ELR Citation: ELR 21205
No(s). 98-7462 (3d Cir. May 14, 1999)

The court holds that federal and state transportation agencies complied with the Department of Transportation Act (DOTA) and the National Environmental Policy Act (NEPA) in selecting an underpass alternative for a bridge replacement project. The selected alternative would send traffic through a town's historic district. The court first holds that the agencies gave proper deference to the Advisory Council of Historic Preservation (ACHP). The administrative record demonstrates that the agencies considered the comments of the ACHP, and to some degree integrated those comments into the decisionmaking process both substantively and procedurally as required by National Historic Preservation Act §106.

The court next holds that the agencies did not act arbitrarily and capriciously under DOTA §4(f)(2). As revealed by the administrative record, the agencies considered the noise, air quality, vibration, traffic, and visual impacts that the selected alternative would have on the historic district. The agencies also affirmatively stated why the selected alternative will inflict less harm on the historic district than other alternatives.

The court then holds that the agencies did not violate the DOTA by failing to consider in greater detail an alternative that would require building an additional bridge to siphon off traffic that passes through the historic district. It was not arbitrary to rejectthis bypass alternative in view of the low predicted use rate, the impact of the added construction, and the enormously increased costs, all of which, taken together, make the alternative imprudent. Last, the court holds that the agencies adequately considered the bypass alternative under NEPA before rejecting it as infeasible.

Counsel for Appellants
Andrea C. Ferster
Law Offices of Andrea C. Ferster
1100 17th St. NW, 10th Fl., Washington DC 20036
(202) 974-5142

Counsel for Appellees
Dulce Donovan, Ass't U.S. Attorney
U.S. Attorney's Office
1162 Federal Bldg.
228 Walnut St., Ste. 217, Harrisburg PA 17108
(717) 782-4482

Before McKee and Lee,^* JJ.