ELR Citation: ELR 20967
No(s). 84-1180 (5th Cir. Aug 23, 1985)

The court holds that planners of the I-35W and I-30 highway expansions in Fort Worth violated the National Environmental Policy Act, the Department of Transportation (DOT) Act, and the Federal-Aid Highways Act (FAHA) when they transferred the "Overhead," a segment of the I-30 project, to the I-35W project without adequately assessing the segment's impacts or giving proper public notice. The court first addresses whether the highway planners improperly concluded that the amended project would not require an environmental impact statement (EIS). The court notes that the plaintiff has the burden of proving both that the project might have significant environmental effects and that the agency acted unreasonably in concluding otherwise. The reasonableness of the agecy's action must be apparent in the administrative record, as it existed when the decision was made. The court holds that the administrative record was inadequate to support the decision not to prepare an EIS because it contained nothing about the impacts of the Overhead. The court further holds, based on the judicial as well as administrative record and the judicial record developed by plaintiff, that the project may significantly affect some environmental factors and so requires an EIS. In light of these holdings, the court declines to rule on whether the planners improperly segmented the Overhead from the rest of I-30. The court next holds that the planners' DOT Act §4(f) report on impacts to historic places and parks was inadequate. The standard of review for a §4(f) determination is the same as that for a decision not to prepare an EIS; the agency must reasonably conclude that the project will not significantly "use" protected properties. The planners' determination ignored clear impacts on an adjacent park and was patently wrong in concluding that the effects on historic properties would be minimal. Finally, the court holds that the planners violated the notice and hearing requirements of FAHA by not giving notice of the Overhead expansion plans before the public hearing on the project. It is immaterial whether the failure involved bad faith. The court enjoins work on the Overhead until procedural flaws have been corrected but does not enjoin work on the remainder of the I-35W project.

Counsel for Appellants
David Bonderman
3100 First City Bank Tower, 201 Main St., Fort Worth TX 76102
(817) 335-9595

Counsel for Appellees
Jacques Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4037

Before REAVLEY, WILLIAMS, and DAVIS, Circuit Judges.