ELR Citation: ELR 20112
No(s). 84-3951 (E.D. Pa. Mar 15, 1985)

The court holds that the Federal Highway Administration (FHwA) complied with the Department of Transportation Act (DOTT) §4(f), the National Environmental Policy Act (NEPA), and Executive Order (E.O.) No. 11990, regarding wetlands, in approving the alignment of the Blue Route Highway in Pennsylvania. The court first upholds federal approval under DOTA §4(f). After outling the standard of its review, the court rules that the Secretary of Transportation may delegate her duties under §4(f), with some limits, within the Department. The court holds that the limited delegation of approval authority in the instant case to an FHwA Regional Director of Planning and Program Development was valid and the Director's actions were adequately supervised. Also, the court holds that the Director's §4(f) record of decision lawfully referred to §4(f) documentation in the project environmental impact statement (EIS) and that federal officials did not abdicate their duty to thoroughly and independently review the project.

Reviewing the substance of the §4(f) approval, the court holds that the record supports the Director's finding that there was no feasible and prudent alternative to the use of parkland or historic properties protected by §4(f) and that the proposal included all possible planning to minimize harm. The Director correctly construed his authority under DOTA and sought to determine whether any alternatives were feasible and prudent. The Director reasonably concluded that doing nothing would be imprudent because the cost in severe traffic congestion and harm to the local economy would be too high. For the related alternative of widening local roads, the Director did not need to precisely weigh the relative harm to §4(f) lands, as he reasonably concluded that widening would imprudently disrupt local communities while not solving the region's traffic programs. FHwA reasonably decided not to consider alternatives to the highway in "Travel Band A," an area far west of the proposed route, because they would not draw sufficient use to justify their cost and so implicitly would be imprudent. All parties agree that the "Total Avoidance Alternative," the best route FHwA could find that would avoid all §4(f) lands, is imprudent, and the court holds that FHwA used reasonable criteria and data to select its best avoidance route. These criteria validly included disruption of local land use patterns, even though local land use patterns reflect the 20-year-old plans to build the Blue Route Highway in the proposed alignment. The Director also properly considered and reasonably rejected as not feasible and prudent several localized shifts in the proposed alignment. The court upholds the Director's finding that the proposed route includes all possible measures to minimize harm to §4(f) sites, noting that the proposed route includes substantial mitigation measures. The mitigation plans sufficiently concrete, given that final design of the highway cannot proceed until after the corridor has been approved.

Turning to the plaintiffs' NEP claims, the court holds that FHwA's EIS on the project is adequate. After discussing the appropriate standard of review, the court holds that the EIS sufficiently discussed alternatives to the Blue Route corridor. The EIS described two variations of the no-build alternative and explained why neither was viable, obviating the need to present detailed environmental analyses of the options. The EIS did not need to analyze the impacts of routing the highway through Travel Band A, since it provided enough information demonstrating the Route's impracticality to permit the decisionmaker to make a reasoned choice. Though FHwA merely summarized and did not release with the EIS the central study of Travel Band A, there is no evidence that the public was denied access to the study or that the study was faulty. Also, the court holds that the EIS adequately discussed the selected alternative's impacts on noise, incidence of traffic accidents, stream water quality, and groundwater hydrology.

The court also holds that FHwA complied with E.O. No. 11990. The court notes an agency's duty to protect wetlands under the order is analogous to but not as strict as an agency's duty to protect §4(f) lands. The court rejects FHwA's argument that since the Blue Route EIS was completed before the the order was in force, the order does not apply. The EIS was supplemented after the order became effective, and although agency regulations are silent on the effect of a supplemental EIS, policy and circumstance suggest the order should apply to the project. The court then holds that the supplemental EIS contained an adequate wetlands finding complete with mitigation measures, that the Director possessed the validly delegated power to approve the finding, and that the approval was not arbitrary, capricious, an abuse of discretion, or otherwise unlawful.

[Decisions in previous "Blue Route" cases appear at 13 ELR 20349 & 20359.]

Counsel for Plaintiffs
Edward F. Mannins, Marguerite S. Walsh
Dilworth, Paxson, Kalish & Kauffman
2600 The Fidelity Bldg., Philadelphia PA 19109
(215) 875-7000

Counsel for Defendant
Alexander Ewing Jr., Susan D. Bricklin, Ass't U.S. Attorneys
3310 U.S. Cthse., 601 Market St., Independence Mall West, Philadelphia PA 19106
(215) 597-2556

Counsel for Intervenor-Defendants
E. Barclay Cale Jr., William H. Lewis Jr., Coleen M. Meehan
Morgan, Lewis & Bockius
2000 One Logan Square, Philadelphia PA 19103
(215) 963-5000