that is not conducted until

the design stage of the project; indeed the Administration

is required to conduct such “final design activities” after it

completes its Final EIS. 23 CF.R. § 771.113(a){iii).

Furthermore, then-existing Council regulations explicitly

2la

encouraged flexible, staged planning in the section 106

process. See 36 C.F.R. § 800.3(b) (section 106 procedures

“may be implemented ... in a flexible manner”); 36 C.F.R.

§ 800.3(c) (section 106 regulations should not be

interpreted to “prohibit phased compliance at different

stages in planning.”). Appellees respond that- the

Administration could nonetheless “feasibly” identify these

sites without doing “final design” plans for the project.

But the standard of “feasibility,” while relevant to whether

an agency may use 4(f) properties, has no application in

determining when the agency must identify them. We

think that, particularly where the sites postponed are

merely ancillary to the project, section 106 and the

identification prerequisites of section 4(f) do not forbid the

rational planning process adhered to by the

Administration.

We also think that the Administration satisfied

section 4(f)’s substantive provisions- Appellees barely

bother to argue that the Administration did not comply

with section 4(f)(1)’s requirement that it consider all

“prudent and feasible alternative[s]” to using protected

properties. The reason for this gap in appellees’ otherwise

vigorous presentation is obvious enough. For while the

Administration is required to give the protection of 4(f)

property “paramount importance” in determining whether

an alternative is “prudent,” Overton Park, 401 U.S. at 412-

13, we have squarely held that an alternative cannot be a

prudent one if it does not satisfy the transportation needs

of the project. See Citizens Against Burlington, 938 F.2d

at 204. In light of this limitation, appellees can only win

under section 4(f){1) if they establish one of two

propositions: They must show that a narrower Bridge

satisfies the transportation needs of the project, aa

ola

must offer a “prudent” project alternative that does not

impact the 4(f) properties used by the Administration's

preferred design. The former question we have already

resolved in the Administration's favor, and appellees do

not advance an alternative highway route that has a less

significant impact on 4(f) properties.

Appellees do argue with greater enthusiasm that the

Administration violated section 4(f)(2)’s requirement that

the agency engage in “all possible planning” to minimize

harm to 4(f) properties, but this argument is equally

unpersuasive. Tc begin at the broadest level of generality,

appellees do not question the Administration’s express

findings that, among the seven “prudent and feasible”

alternatives compared in the Final EIS, the preferred

alternative “results in the least overall impact to section

4(f) resources.” Cf Druid Hills Civic Ass'n, Inc. v. FHWA,

772 F.2d 700, 716 (11th Cir. 1985) (noting that “section

4(f)(2) requires a simple balancing process which totals the

harm caused by each alternate route to section 4(f) areas

and selects the option which does the least harm”). At the

site- specific level, the Administration made several

Significant project modifications to avoid or minimize

impacts to section 4(f) properties, including altering an

interchange design to avoid impactirlg a schoolground and

eliminating the construction of a temporary Beltway

Overpass to minimize the risk of harm to Freedman’s

Cemetery. Where the Administration could identify no

feasible and prudent plan for avoiding impact to a 4(f) site,

it offered plans to mitigate that impact; for instance, it

proposed substantial improvements to Jones Point Park,

arguably the most significant 4(f) property impacted by the

project. Further recitation of the Administration’s

mitigation efforts is possible, but unnecessary; suffice it to

say that, after a thorough review of the record, we have

little difficulty concluding that the Administration

23a \

complied with its responsibilities under section 4(f) of the

Department of Transportation Act.'°

* * * *

During the course of our consideration of this case,

appellees have attempted to bolster their position by

pointing to the opposition of prominent legislators to the

project, and by noting the hurdles to ultimate

congressional approval that still lie in the Administration’s

path. These political impediments are irrelevant to us but

they indicate where appellees should concentrate their

efforts. We have been admonished by the Supreme Court

with respect to the very statute that is at the heart of this

case to avoid using its requirements as a vehicle to impose

our own judgment. Vermont Yankee, 435 U.S. at 554. Our

obligation is not to further our beau ideal of a bridge

design, but merely to ensure that the procedures mandated

by these statutes have been complied with. We hold that

the Administration has satisfied the requirements of

NEPA, the National Historic Preservation Act, and the

Department of Transportation Act, and reverse.

So ordered.

have

that our holding it could defer the identification of section 4(f)

properties that might be impacted by construction and

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 99-5220

City of Alexandria, Virginia, Appellee,

Rodney E. Slater, Secretary, U.S. Department

of Transportation, et al., Appellants

Alexandria Historic Restoration and Preservation

Commission, Coalition for a Sensible Bridge, Inc. and

Historic Alexandria Foundation, Appellees.

March 7, 2000

Before: Silberman, Williams, and Randolph, Circuit

Judges

ORDER

Upon consideration of appellees’ petition for

rehearing filed February 1, 2000, it is

ORDERED that the petition be denied.

Per Curiam

For the Court:

Mark J. Langer, Clerk

By: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 99-5220

City of Alexandria, Virginia, Appellee,

, »

Rodney E. Slater, Secretary, U.S. Department

of Transportation, et al., Appellants

Alexandria Historic Restoration and Preservation

Commission, Coalition for a Sensible Bridge, Inc. and

Historic Alexandria Foundation, Appellees.

March 7, 2000

Before: Edwards, Chief Judge; Silberman, Williams,

Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel

and Garland, Circuit Judges

ORDER

Upon consideration of appellees’ petition for

rehearing en banc, and the absence of a request by any

member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

For the Court:

Peep ores eo Mark J. Langer, Clerk

: By: /s/ Robert A. Bonner

Robert A. Bonner

Deputy Clerk

Circuit Judge Henderson did not participate in this matter.

26a

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

City of Alexandria, Virginia

Plaintiff,

Alexandria Historic Restoration

and Preservation Commission, et

al. 3 Civil Action No.

Plaintiff-Intervenors 98-0251 (SS)

Rodney EE. Slater, US.

Department of Transportation, et

al.,

Defendants

MEMORANDUM OPINION

This matter comes before the Court on Cross-

Motions for Summary Judgment.'! The relevant

undisputed facts are set forth below.

The Woodrow Wilson Bridge (the “Bridge”) is a

six-lane drawbridge linking interstates I-495 and I-95. It is

designed to carry approximately 75,000 vehicles per day

, The named Plaintiff, the City of Alexandria, is no longer a party

to this action. Accordingly, reference is made to Plaintiff-

Intervenors only in the body of the opinion. \

27a

across the Potomac river. It lies a few miles south east of

the Nation’s Capitol and just north of the historic City of

Alexandria, Virginia. The Bridge was opened to traffic in

1961. Added use in recent years has caused increased

traffic problems on the Bridge and at its interchanges.

Travel demand across the Bridge now far exceeds the

capacity for which it was designed. Projected travel in

2020 is estimated around 275,000 vehicles per day,

requiring up to 18 lanes through the Bridge corridor. In

part because of these projections, Congress passed the

Woodrow Wilson Memorial Bridge Authority Act of 1995,

providing for large-scale improvements at the river

crossing site. It is the general consensus that the Woodrow

Wilson Bridge needs to be replaced.

On November 25, 1997, the Federal Highway

Administration (“FHWA”) issued its Record of Decision

(“ROD”) approving a $1.6 billion highway project (the

“approved project”) which calls for replacing the Bridge

with two parallel drawbridges, each with space for four

general purpose lanes, one merge/diverge lane, and future

accommodation of one High Occupancy Vehicle (“HOV”)

or “other type” lane.? The two new bridges would increase

by about 260% the width of the river crossing now served

by the Bridge and would rise an additional twenty feet

above the Potomac River. The approved project also

entails reconstructing a five mile stretch of the connecting

interstate routes 495 and I-95 to accommodate twelve

lanes: eight general purpose lanes, two merged/diverge

lanes and two HOV lanes. In addition, the approved

project authorizes substantial redesign and reconstruction

of the four interchanges on either side of the bridge. The

? Hereinafter, the “8-2-2” lane configuration.

28a \

drawbridges would pass through Alexandria, Virginia’s

Historic District thirty feet south of the Bridge’s present

location.

Alexandria is one of America’s most historic cities.

Approximately one square mile of Alexandria is listed as a

National Register Historic District. This District preserves

the atmosphere of an early Virginian town, and contains

three — individually-designated National _ Historic

Landmarks.’ The approved project would pass through the

southernmost portion of Alexandria four blocks south of

the Alexandria National Historic Landmark District.

1. NEPA Compliance

The initial step to replace the Woodrow Wilson

Bridge began in 1989 when the FHWA held a Bridge

improvement design competition. While nothing

substantial emerged from this effort, on May 17, 1990, the

FHWA published a Notice of Intent to prepare a Draft

Environmental Impact Statement (“DEIS”). The Notice

stated that the purpose of the DEIS was to evaluate

proposals to “improve the Woodrow Wilson Bridge and

the I-95 approach roadway network between Telegraph

Road in Virginia, and Indian Head Highway in Maryland.”

55 Fed. Reg. 20556-02 (May 17, 1990). ;

Pursuant to the May 17 Notice, the first DEIS was

published in August 1991. Joint Appendix at pp. 003371-

3757.* It-contained detailed evaluations of six alternatives

requiring construction of a new river crossing and

> Gadsby’s Tavern, Christ Church, and the Franklin and Armfield

Slave Pen.

* Hereinafter, reference to the Joint Administrative Record will

appear as “JA.”

29a

improved interchanges (so-called “build” alternatives), and

an evaluation of one alternative requiring only repair of the

existing Bridge (the “no build” alternative). All of the

build alternatives presented in the 1991 DEIS were

comprised of twelve lanes or more. JA003376-78.

Furthermore, the 1991 DEIS twelve-lane buiid alternatives

all called for physical separation of the local and express

traffic, and complete reconstruction of certain

interchanges. Despite the forseeable enormity of the

construction required by the project, the 1991 DEIS

included only three pages of analysis of potential

construction impacts resulting from the various build

alternatives.

In early 1992 the FHWA formed an independent

review team (“IRT”) to review and identify areas in the

1991 DEIS that might be challenged in court. JA003878.

The IRT was composed of government attorneys and

related professionals from the FHWA, Maryland, Virginia

and the District of Columbia. JA003880. Although the

IRT stated that the DEIS was “adequate,” it found several

serious deficiencies in the 1991 DEIS, including failure to

discuss construction impacts adequately, failure to

critically analyze the assumption that HOV lanes would be

added to the Beltway, and failure to evaluate additional

regional impacts adequately. Additionally, the IRT noted

that the National Historic Preservation Act (“NHPA”)

Section 166 analysis had not yet been initiated. 5A003879.

Shortly after the IRT concluded its review the FHWA ran

a traffic analysis for a ten-lane river crossing. JA003898.

In June, 1992, the FHWA formed a Coordination

Committee, comprised of elected officials and senior

government executives from affected jurisdictions to

coordinate project development. The FHWA intended to

arrive at its preferred alternative project design through a

30a

“funneling” process. Accordingly, in the Spring of 1994

the Coordination Committee solicited suggestions for

project alternatives from all interested individuals and

organizations. | While most of the Suggestions the

Committee received dealt with the river crossing portion of

the project, the entire five-mile corridor was open for

comment. In evaluating suggestions, the Committee

applied a stepwise process of elimination. The Committee

first weeded out suggestions it deemed duplicative, beyond

the scope of the study, technically infeasible, or not in

keeping with the project’s purpose and need.

After initial screening, the FHWA combined the

remaining suggestions into “unique and distinct crossing

options and project area improvements.” JA000068.

These were then merged into a set of “end-to-end”

alternatives: i.e. alternatives covering all facets of the

project. The Coordination Committee reduced the number

of end-to-end alternatives by applying three Measures of

Effectiveness (“MOE”). The final MOE application

results were presented in the January 1996 Supplemental

Draft EIS (“SDEIS”). The six 1996 SDEIS build

alternatives all had twelve lanes. Thus, the January 1996

SDEIS contained six “end-to-end” project alternatives, the

only major design difference between them being the form

(e.g. bridge or tunnel) and location of the river crossing.

2. CAA Compliance

Pursuant to the Clean Air Act, in May 1996, the

Region II Administrator of the FHWA asked the

Transportation Planning Board (“TPB”) to determine

regional air quality conformity for a Bridge replacement

with twelve lanes but “opening with only 10-lanes until the

conditions for multi-modal, regional travel are reached.”

[Ex. 75.] In July, 1996, the TPB issued a draft conformity

analysis for a “new 10 lane facility with either a $1.00 or

3la

$1.50 toll each way.” [Ex. 76 at JA005185. para 130.]

The draft conformity analysis found that a ten-lane bridge

replacement with a $1.00 to $1.50 toll would conform to

National Capital Region air quality standards.°

On September 27, 1996, days after the close of the

comment period on the July 1996 SDEIS and nine days

after the conformity assessment was approved, the

Coordination Committee selected its Preferred Alternative.

Then, pursuant to NEPA, the study team began preparation

of the Final EIS (“FEIS”). The FEIS was released on

September 2, 1997.

The FEIS explains the omission of ten-lane

alternatives by stating that such configurations “cannot

satisfactorily address the transportation needs of the

region.” FEIS JA000109-113. The FEIS reports that the

ten-lane, no-HOV option was considered “in the early

stages of the study ... [but] was dropped at that time ...

because it was insufficient from a functional, safety and

operational standpoint.” JA000109. That conclusion

follows solely from the reduced capacity of a ten-lane

versus a twelve-lane crossing. At the same time, the FEIS

notes that social, cultural and environmental impacts

produced by a ten-lane alternative would be “essentially

the same” as those produced by a twelve-lane alternative.

JA000113. To support its conclusion, the FEIS includes a

one page “Environmental Impact Matrix” purporting to

break down the impacts of ten-and twelve-lane

configurations with respect to fifteen environmental, social

and cultural factors. JA000465. This table, in essence,

* The concept underlying imposition of a toll is based on the

theory that a substantial toll will “drive away” certain price

conscious prospective users.

32a

purports to demonstrate that the cumulative negative

effects on cultural, natural, and social resources of a

twelve-lane alternative are not substantially different from

those produced by a ten-lane alternative.

It is undisputed that alternatives with fewer than

~ twelve lanes, without HOV lanes and physical separation

of local and express traffic, were not subjected to detailed

NEPA analysis. FHWA has maintained that such

alternatives were properly excluded from NEPA analysis

since they would not meet the purpose and need of the

project.

3. NHPA and DOTA Compliance

Beginning in 1991 and pursuant to Section 106 of

the National Historic Preservation Act and Section 4(f) of

the Department of Transportation Act (“DOTA”), the

FHWA began taking into account the potential effects of

the project on sites eligible for listing on the National

investigations identifying cultural resources which might

be adversely affected by the project, and solicited

comments from interested parties. Between 1996 and

1995, the FHWA continued conducting cultural resource

investigations which included, inter alia, research at the

relevant State Historic Preservation Offices, the Library of

Congress, and the National Archives. In addition, the

FHWA coordinated archaeological excavations, aerial

photographic surveys, and other field work aimed at

identifying cultural and historic resources. JA000230.

In 1995, the FHWA defined the area of potential

effects (“APE”) of the project, demarcating the area which

might be negatively impacted by the project. In January

1996, the FHWA issued a Cultural Resources Technical

Report (“CRTR”). The CRTR purported to serve as an

33a

“integrated compilation of all previous terrestrial and

underwater archaeological/historic resource surveys,

investigations, and determinations of effect,” according to

the FHWA. JA005629. Also in 1996, the FHWA

circulated two proposed Memoranda of Agreement

(“MOA”). Under Section 106 implementing regulations,

the MOA represents formal agreement among the

consulting parties as to how adverse effects of the project

will be taken into account. 36 C.F.R. § 800.5. The two

proposed 1996 MOAs were not signed by the consulting

parties. Subsequent to the 1996 CRTR, the FHWA

performed additional cultural and technical studies. In

1997, the FHWA substantially reduced the size of the

project’s APE, and circulated three more proposed MOAs.

See JA006313. Signature to the final, October 1997, MOA

was made predicate to future participation in identification

of protected properties and mitigation efforts. See

JA002100, JA006839. The final, October 1997, MOA

was signed by the City of Alexandria, the District of

Columbia State Historic Preservation Officer, the

Maryland State Historic Preservation Officer, the Virginia

State Historic Preservation Officer, the National Park

Service, and the FHWA. Several interested parties did not

sign the final MOA, including the Alexandria Historical

Restoration and Preservation Commission and Old Town

Civic Association. The City of Alexandria, which signed

the final MOA, noted in an addendum to its signature page

“the City ... continues to believe that the FHWA has not

adequately taken into account the effect of the [approved

project] on historic resources, as required by Section

106{[of the National Historic Preservation Act].”

JA006841.

34a

ANALYSIS

1. Standard of Review

Summary judgment is appropriate if there is no

genuine issue as to any material fact and the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c). In considering a motion for summary judgment the

Court must assume the evidence of the non-movant, “and

States, 445 F.Supp. 832, 835 (D.D.C.1978) (“summary

the agency's action will be overtumed if it is found to be

arbitrary, capricious, an abuse of discretion, or otherwise

28 (D.D.C.

ark v. Volpe,

| appropriate as the questions presented before this Court are

solely legal in nature.

| II. Compliance with the Clear Air Act

Congress enacted the Clean Air Act (“CAA”) in

order “to protect and enhance the Nation's air quality, to

initiate and accelerate a national program of research and

| development designed to control air pollution, to provide

| technical and financial assistance to the States in the

| execution of pollution control programs, and to encourage

the development of regional pollution control programs.”

42 U.S.C. § 7401(b) (1988). Pursuant to the CAA, to

protect the public health, the EPA established National

Ambient Air Quality Standards (“NAAQS”) which reflect

the maximum concentration levels of particular pollutants

| (criteria pollutants) allowable. See 42 U.S.C. § 7409

(1991). Responsibility for achieving and maintaining the

r NAAQS falls on the states, which are required to submit

| state implementation plans (“SIPs”) to the EPA specifying

| the manner in which they will achieve and maintain the

| NAAQS for various criteria pollutants. See 42 U.S.C. §

| 7407. The EPA and the states have designated different

| regions according to the level of criteria pollutants in each

| area. See id. A region which has not attained the NAAQS

for a certain criteria pollutant is designated a

“nonattainment” area. The National Capital area where

the approved project is located has been designated a

“nonattainment” area for Ozone.

| In 1990 Congress amended the CAA in an effort to

| spur progress toward attainment of the NAAQS. A key

: component of the 1990 CAA amendments was the addition

of a requirement that all federal agencies and

instrumentalities undertaking activities in a nonattainment

area ensure that their project will conform to the relevant

SIP. This is known as the “conformity requirement”. In

36a

order to conform, the federally approved project must not

cause or contribute to new violations, increase the

frequency or severity of existing violations, or delay

attainment of the NAAQS. See 42 U.S.C. § 7506(c)(1)(B).

This requirement is repeated in the EPA regulations

pertaining to federally assisted or approved transportation

projects. See 40 C.F.R. 93.101 et seq. (requiring a

conformity analysis for all transportation projects prior to

agency approval, funding or implementation).

In May, 1996, the FHWA conducted a conformity

analysis for a ten-lane river- crossing with tolls pursuant to

the Bridge project. In 1997, the FHWA issued its ROD,

approving a twelve-lane river crossing. The Plaintiff-

intervenors argue the FHWA must perform a conformity

analysis for a twelve-lane river crossing with no tolls, and

that the ten-lane, with tolls conformity analysis is

insufficient under the CAA.

Defendants state they do not need to perform a

conformity analysis for the approved project because it is

not significantly different from the ten-lane project that

was found to conform. Specifically, they contend that

since initially only ten lanes will be opened, the design

scope of the approved project as initially operated does not

_ differ from the ten-lane design assumed for the purposes of

the conformity analysis. They admit, however, that when

the river crossing becomes twelve lane operational as

anticipated, they will have to perform a new conformity

analysis.°

: Defendants put forth the same argument with respect to the issue

37a

opine wen

Neither the plain language of the CAA, nor the

applicable regulations, provide the agency any such

leeway. The statute and regulations state a conformity

analysis must be completed prior to the approval, adoption,

or implementation of a project. See 42 U.S.C. § 7506; 40

C.F.R. § 93.102. The EPA regulations define a project in

toto, not, as only that part of a project that is constructed

and used initially. See 40 C.F.R. § 93.101. The logical

extent of defendant’s argument, if adopted, would be to

allow an agency to define a project differently depending

on what particular purpose the agency has in mind at the

time. For example, for NEPA purposes, the agency has

defined the project as a twelve lane project; Yet, for CAA

purposes, the approved project is only ten lanes in size.

Such inconsistency in agency reasoning is unacceptable.

Plaintiff-intervenors further claim that the FHWA

must perform another conformity analysis because the size

of the interchanges has changed. Again, the FHWA

disagrees. Defendants argue that consideration of the size

of interchanges is immaterial for conformity analysis

purposes. They note the regulations cite only to the

number and location of the interchanges, not the size. This

argument ignores the plain language of the regulation

which states that design scope “includes” such things as

the “number and location of interchanges ... etc”. See 40

C.F.R. § 93.101 (emphasis added). This language does not

limit solely to a consideration of the location and number

of interchanges. The regulation contemplates otherwise.

In this instance, the approved project consists of expanded

provision of tolls on the bridge is uncertain, as the states of both

Maryland and Virginia oppose tolls. If the approved project does

not include tolls, the Defendants maintain, a new conformity

analysis will be done.

38a

interchanges necessary to accommodate the larger carrying

capacity of a twelve-lane bridge. Just as the number of

lanes may have an effect on air quality, due to the increase

in emissions caused by more vehicles, so may the size of

interchanges. Defendants must consider this factor in

analyzing the project’s impact on regional air quality

before approval of the preferred alternative in the ROD.’

Ill. Failure to Comply with NEPA’s

Reasonable Alternatives Requirement

Plaintiff-intervenors allege Defendants violated the

National Environmental Protection Act (“NEPA”) by

failing to analyze all reasonable alternatives to their

preferred action when preparing the FEIS, and by failing to

take the required “hard look” at the environmental and

other impacts of the preferred action.

NEPA states that any federal agency undertaking a

“major federal action{]” likely to “significantly affect the

human environment” must prepare an Environmental

Impact Statement. The EIS must provide a “detailed

Statement” of the environmental impacts of the action,

possible alternatives, and measures to mitigate adverse

effects of the proposed action. See 42 U.S.C. §

4332(2)(C). While NEPA does not mandate any particular

result, it requires the agency to follow particular

procedures in its decision-making process. The purpose of

these procedures is to ensure the agency has before it the

” The EPA informed the FHWA ie, Soap, 1997 that it had

“concerns about the air uality analysis o project in the FEIS”.

Specifically, EPA stated “it is not clear that the proposed price

will conform to the Clean Air Act implementation goals”. June

11, 1997 Letter to Mr. David C. Lawton, Director Office of

Planning and Program Development from EPA.

39a

ee ee

best possible information in order to make an “intelligent,

optimally beneficial decision” and to ensure the public is

fully apprized of any environmental risks that may be

associated with the preferred action. Calvert Cliffs’

Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n,

449 F.2d 1109, 1114 (D.C.Cir.1971).

A key component of the EIS is the analysis of

“reasonable alternatives.” 40 C.F.R. § 1502.14(a).

Agencies must “rigorously explore and objectively

evaluate all reasonable alternatives” prior to selecting a

specific project. Sierra Club. v. Watkins, 808 F.Supp. 852

(D.D.C.1991). Alternatives that present a feasible solution

to the project’s stated purpose and need of the project are

reasonable. See Citizens Against Burlington, Inc., v.

Busey, 938 F.2d 190, 193-94 (D.C. Cir. 1991). While an

agency may decline to give rigorous consideration to

proposals that fall far short of the project’s purpose and

need, an agency may not eliminate an otherwise

reasonable alternative solely because it presents only a

partial solution to the stated purpose and need for the

project. See NRDC v. Morton, 458 F.2d 827, 836 (D.C.

Cir. 1972). Indeed this Circuit has held that it is

unreasonable “to disregard alternatives merely because

they do not offer a complete solution to the problem.” Jd.

at 836. | However, agencies need not consider every

conceiveable alternative. In determining the appropriate

set of reasonable alternatives to be given “rigorous”

consideration in the EIS, agencies must be guided by a

“rule of reason.” Busey at 194-195.

A second requirement of NEPA is that agencies

take a “hard look” at the environmental impacts of their

action. Agencies must consider the environmental effects

of their actions “to the fullest extent possible” in order to

satisfy this hard look requirement. See 42 U.S.C. § 4332.°

The D.C. Circuit has interpreted this statutory provision to

require that “environmental issues be considered at every

important stage in the decision making process.” Calvert

Cliffs’, 449 F.2d at 1118. In addition, the FHWA’s own

NEPA policy requires the agency give “balanced

consideration” to transportational and safety factors,

environmental impacts, and national, State, and local

environmental goals in selecting its preferred alternative.

See 23 C.F.R. § 771.105(b).

A. Standard of Review

A court, in reviewing an alleged NEPA violation, is

limited to determining whether the agency complied with

the statute’s procedural requirements. Busey at 195. So

long as an agency has considered all reasonable

alternatives and taken the requisite “hard look” at

environmental factors, its substantive decision will not be

overturned by a court unless it is “arbitrary, capricious, or

an abuse of discretion.” See Marsh v. Oregon Natural

Resources Council, 490 U.S. 360, 377 (1989).

Notwithstanding the judicial deference given to an

agency’s substantive choice, the D.C. Circuit has required

“strict compliance” with NEPA’s “inflexible” procedural

requirements. See 449 F.2d at 1109.

* The CEQ regulations implementing NEPA mirror this statutory

requirement. 40 C.F.R. §§ 1502.1 and 1502.2(b). (An agency’s

EIS must provide a “full and fair” discussion of the significant

environmental impacts” of the project.)

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ren

B. Failure to Analyze all Reasonable Alternatives

Plaintiff-intervenors contend the FHWA did-not

consider “all reasonable alternatives” prior to selecting its

preferred action. They allege the FHWA predetermined

the project’s lane configuration and unreasonably failed to

consider the diminished environmental impact of a ten-

lane alternative with smaller interchanges.

Defendants claim the agency did in fact consider an

appropriate range of reasonable alternatives, including ten-

and eight-lane _ bridge-crossings.” According to

Defendants, the FHWA gave ample consideration to a ten-

lane alternative, and took a hard look at the environmental

impacts of such a project.'® Indeed, at several places in the

FEIS the FHWA notes that the ten-lane project was

rejected after such consideration because it failed to meet

the purposes and needs of the project. Specifically, the

FEIS states that any bridge-crossing with fewer than

twelve lanes and no HOV capacity could not alleviate

projected future traffic congestion. Furthermore, the FEIS

notes that the environmental, socio-economic, and cultural

benefits of a ten-lane crossing are minimal. To support

this position Defendants cite to a one-page “Environmental

Impact Matrix” (“Matrix”) in the FEIS which compares

* In 1995 the Coordination Committee dropped the eight-lane

alternative because it was projected that it would not alleviate

traffic congestion on and around the bridge, nor could it

accommodate HOV lanes on the river crossing.

various costs and benefits of a ten-lane project as opposed to a

twelve lane. In addition, they cite to a May 1996 retreat at which

time the Coordination Committee discussed a ten lane alternative,

weighed the comparative environmental and other impacts, and

decided that environmenta! benefits of the ten lane were minimal.

42a

various ten and twelve lane alternatives vis-a-vis {iiteen

environmental, socio-economic, and cultural factors. See

JA000465.

This Court finds that the FEIS does not support

FHWA’s claim that they gave the ten-lane alternative

adequate consideration. The Environmental Impact Matrix

does not begin to give a complete indication of the

environmental, social, and cultural costs and benefits of a

ten-lane versus a twelve-lane crossing. For example, the

Matrix shows that both ten- and twelve-lane alternatives

would affect five public parks. Yet no indication is given

as to the nature or extent of any such impact on the five

parks. The analysis of air impact in the Matrix

demonstrates this point even more fully. The Matrix

indicates no adverse impact[.]

Additional deliberation is required before the

agency can conclude that its twelve lane proposal will

have zero impact on air quality, when it has yet to

undertake any conformity analysis as required by the

CAA. Indeed, the EPA, in reviewing the draft FEIS,

indicated that the FEIS’s analysis of “air impact” was

inadequate. See June 11, 1997 Letter to. Mr. David C.

Lawton, Director Office of Planning and Program

Development from EPA.

The consideration that the FHWA gave to a ten-

lane alternative prior to the publication of the FEIS

demonstrates the agency’s insufficient analysis as well. In

soliciting proposals for its 1990 concept competition, the

agency specified that all plans be a minimum of fourteen

lanes and have HOV capacity. Thus, in its first Draft EIS,

the agency did not consider a ten-lane alternative. Then,

between 1992 and 1996 when the Coordination Committee

was reviewing proposals, the narrowing of alternatives was

based on a set of criteria that focused primarily on

43a

transportation and safety issues[.} JA000109. This

narrowing was done without the benefit of any detailed

analysis of the environmental and cultural costs and

benefits of a ten-lane or smaller bridge-crossing.

Defendant’s state that they did not need to give

detailed consideration to a ten-lane alternative because it

did not meet the agency’s stated purpose and need for the

project. The FEIS in its “Project Need” statement

articulates the problem as one of addressing the future

transportation needs of the region within the context of the

Constrained Long-Range Plan for the National Capitol

Region. Such a broad statement of purpose and need

hardly provides an unequivocal basis for eliminating ten-

lane alternatives from consideration without rigorous”

comparison of the environmental, socio-economic, and

cultural benefits. Moreover, the limited analysis the

FHWA did on a ten-lane alternative demonstrates that it

could possibly provide a partial solution to the problem.

The FHWA’s own traffic analysis of a ten-lane alternative

demonstrates that it can handle up to 295,000 vehicles per

day. This is close to total satisfaction of the estimated

maximum 300,000 vehicles per day which will cross the

river in 2020. To eliminate all ten-lane alternatives from

“rigorous” consideration simply because they fall short of

the total future estimated demand by 2 percent does not

stand up to the rule of reason which must guide the agency

in making its determination.

Given that a ten-lane alternative presents a feasible

alternative, the FHWA should have assessed closely the

benefits associated with it. The three pages discussing the

environmental and other benefits of a ten-lane project, and

the Matrix comparing them, falls short of providing the

kind of detailed analysis necessary to support an agency's

decision under NEPA."!

There is a logical inconsistency in the agency’s

reasoning. First, the FHWA attempts to support its

decision under NEPA by stating that a ten-lane bridge

without HOV lanes could not satisfy the “statement of

purpose and need”. In contrast, for purposes of the CAA,

the FHWA characterizes the project as a ten-lane river

crossing The FHWA’s effort to re-characterize the

fundamental nature of the approved project so as to satisfy .

both NEPA and CAA cannot be reconciled. The river

crossing is either ten lanes or it is twelve. It cannot be

both.

C. Failure to Adequately Assess Construction Impacts

The Plaintiff-intervenors further claim the FHWA

failed to take the required “hard look” at the immediate

and long-term impacts associated with the construction of

the approved project. Specifically, they point to

insufficient identification and assessment of the

construction impacts in the FEIS.

NEPA requires the agency make available to public

officials and citizens the environmental impacts of an

action prior to selecting a preferred course of action. See

Simmons v. U.S. Army Corps of Engineers, 120 F.3d 664

'' Obviously, reconsideration of the lane configuration will require

further review of the various interchange designs that accompany

the river-crossing portion of the project. In light of this Opinion it

is assumed the agency will consider all reasonable interchange

alternatives as part of its reconsideration of final end-to-end

alternatives. Therefore, this Court need not consider in detail

Plaintiff-intervenors claim that defendants failed to consider

reasonable alternatives to its “preferred” interchange designs.

45a

(7th Cir. 1997). In order to satisfy this requirement, the

FEIS must identify and analyze the effects the project is

projected ti have on environmental factors. See NRDC v.

Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988). The 1997

FEIS prepared by the FHWA in anticipation of their ROD

failed to do this. Defendants cite to approximately four

pages in the FEIS which discuss the construction impacts

likely to be associated with the project as evidence of their

compliance. However, the discussion of construction

impacts is of such a broad and generic nature that it could

apply to practically any construction project undertaken by

the FHWA. For example, in identifying and quantifying

the amount of air emissions, the FEIS flatly states “the

construction phase has the potential of temporarily

impacting ambient air quality due to emissions from

construction equipment and dust from earthwork and the

utilization of unpaved roads.” The FEIS neither attempts

to quantify such air emissions, nor describes how such

impact could affect the human and non-human

environment. Discussions of noise,'? visual,'? and other

impacts in this section are similarly vague and non-

informative. Such terse summaries of the likely effects do

not come close to providing the public with the kind of

information necessary to weigh the environmental costs

and benefits of the project. The Environmental Protection

Agency noted as much in its assessment of the Draft FEIS.

The EPA stated that the FEIS should present a “worse case

'? The FEIS predicts that “an increase in project noise levels

would occur during the construction of the project” and

that a noise study “will be performed during design phase of

the study to analyze the potential noise impacts of specific

construction impacts.” JA000470.

'> The FEIS states only that “views may be temporarily affected.”

46a

quantitative estimate of potential acreage impacts to

wetlands and aquatic resources”, expand on the

development of a mitigation plan, and identify the impacts

on the federally-protected bald eagle and osprey. See June

11, 1997 Letter to Mr. David C. Lawton, Director Office

of Planning and Program Development from EPA. The

agency did not accept the EPA’s recommendation in

finalizing the FEIS.

[IV]. The FHWA Failed to Complete its Identification

of Protected Properties under the NHPA

Federally funded highway projects must comply

with both Section 106 of the National Historic

Preservation Act, 16 U.S.C. §§ 470f, 470h-2(f), and

Section 4(f) of the Department of Transportation Act, 49

U.S.C. § 303.

To satisfy Section 4(f), the FHWA must first

identify all protected properties that may be affected by a

potential project. See Corridor H. Alternatives, Inc. v.

Slater, 982 F.Supp. 24, 31 (D.D.C.1997). A property is

protected under the DOTA if it is “a park, recreation area,

or wildlife and waterfowl refuge of national, State, or local

significance, or land of an historic site of national, State, or

local significance (as determined by the Federal, State, or

local officials having jurisdiction over the park, area,

refuge, or site).” 49 U.S.C. § 303(c). The FHWA must

then determine if the project will “use” any protected

properties. Finally, if the project calls for “use” of

protected properties, the Secretary of the FHWA must do

“all possible planning” to minimize harm to those

properties. 49 U.S.C. § 303(c)\(2); See Druid Hills Civic

Ass'n, Inc. v. Federal Highway Admin., 833 F.2d 1545,

1547-48 (11th Cir. 1987).

47a

Section 106 of the National Historic Preservation

Act provides that any agency having jurisdiction over a

federally-assisted project “shall, prior to the approval of

expenditure of any Federal funds on the undertaking ...

take into account the effect of the undertaking on [any

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

or eligible for inclusion in the National Register].” 16

U.S.C. § 470f. Under regulations implementing Section

106, the FHWA is required to identify historic properties

within the area of potential effects of the project, and must

perform an analysis of the likely impacts on those

properties. See 36 C.F.R. Part 800 (1998); Colorado

Indian Tribes v. Marsh, 605 F.Supp. 1425, 1435-38

(C.D.Cal.1985).

It is clear that compliance with Section 4(f) is

partially predicated upon completion of a Section 106

analysis of impacts on historic properties. The regulations

implementing Section 106 and Section 4(f) define historic

properties in substantially the same way. Sections 4(f)

regulations identify hiistoric properties as “all properties on

or eligible for the National Register of Historic Places.”

23 C.F.R. § 771.135(e). Regulations implementing

Section 106 define historic properties as all properties

listed on or eligible for listing on the National Register of

Historic Places. 36 C.F.R. § 800.2(e) (1998). Therefore,

to identify pursuant to Section 4(f) all places of historic

significance that will be used by a project, the agency must

have satisfied the Section 106 identification requirement.

See Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368,

372 (D.C.Cir.1999). As Judge Hogan recently stated,

because “Section 4(f) duties with respect to historic sites

are tied to a review of historic resources under Section 106

of the NHPA, it follows that an agency must complete its

Section 106 determinations before it can begin compliance

with Section 4(f).” Corridor H, 982 F.Supp. at 32.

48a

Likewise, it follows that an agency cannot reasonably be

expected to do “all possible planning” to minimize harm to

protected properties as required by DOTA Section 4(f)

without first having completed a detailed and

comprehensive list of protected historic resources

potentially affected by the project.

Plaintiff-intervenors contend that FHWA violated

both Section 106 of the NHPA and Section 4(f) of the

DOTA. First, Plaintiff-intervenors claim that the FHWA

did not take sufficient steps to identify historic resources

which would be used by the project under Section 106.

Second, Plaintiff- intervenors maintain that the FHWA did

not do “all possible planning” to minimize harm as

statutorily required by Section 4(f) of the DOTA.

In support of their argument that the FHWA did not

conduct a sufficient NHPA and DOTA historic resource

identification process, plaintiff-intervenors point to

statements made in the MOA. The MOA, for example,

says that “the Project may have an effect on additional

properties [not identified in the MOA] that are eligible for

inclusion in the National Register, as the result of activities

related to implementation of the Project, including, but not

limited to construction staging, dredge disposal, wetland

mitigation, or other ancillary activities ...”. JA 002089.

Plaintiff-intervenors contend that the locations and effects

of such activities are reasonably forseeable, and therefore

could be designated prior to adoption of the approved

project in the ROD.; The MOA also envisions the

preparation of an Historic Resources Identification and

Evaluation Report (the “Report”), “identify[ing] and

evaluat[ing] the defining historical characteristics of the

Alexandria Historic District within the APE.” JA002090-

91. The plaintiff-intervenors point out that the MOA is

largely promissory in nature, providing little in the way of

49a

me Oe et ree eo

concrete identification of protected resources and

mitigation plans. By not identifying all protected

resources prior to approval, plaintiff- intervenors state that

the FHWA violated the DOTA and the NHPAJ.]

Defendants explain that since the project design has

not been completed as to certain activities, no

identification need be done at this point. The Defendants

in essence propose putting off decision on the location and

extent of construction staging and dredge disposal, as well

as certain undefined “ancillary activities.” This

necessarily puts off identification of protected resources

which might be affected by design of those elements. See

MOA at JA002089. The FHWA argues that such activities

may be legitimately dealt with by execution of the MOA.

The FHWA further claims that the Report does not

represent an effort to attenuate the Section 106

identification process, but to “continue the Section 106

consultation process” both as to identified properties and

those not yet identified. Def.[s’] Br. at 66.

The Section 4(f) process must be completed before

the ROD is issued. See 1999 WL 54795 at 6 [166 F.3d

368, 373] (citing the “explicit requirement” that “[the

FHWA] complete the section 4(f) process before [it] issues

the ROD”). Here, the identification process was not

completed prior to issuance of the ROD. Identification of

historic properties possibly affected by dredge disposal

sites and construction staging is expressly postponed. An

“Historic Resources Identification and Evaluation Report”

is exactly what the NHPA and DOTA call for; namely,

identification of historic sites and evaluation of the adverse

impacts on them. Such a report must be prepared as part

of the Section 106 process prior to the issuance of the

ROD.

That the ROD approves a project design postponing

full compliance with the NHPA and the DOTA is not

adequate. An agency is not allowed to approve a less-

than-fully designed project in the ROD merely to avoid

having to complete its 4(f) and 106 analyses. Such a

holding would vitiate the purposes behind Sections 4(f)

and 106. Where aspects of the project can be feasibly

determined prior to the ROD, those aspects should be

factored into the Section 4(f) and 106 analyses. Here, the

MOA merely reflects agreement by the signatory parties to

postpone identifying “properties” and mitigation

procedures.

Because this Court concludes that the FHWA has

failed to complete the required identification of protected

affected properties under Section 4(f) of the DOTA and

Section 106 of the NHPA, it need not address the Plaintiff-

intervenors’ argument that the FHWA failed to do “all

possible planning” as required by the DOTA Section 4(f).

This will have to be done in the agency’s reconsideration

of its project.

As Defendants have not complied with their

obligations under the CAA, NEPA, NHPA and the DOTA,

this Court has no choice but to hold that the agency abused

its discretion in issuing its ROD in 1997 and remand this

matter for further agency action. Accordingly,

construction on the new bridge can not commence until the

agency has fulfilled its responsibilities under these statutes.

The court is reluctant to order this action. These

statutes have as their purpose the protection of various

aspects of the public interest. Despite their intended

purpose, they often cause regulatory gridlock which results

in necessary projects being interminably delayed. It is

clear an expanded bridge crossing linking the North and

South at the Nation’s Capital is sorely needed. While a

5la

return to the simpler days of the past might better satisfy

the concerns of the public interest statutes involved here,

progress must nevertheless occur. Simply put, an

expanded bridge over the Potomac River is necessary if

this Nation’s Capital and its surrounding neighborhoods

are not going to suffer paralysis.

The City of Alexandria along with the other

municipal areas that would be affected by the proposed

construction have now all signed off on the project.’

'* Recently, the City of Alexandria, an original plaintiff in this

litigation, entered into a settlement with the Defendants. The

agreement calls for:

1. Construction of direct access to Eisenhower Avenue from

495.

2. Study of the impact of eliminating a Church Street exit ramp

from the project, and the implementation of design measures

to mitigate adverse impact on residential areas in the event

the exit ramp is not eliminated.

3. A commitment to harmonize the construction of an “urban

deck” with the redevelopment of Jones Point Park and

portions of the George Washington Parkway south.

4. A maximum width of the project in specific areas and the

absence of permanent physical structures in others.

5. The retention of certain project features that provide access to

connecting high-ways and interchanges, such as Route | and

1-195.

6. A study of the feasibility of a new river crossing south of the

Woodrow Wilson Bridge.

This appears to be a positive step in bringing this important

and worthwhile project to fruition. It would be hoped that at some

point the other plaintiffs would show similar flexibility in

resolving the particular issues of concern to them. Sometimes

citizens groups with well intended objectives get so caught up in

their own zeal that they lose sight of overall societal needs and the

public interest as a whole suffers. Without an appropriate and

(...continued) ‘

52a

While administrative reconsideration of the project is all

that this Court can order, the Project to be put on a real

time basis might require direct intervention -by the

Congress, which after balancing all the public interest

aspects could “by pass” the regulatory gridlock that has

developed.’

An appropriate order granting Plaintiff-intervenors’

motion for summary judgment and denying that of the

Defendants accompanies this Memorandum Opinion.

April 13, 1999 /s/ Stanley Sporkin

Stanley Sporkin

United States District Court

measured balance of all of society’s needs, the requirements of a

nation to tend to the needs of all of its citizens cannot be achieved. —

'* This court is somewhat puzzled by the proposed design of the

new bridge which calls for it to ody a “draw bridge.” It is estimated

that the bridge would be required to be opened some 200 times a

year. With a projected use by some 300,000 vehicles a day, traffic

bottlenecks caused by opening and closing the bridge could well

be intolerable. As this nation is about to enter the 21st Century, it

seems incongruous to be adopting a technology that would be

better understood by our grandparents of a century ago. Certainly

at this late date, a suspension bridge design would not require any

new engineering feat and would seem to meet the needs to

be served by the new Potomac River crossing. Since the project

needs to be “rethought” it is hoped that this issue would be

included in the “rethinking” process.

53a

APPENDIX E

National Environmental Policy Act, 42 U.S.C. §

4332(2):

The Congress authorizes and directs that, to the fullest

extent possible: (1) the policies, regulations, and public

laws of the United States shall be interpreted and

administered in accordance with the policies set forth in

this chapter, and (2) all agencies of the Federal

Government shall—

* * *

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 should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and

enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of

resources which would be involved in the proposed

action should it be implemented.

Prior to making any detailed statement, the responsible

Federal official shall consult with and obtain the

comments of any Federal agency which has jurisdiction

by law or special expertise with respect to any

environmental impact involved. Copies of such

54a

stater -ent and the comments and views of the appropriate

Federal, State, and local agencies, which are authorized

to develop and enforce environmental standards, shall be

made available to the President, the Council on

Environmental Quality and to the public as provided by

section 552 of Title 5, and shall accompany the proposal

through the existing agency review processes ....

Council on Environmental Quality regulations, 40

C.F.R. § 1502.14 (“Alternatives including the proposed

action”):

This section is the heart of the environmental impact

statement. Based on the information and analysis

presented in the sections on the Affected Environment (§

1502.15) and the Environmental Consequences (§

1502.16), it should present the environmental impacts of

the proposal and the alternatives in comparative form, thus

sharply defining the issues and providing a clear basis for

choice among options by the decisionmaker and the

public. In this section agencies shall:

(a) Rigorously 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.

(b) Devote substantial treatment to each alternative

considered in detail including the proposed action so that

reviewers may evaluate their comparative merits.

jurisdiction of the lead agency.

(d) Include the alternative of no action.-

(e) Identify the agency’s preferred alternative or

alternatives, if one or more exists, in the draft statement

55a

and identify such alternative in the final statement unless

another law prohibits the expression of such a

preference.

(f) Include appropriate mitigation measures not already

included in the proposed action or alternatives.

56a

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.