Amicus Curiae Brief — Alexandria Historical Restoration & Preservation Commission v. Federal Highway Administration

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No. 99-1947

In The

Supreme Court of the United States

ALEXANDRIA HISTORICAL RESTORATION AND

PRESERVATION COMMISSION, ET AL.,

Petitioners,

FEDERAL HIGHWAY ADMINISTRATION, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeal

For The District Of Columbia Circuit

BRIEF AMICUS CURIAE OF THE COMMONWEALTH

OF VIRGINIA IN OPPOSITION TO THE PETITION

Mark L. Eartey

Attorney General of Virginia

WriiuraM H. Hurp*

Solicitor General

JuprrH WituiaMs JAGDMANN

Deputy Attorney General

RicHARD L. WALTON, Jr.

Senior Assistant Attorney General

SUZANNE T. ELLISON

ANTHONY P. MEREDITH

VaceriE L. Myers

Assistant Attorneys General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436

“Counsel of Record

Z\pe

TABLE OF CONTENTS

Page

INTERESTS OF AMICUS CURIAE................. 1

REASONS FOR DENYING THE WRIT............. 2

IE ss nso viva nasi ccavinenccsdaseetartuscdeas acs 2

I. THE PETITION IS BASED ON A THEORY CON-

TRARY TO THE LAW AND UNSUPPORTED BY

SE ES a RA RAT Bs RS EASASSERER SADR EOE 3

A. Congress Has Mandated a Twelve-Lane

SOME ha SU caculs Seek eR Oe eis eadasaKeN aia: 3

B. A Ten-Lane Bridge is Both Inferior and Inad-

CEPT RTT? TET rere Teer er ee sie 4

eR Ter Tee 4

RE OTe eee COLTER TCL ETT EE 5

2. - SPORES Levels Bh BORD . on wea cvscscicowees 6

4. Environmental Impact.................. 9

II. THE DECISION BELOW DOES NOT CREATE A

gti oe Be ffs ee errr rere 11

A. The Decision Below Is Consistent With The

I ec eae ek ies 12

B. The Decision Below Is Consistent With The

I en a e cen ewe's 15

CAPER Snchas ware anneh £64504 Kean d Knanseesas 17

TABLE OF AUTHORITIES

Page

Cases

Citizens Against Burlington v. Busey, 938 F.2d 190

(OL). Co BORE). os ci Vinnie ekeeieaeeesett 14, 15

City of Alexandria v. Rodney Slater, 198 F.3d 862

Cia4,.. CA Ss s ss kknsaaeuenuevan hee caeeee passim

North Buckhead Civic Ass‘n v. Skinner, 903 F.2d 1533

(23Ge Cie, TONG. cei cecnsnss siete ii, 36, 16

Simmons v. United States Army Corps of Eng’rs, 120 ~

RSe 666 (Un Cie: BPR) s «sc ssvannseinaeneee 14, 32, 15

Van Abbema v. Fornell, 807 F.2d 633 (7th Cir.

SIBB) vo oss inn eke ch ewe anag tenes 11, 12, 14

FEDERAL STATUTES AND REGULATIONS

40 CER. § 1902.36 ...56553.81 eee eee 11

43 USC. § GOORIN) ni oie etxicke ce ee ee 11

National Environmental Policy Act of 1969 (42

U.S.C. § 4522 ot e006)... cscccvcscssGiceebaeenee 3

National Highway System Designation Act of

1995, Pub. L. No. 104-59 § 402, 109 Stat. 568

(1996) 20s ccc cstacddees cast seewew eee eeaeae eas 7

Transportation Equity Act for the 21st Century,

Pub. L. No. 150-107 § 1116(a)(2), 112 Stat. 107

(T99G) 2... sss cdwe ccseesdssd0eknk cena eae 3

emcee Se TO a A

INTERESTS OF AMICUS CURIAE,

THE COMMONWEALTH OF VIRGINIA

This case involves a dispute over the replacement of

the Woodrow Wilson Bridge across the Potomac River.

The bridge is a major crossing between Virginia and

Maryland and a vital link in the Interstate highway sys-

tem along the East Coast. Built forty years ago, the bridge

is steadily deteriorating beneath traffic that far exceeds

what it was designed to accommodate. Indeed, the bridge

is weakening so rapidly that, four years from now, it will

be structurally unsound. Everyone agrees that a new

bridge is needed. Replacement plans have been studied

and discussed for more than a decade. But there is still a

dispute: should the new bridge have twelve lanes, as the

Federal Highway Administration has decided? Or, should

it have only ten, as petitioners would prefer?

Virginia is keenly interested in making sure that the

bridge is replaced by a modern structure designed to

accommodate foreseeable increases in traffic. Moreover, it

is extremely important to Virginia for replacement to

occur in time to avoid the calamity of bridge closure, or

the expense and additional congestion of extensive repair.

These objectives can be achieved if construction of a new,

twelve-lane bridge can begin promptly. But, they will not

be achieved if only ten lanes are built, or if bridge plan-

ners are required to delay construction until yet another

round of studies can be completed. For these reasons, the

Commonwealth of Virginia is vitally affected by the out-

come of this case and urges the Court to deny the petition

for writ of certiorari.

- oe eee eer me

REASONS FOR DENYING THE WRIT

Summary

When this litigation began, the lead plaintiff was the

City of Alexandria and an array of issues were raised.

Now, the City has resolved its claims by settlement and,

for the plaintiffs who remain, only one issue is left -

whether their preference for a ten-lane bridge is entitled

to more study. It is an issue without merit.

The petition is based on two fundamental errors.

First, the petition is based on the theory that a ten-lane

bridge would be just as good as one with twelve lanes,

and that, consequently, more time should be spent study-

ing a ten-lane option. The theory is faulty. It is contrary to

the law and unsupported by the record. Congress has

mandated a twelve-lane bridge. Even without such a

mandate, it is clear from the record that a ten-lane bridge

is both inferior and inadequate. Such a structure could

not accommodate the increased volume of rush hour

traffic projected for 2020, only a few years after comple-

tion of construction.

Second, petitioners perceive a split in the circuits

where there is none. No circuit has required an agency to

_ study options that do not satisfy the objectives with |

which it has been tasked. No circuit would regard delib-

erate obsolescence as a reasonable option, especially for a

project that will cost well over a billion dollars and that,

if designed right, should last for decades. The petition

does not present an issue worthy of certiorari.

eS...”

I. THE PETITION IS BASED ON A THEORY CON-

TRARY TO THE LAW AND UNSUPPORTED BY

THE RECORD.

A. Congress Has Mandated A Twelve-Lane Bridge.

Congress has determined that the twelve-lane alter-

native selected by the Federal Highway Administration

(“the Administration”) shall be constructed. In 1998, Con-

gress amended the Woodrow Wilson Memorial Bridge

Authority Act of 1995. In so doing, it deleted earlier

language regarding determination of alternatives for this

project and explicitly defined the “project” to be “the

selected alternative described in the record of decision

executed by the Secretary [of Transportation] in compli-

ance with the National Environmental Policy Act of 1969

(42 U.S.C. § 4321 et seq.).” Transportation Equity Act for

the 21st Century, Pub. L. No. 105-178, § 1116(a)(2), 112

Stat. 107, 158 (1998). The alternative described by the

Secretary is the twelve-lane bridge. Thus, Congress has

now made the determination that the twelve lane alterna-

tive is the one to be constructed.

This congressional decision is also reflected in parts

of the same legislation providing for an agreement

between the federal government and the affected States:

“[The agreement shall] require that - the Project include

not more than 12 traffic lanes, including 8 general pur-

pose lanes, 2 merging/diverging lanes, and 2 high occu-

pancy vehicle, express bus, or rail lanes.” Id. at

§ 1116(c)(2)(C)(i), 112 Stat. at 159. Considered in isolation,

the reference to “not more than 12 traffic lanes” could be

read as leaving open the option of a smaller bridge; but,

by specifying exactly how many lanes of each type are to

be built, Congress foreclosed that option. Added together,

the various lanes total twelve. Congress has plainly man-

dated a bridge of twelve lanes, no more and no less. The

Court need go no further.

B. A Ten-Lane Bridge Is Both Inferior And Inade-

quate.

Even if Congress had not so acted, the petition would

still rest on a faulty theory. In pressing their case for a

ten-lane bridge, Petitioners make four claims. They say

that “a ten-lane crossing would [1] eliminate structural

concerns about the existing bridge, [2] sharply reduce the

safety problems, [3] remove the current bottleneck, and

substantially deal with projected traffic levels even

twenty years hence, while [4] having far fewer adverse

environmental effects.” Pet. at 12. All of these claims are

either wrong or irrelevant.

1. Structural Concerns. Any new bridge - if built in

time - would remedy the structural problems that plague

the existing bridge. But, that is not an argument in favor

of ten lanes any more than it would be an argument in

favor of six or eight lanes. Moreover, structural problems

with the existing bridge argue against granting the peti-

tion. This is so for at least two reasons. First, there is the

concern about timeliness. As petitioners apparently rec-

ognize, the existing bridge cannot last much longer with-

out major repairs that would further snarl traffic and cost

millions of dollars. While such repairs would be unavoid-

able, the money to pay for them would be largely wasted

since a new bridge — of whatever size - would presuma-

bly replace the old one just a few years after the repairs

were made. Such adverse consequences weigh heavily

against granting certiorari in this case.

Second, Virginia is concerned about structural prob-

lems arising in the new bridge if it is built too small.

Much of the structural inadequacy of the existing bridge

can be traced to the fact that the bridge has been forced to

carry far more traffic than it was designed to accommo-

date. Completed in 1961, the design capacity of the

bridge is 75,000 vehicles per day, a volume that was

surpassed in the early 1970’s and that is only a fraction of

today’s traffic count, 200,000 vehicles per day. As a result,

the bridge wore out far sooner than expected. Building a

new bridge that is inadequate to meet projected volumes

invites a repetition of this problem. Moreover, building

twelve lanes rather than ten will allow two lanes to be

dedicated to high occupancy vehicles (known in beltway

parlance as “HOV’s”) or mass transit, thereby encourag-

ing a reduction in the total number of vehicles crossing

the bridge.1 Fewer vehicles mean less structural stress

and consequently less damage. In short, structural con-

cerns argue for a twelve-lane bridge and against granting

certiorari.

2. Safety. The arguments about safety mirror those

about structural concerns. Any new bridge - if built in

time — would remedy the safety problems that plague the

existing bridge. But, that is not an argument in favor of

1 Federal Highway Administration, U.S. Dep’t of Transp.,

et al., Woodrow Wilson Bridge Improvement Study, Final

Environmental Impact Statement (“Final EIS”), § 4(f)

Evaluation. DC005053:2. References in this brief to “DC” and

“SA” refer to the administrative record.

ten lanes. Indeed, safety problems with the existing

bridge argue against granting the petition. First, the

longer a new bridge is delayed, the longer motorists will

be exposed to the traffic hazards of the overcrowded

bridge they now must use. Those hazards would increase

with the increased congestion that repairs to the existing

bridge would cause. Second, as the court of appeals rec-

ognized, a twelve-lane bridge would be safer than one

with only ten lanes. City of Alexandria v. Rodney Slater, 198

F.3d 862, 868 (D.C. Cir. 1999) (Pet. App. 9a-10a) (“accident

rates would also be markedly higher on a ten-lane struc-

ture”). This decision supports the Administration’s deci-

sion to eliminate a ten-lane option. As its study showed,

such a bridge would be “insufficient from a functional,

safety, and operational standpoint.” Final EIS, § 4(f) Eval-

uation; Vol. 1, p. 2-43 (emphasis added).?

3. Traffic Levels in 2020. Petitioners claim - incor-

rectly — that a ten-lane bridge would “substantially” deal

2 The accident rate on the existing bridge is 153.5 accidents

per million vehicle miles (“mvm”). DC003296:5-31. This is

double the rate of other area highways. DC005052.3-3 to 3-32. 1

Twelve lanes would reduce this rate to fewer than 100 accidents

per mvm, while the accident rate for ten lanes would be

between 125 to 150 per mvm. DC003296:5-31. Moreover, a !

twelve-lane bridge would allow the separation of local traffic

from express traffic in a way that ensures that no vehicle would

ever be more than one lane away from a shoulder. This increases

safety for motorists, DC005053:2-27, and improves response

time for emergency vehicles. DC003296:5-29. These benefits

would be lost with a ten-lane bridge, since separation of local

and express traffic would not be feasible.

——oEOEOE

with traffic in 2020.3 Repeating the error of the district

court, they fail to focus on the demands of rush hour. As

the court of appeals recognized, 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. But that study apparently

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 dur-

ing peak commuting hours it will take to cross the

bridge.

Alexandria, 198 F.3d at 868 (Pet. App. 11a) (emphasis

added).4

3 The relevance of the year 2020 arises, not only from the

fact that it is now just a few years away, but also from the fact

that Congress has made findings of fact about traffic problems

at the bridge, focusing on the year 2020:

“4

. the volume of traffic in the metropolitan

Washington, D.C., area is expected to increase by

more than 70 percent between 1990 and 2020 [and] the

deterioration of the Woodrow Wilson Memorial

Bridge and the growing population of the

metropolitan Washington, D.C., area contribute

significantly to traffic congestion .. . ”

National Highway System Designation Act Of 1995, Pub. L. No.

104-59, § 402, 109 Stat. 568, 627 (1995).

4 The Administration later refined its projected daily

traffic flow for 2020, reducing the number down to 295,000 from

an earlier figure that was somewhat higher.

Petitioners nonetheless cling to this inappropriate

focus on 295,000 cars, hoping to downplay the great

advantages that a twelve-lane bridge would have at rush

hour. Pet. at 13. These advantages are shown by the

following:

e With twelve lanes, rush hour would last a

few hours twice a day; with ten lanes, rush

hour in each direction could persist for up to

fourteen hours. DC005053:figs.3-5,

DC003296:figs. 4-7 and 4-8.

e With twelve lanes, the queues to enter the

Beltway from Route 1 would be backed up

for two lane miles; with ten lanes, the queues

at Route 1 during evening rush hour would

honeycomb through Old Town Alexandria

for thirty-five lane miles. S5A002869;

DC003718.

e With twelve lanes, express lanes would be

free flowing even during rush hour while the

back-up in the local lanes would be two to

three miles long. With ten lanes, there would

be no express lanes and the rush hour queue

would extend from three to six miles on the

average weekday and several miles longer

on days with accidents or breakdowns.

DC003718; DC003291; DC003296:5-32 and

4-25.

e With twelve lanes, the total daytime delay

would be 5,800 vehicle hours per day; with

ten lanes, the delay would range from 9,500

to 10,700 vehicle hours per day. DC003718;

DC003296:5-32.

e With twelve lanes, a vehicle in the express

lanes during rush hour could travel through

a five-mile corridor in only six minutes (an

average speed of about 50 m.p.h.). In the

local lanes, it would take 10 - 15 minutes

(averaging 20 to 30 m.p.h.). DC003718;

DC005053:4-16. By contrast, with ten lanes, it

would take all traffic over twenty minutes to

travel through that same five-mile corridor

(an average of only about 15 m.p.h.).

DC003718; DC003296:5-30; DC005053:4-143.

In sum, as the D.C. Circuit concluded, “[t]he Admin-

istration’s studies show that [Petitioner’s] 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 ...” Alexandria, 198 F.3d at

868 (Pet. App. lla). While these concerns would not

become acute until 2020, that day is not far away. Indeed,

it would be, at most, only sixteen years after the comple-

tion of new construction. To build a major bridge so

forseeably obsolete is poor stewardship of the public

trust and not a “reasonable alternative” to the twelve-

lane structure that petitioners seek to block.

4. Environmental Impact. Petitioners also claim

that a ten-lane bridge would have “far fewer adverse

environmental effects.” Pet. at 12. This is also incorrect. A

twelve-lane bridge would, of course, be larger than one

with ten lanes, but any additional impact from the struc-

ture’s size would be minimal. The footprint of a twelve-

lane structure would be only sixty feet wider.

DC005053:fig. 2-19. This would result in an aerial ease-

ment over Jones Point Park/Alexandria Historic District

of only 1.3 more acres, and taking only .3 more acres of

the future Queen Anne’s Park in Prince George’s County.

Similarly, twelve lanes would affect only 3.4 more acres of

wetlands and 7.9 more acres of floodplain than ten lanes.

There are an equal number of parks and historic sites that

would be affected, an equal number of business displace-

ments, equal air quality impacts, and equal hazardous

material site impacts. DC005053:4-146 to 149.

In sum, a twelve-lane bridge would be superior to a

ten-lane bridge in the areas of structural integrity, safety

enhancement, carrying capacity, and decreased rush hour

congestion, with differences in environmental impact

being minimal. Indeed, a ten-lane bridge would be not

only inferior, but inadequate. Given these facts, the the-

ory on which the petition is based - that a ten-lane bridge

would be just as good as one with twelve lanes - is faulty.

Indeed, the Administration has already looked at a ten-

lane option. The Final EIS discussed the environmental

‘savings of the ten-lane alternative over the twelve-lane

and showed that any savings were insubstantial and were

offset by the transportation and safety benefits of twelve

lanes. DC005053:2-47. No further study is required. As

the court of appeals observed,

[W]ere [the Federal Highway Administration] 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 alterna-

tive.”

Alexandria, 198 F.3d at 869 (Pet. App. 13a). The petition

should be denied.

II. THE DECISION BELOW DOES NOT CREATE A

SPLIT IN THE CIRCUITS.

Petitioners discern a split in the circuits where none

exists. They argue that the decision below represents a

departure from the approach taken by Seventh and Elev-

enth Circuits in similar cases. See Pet. at 8-13, discussing

Simmons v. United States Army Corps of Eng’rs, 120 F.3d 664

(7th Cir. 1997); Van Abbema v. Fornell, 807 F.2d 633 (7th

Cir. 1986); North Buckhead Civic Ass'n v. Skinner, 903 F.2d

1533 (11th Cir. 1990). In reality, the D.C. Circuit's

approach parallels the course taken by those other cir-

cuits. Although those circuits have not always ruled for

the federal agency, they have followed a similar pattern

of analysis. There is no split.

Under the National Environmental Policy Act

(“NEPA”), federal agencies must prepare an environmen-

tal impact statement for all “major federal actions

significantly affecting the quality of the human environ-

ment. ...” 42 U.S.C. § 4332(2)(C). This statement must

discuss “all reasonable alternatives” for pursuing a pro-

ject. 40 C.F.R. § 1502.14. When deciding whether a federal

agency has validly excluded a proposal from its discus-

sion of “all reasonable alternatives,” the circuits have

followed a two-step approach. First, they have deter-

mined whether the agency’s goals are reasonable. Then,

they have judged the reasonableness of proposed alterna-

tives by the goal of the project. This is the approach that

was taken by the Seventh and Eleventh Circuits when

dealing with the cases cited by petitioners. No split exists

because this is the same approach followed by the court

of appeals here.

A. The Decision Below Is Consistent With The

Seventh Circuit.

Contrary to petitioners’ assertions, the court of

appeals’ decision does not contravene the Seventh Cir-

cuit’s opinion in Simmons, or its opinion in Van Abbema. In

Simmons, the Seventh Circuit considered whether the |

Corps of Engineers had complied with NEPA when the

Corps prepared an environmental impact statement for a |

project to bring water to a city and a neighboring water |

district. The court concluded that the Corps had not |

complied with NEPA because the goal of the project was |

too narrowly defined. Simmons, 120 F.3d at 669. The

- Corps defined the objective in a way that actually dic-

tated the means or method for achieving the goal - it

stated that water must be obtained via a single source. Id.

The Seventh Circuit held that the defined objective was

unduly narrow because it precluded any alternative

methods for obtaining water. Id.

The court of appeals’ decision here does not conflict —\

with Simmons. The defined objective in this case differs

from the one considered in Simmons because the Admin-

istration’s objective does not explicitly or implicitly dic-

tate any means or method. The Administration seeks to

relieve the traffic congestion and attendant structural and

safety problems that plague the Woodrow Wilson Bridge,

and to accommodate the traffic volumes expected by the

year 2020. Unlike the Corps in Simmons, the Administra- \

tion did not start with any specified means for achieving

its goal. While the Administration eventually concluded

that twelve lanes were necessary to achieve its goal, it did

not start by defining twelve lanes as its goal. Instead, it

looked at a variety of bridge widths, as well as a bridge/

tunnel option, a double-deck bridge option, a tunnel only

option, etc. Final EIS § 4(f) evaluation, 2-10 — 2-17 (1997).

The ten-lane option was eliminated as an alternative

because it was not a reasonable option in view of the

general goals regarding traffic congestion, structural and

safety problems and projected needs in the year 2020.

Given the different approaches followed by the Corps in

Simmons and the Administration here, it is not surprising

that the circuits reached different conclusions about

whether there was compliance with NEPA. But this does

not indicate any split on an issue of law.

Moreover, there is no reason to believe that the Sev-

enth Circuit would have reached a result here different

from the one reached by the D.C. Circuit. The Simmons

court did not hold that the Corps had improperly defined

its objective because it sought to solve the water problem

in a complete manner, nor did it say that the Corps was

precluded from taking into account peak demand for

water. Yet, petitioners essentially contend that the

Administration’s objective is unacceptable because it

seeks to address the problem of congestion fully, and by

taking rush hour into account. Petitioners maintain that

the Administration should be content to accommodate

only a portion of the traffic that would cross a new bridge

in the foreseeable future. Only then, according to’ peti-

tioners, would the Administration’s objective be suffi-

ciently broad. The Seventh Circuit did not adopt such an

unreasonable approach in Simmons, and no split among

the circuits was created when the D.C. Circuit declined to

adopt it here.

The Seventh Circuit’s decision in Van Abbema sim-

ilarly provides the petitioners with no support. In Van

Abbema, the Seventh Circuit considered whether the

Corps of Engineers had followed NEPA when it issued a

permit to build and operate a coal-loading facility. The

court held that the Corps had not complied with NEPA

because, when it considered alternate sites, the Corps

relied on “a record replete with important factual incon-

sistencies and ambiguities that the Corps did not attempt

to resolve.” 807 F.2d at 642. No such adverse finding was

made by the D.C. Circuit here.

Petitioners cite the statement in Van Abbema that “the

evaluation of ‘alternatives’ mandated by NEPA is to be an

evaluation of alternative means to accomplish the general

goal of an action.” See Pet. at 9, quoting 807 F.2d at 638

- (emphasis in original decision). But, there is nothing to

suggest that the agency goals here - relieving traffic

congestion and attendant structural and safety problems,

and accommodating traffic volumes expected by 2020 -

would be too specific to satisfy the Seventh Circuit. Thus,

the D.C. Circuit’s decision does not conflict with Van

Abbema.

Finally, Petitioners argue that the D.C. Circuit created

a split with the Seventh Circuit in an earlier case, Citizens

Against Burlington v. Busey, 938 F.2d 190 (D.C. Cir. 1991).

They say that the D.C. Circuit “expressly disagree[d] with

the Seventh Circuit’s view in Van Abbema that the rea-

sonableness of alternatives should be judged by the ‘gen-

eral goal’ of the project.” Pet. at 13. In reality, the

discussion in Citizens about the “general goal” of a

planned project centered on the issue of who holds the

right to define the goal. The D.C. Circuit never disagreed

with judging the reasonableness of a proposed a.ternative

by the general goal of the project. In fact, the court

explicitly embraced this approach, stating that “[t]he

goals of an action delimit the universe of the action’s

reasonable alternatives,” Citizens, 938 F.2d at 195, and

that “[a] proposed alternative is reasonable only if it will

bring about the ends of the federal action. ... ” Id.

Moreover, it is the recent decision in the case at bar — not

the decade-old decision in Citizens - that is now before

this Court on a petition for writ of certiorari. That peti-

tion should be denied.

B. The Decision Below Is Consistent With The

Eleventh Circuit.

Petitioners’ reliance on the Eleventh Circuit’s deci-

sion in North Buckhead is similarly misguided. Petitioners

contend that the court of appeals contravened North Buck-

head when it concluded that the “partial” ten-lane pro-

posal is not a “reasonable alternative” worthy of in-depth

discussion in the Administration’s environmental impact

statement. Pet. at 10, citing 903 F.2d at 1542. In reality, the

D.C. Circuit’s conclusion is consistent with the North

Buckhead opinion. 3

In North Buckhead, the Eleventh Circuit stated that a

discussion of proposed partial solutions might sometimes

be appropriate. 903 F.2d at 1542. But, in that opinion, the

court also stated that the propriety of considering such

proposals depends on whether they constitute reasonable

alternatives. Id. The Eleventh Circuit went on to conclude

that a proposed “partial” plan of action did not constitute

a reasonable alternative because it would not accomplish

the objective underlying the highway project - “it would

provide little relief for the congestion in the existing

street network.” Id. Given this holding, there are at least

two reasons why there is no conflict between North Buck-

head and the case at bar. First, the Eleventh Circuit’s view

that a partial solution may sometimes be a reasonable

alternative was not essential to its holding in the case. As

such, it does not provide a credible basis for discerning a

conflict among the circuits.

Second, in the context of highway construction pro-

jects, the Eleventh Circuit and the D.C. Circuit agree that

a partial solution that does not relieve congestion is not a

reasonable alternative. The D.C. Circuit correctly recog-

nized that, with an expansion to only ten lanes, “conges-

tion . . . would result [and] it is simply a non sequitur to

call a proposal that does not offer a complete solution to

the problem a ‘reasonable alternative.’ ” Alexandria, 198

F.3d at 869 (Pet. App. 13a) (emphasis added, internal

quotation marks and footnote omitted). There is no split

among the circuits. if

Moreover, the D.C. Circuit — like the Seventh Circuit

- was right in its approach. Although ten lanes would

better accommodate the traffic that currently passes over

the bridge, the volume of traffic is going to increase. Ten

lanes cannot accommodate the increase that is expected

by the year 2020. It took slightly more than ten years for

traffic to exceed the capacity of the Woodrow Wilson

Bridge after construction was finished in 1961. If only ten

lanes are built now, the bridge would again be inadequate

to handle traffic demands shortly after completion. The

same congestion that plagues the bridge today would

plague it in 2020. The Administration would essentially

“iF

be back to square one.5 This Court should deny the

petition for writ of certiorari.

CONCLUSION

No one contests the need to replace the Woodrow

Wilson Bridge. All that is at issue is whether the new

bridge should have twelve lanes or ten. Try as they

might, petitioners cannot make this into a case worthy of

certiorari. The petition ignores the congressional mandate

for twelve lanes as well as the painful reality of rush

hour, a fact of life that all who drive in Northern Virginia

know all too well. Insensitive to highway congestion,

petitioners are nevertheless so alert to conflicts among

the circuits that they see one where none exists. There is

no reason to believe that any other circuit would reach a

different result than the legally sound and common sense

result reached here by the D.C. Circuit. There is no split

> While the negative impact on transportation would be

significant, the environmental benefits gained from limiting the

expansion to ten lanes would be minimal or non-existent. See

supra at 9.

in the circuits. The petition for certiorari should be

denied.

July 6, 2000.

Respectfully submitted,

COMMONWEALTH OF VIRGINIA

Mark L. EARLEY

Attorney General of Virginia

WriiuramM H. Hurp