ELR Citation: ELR 21288
No(s). 94-1114 (W.D. Pa. Apr 3, 1995)

The court holds that the Federal Highway Administration (FHwA) and other federal and state agencies did not violate the National Environmental Policy Act (NEPA) or the Intermodal Surface Transportation Efficiency Act (ISTEA) when they issued a final environmental impact statement (EIS) for a roadway segment through western Pennsylvania. The road will run from I-70 near Speers, Pennsylvania, to Route 51 near Large, Pennsylvania, and is part of a proposed highway from Morgantown, West Virginia, to Pittsburgh, Pennsylvania. Plaintiffs challenge the agencies' decision to divide the project north of I-70 into two segments—I-70 to Route 51 and Route 51 to Pittsburgh. The court first holds that a letter from the U.S. Environmental Protection Agency's (EPA's) acting regional administrator to a staff attorney for the Pennsylvania Environmental Council is properly part of the administrative record. The letter predates the FHwA's record of decision, which was the final agency action for the project; EPA was directly involved with the project as a cooperating agency on the EIS; and the Council commented on the project. The court, however, does not accept intervenors' exhibits as properly part of the administrative record.

Turning to plaintiffs' claim that the final EIS fails adequately to consider the environmental impacts of the project from Route 51 to Pittsburgh, the court holds that the actions the agencies have taken concerning the project do not constitute a "proposal" for federal agency action under NEPA §102(2)(C). Plaintiffs have provided no evidence that the project has been federally approved, there is no funding proposal pending before any agency, and there is no evidence of active preparation to make a decision on alternatives. Further, to study now the impact of a road from Route 51 to Pittsburgh runs an almost certain risk that the information will be outdated by the time decisionmakers might actually use it. Given NEPA's plain terms, the court rejects plaintiffs' interpretation of 40 C.F.R. §1508.7 to require that the future action need only be reasonably foreseeable. The court also rejects plaintiffs' argument that agencies should not be permitted to change a decision once made. Administrative Procedure Act rules of review and case law demonstrate that altering transportation projects in midstream is not, in itself, prohibited by NEPA.

The court next addresses plaintiffs' claim that the agencies wrongly divided the project into two segments and, thus, failed to consider the cumulative impact of the Route 51 to Pittsburgh road in the final EIS. The court rejects plaintiffs' assertion that Pittsburgh, not a point on Route 51, is the logical northern terminus for this project. Although an endpoint for the expressway in Pittsburgh is one logical choice, the court finds that this choice is validly confined to the agencies. And although the current northern terminus may add 7,400 vehicles per day to an already congested Route 51, the court cannot say that this factor strips the Route 51 terminus of all logic. The agencies have planned measures to reduce the added congestion.

The court next addresses plaintiffs' argument that if construction of the I-70 to Route 51 road is allowed to proceed, the southern terminus of the Route 51 to Pittsburgh project will be finally determined and, thus, road planners will be unable to avoid areas of high subsidence in constructing it. The court holds that this issue is appropriately committed to agency discretion, and the record shows that the agencies acknowledged this issue. Moreover, plaintiffs have cited no evidence that the risk of subsidence is insurmountable by known engineering solutions. Without such information, the court is ill-equipped to question the agencies' implicit conclusion that subsidence risks can be mitigated. The court holds that the claim that a sportsmen's club's "unique property" will be affected is likely moot, because plaintiff club has indicated its intention to withdraw from the suit. Nonetheless, there is no evidence that the club's property is significantly more important than other private property that will be affected by the road such that NEPA requires additional study of alternatives around it.

The court next addresses plaintiffs' claims that Council on Environmental Quality regulations also compel consideration of the Route 51 to Pittsburgh project in the EIS because the two roads are either connected actions, cumulative actions, or similar actions, as defined by the regulations. Plaintiffs cite no supporting case authority. Case law applying the "connected action" test, which assesses a project's independent utility, demonstrate that the I-70 to Route 51 road has independent utility by meeting the needs identified by the agencies, and does not depend on a larger action for its justification. By achieving certain stated goals, it will contribute to economic redevelopment of the area. The court holds that the agencies were not required to consider cumulative impacts, because plans for the Route 51 to Pittsburgh project do not meet the regulations' definition of "proposed actions" and the agencies do not know what form the project will take. Also, the presence of some disagreement among the agencies on the need to study cumulative impacts does not negate the validity of the final EIS. The court holds that plaintiffs' argument that the two roads are similar actions also lacks merit. The court next rejects plaintiffs' argument that the agencies failed to consider fully an alternative to the road ultimately chosen—a project upgrading Route 51 South. The court finds that given the agencies' choice of transportation goals, the Route 51 South upgrade was not a reasonable alternative that NEPA required the agencies to consider. The record contains direct information that the alternative would not advance the agencies' transportation goals or that the agencies improperly dismissed the alternative.

Turning to plaintiffs' claims under the ISTEA, the court holds that the public participation requirements of 23 C.F.R. §450.316, which concerns the metropolitan transportation planning process, are not mandatory for the congestion management system study (CMS) required under ISTEA §134(i)(1). The court upholds as reasonable the FHwA's interpretation of the interim regulations as not including specific requirements for public involvement regarding the CMS. The court also holds that 23 C.F.R. §450.318 did not compel the FHwA to require a major investment study (MIS) for the project, and that the agencies' decision to include a section on MIS compliance in the final EIS instead was reasonable. Regarding the validity of the CMS evaluation, the court holds that the agencies' actions were not arbitrary, capricious, an abuse of discretion, or contrary to law.

Counsel for Plaintiffs
Anthony P. Picadio
Picadio, McCall, Kane & Norton
USX Tower
600 Grant St., 46th Fl., Pittsburgh PA 15219
(412) 288-4000

Counsel for Defendants
Charles B. Gibbons
Klett, Lieber, Rooney & Schorling
One Oxford Ctr., 40th Fl., Pittsburgh PA 15219
(412) 392-2000