Litigation Procedure

Extra-Record Evidence

To support their arguments, the plaintiffs relied on a declaration from a landscape historian about the effects of the project on Jackson Park. The court declined to consider this declaration because it was not in the administrative record and was not before the agencies at the time they prepared the EA and made their decisions.

NEPA

Impact Analysis

The plaintiffs claimed the EA did not adequately analyze impacts on trees, migratory birds, and air quality. The court rejected this claim. The court noted that the EA included a lengthy technical memorandum that identified the species, size, and health of each of the nearly 800 mature trees that would be removed. The EA also included detailed mitigation strategies, which included replacing all trees that would be removed and banning tree removal during migratory bird breeding season. The court also noted that the EA included a detailed air quality analysis. The court held that the EA adequately analyzed the impacts of tree removal and mitigation for those effects.

Failure to Prepare EIS

The Council on Environmental Quality’s NEPA regulations define significance as based on a project’s context and ten factors of intensity. The plaintiffs argued that the agencies should have prepared an EIS, asserting that several intensity factors were present. The court found that the EA addressed each factor sufficiently to support the agencies’ finding that the project would have no significant environmental impact.

• Unique Characteristics. The plaintiffs argued that the agencies should have prepared an EIS because of the unique characteristics of Jackson Park. The court held that the EA adequately considered unique characteristics of the park with detailed discussions of impacts on Lake Michigan and other water features, archaeological resources, wildlife, and air quality, along with mitigation for those impacts.
• The plaintiffs claimed that the agencies should have prepared an EIS because the project’s environmental effects—the size of the presidential center buildings in relation to park features and the project’s impacts on traffic, trees, and historic properties—were highly controversial. The court held that the plaintiffs did not demonstrate substantial controversy because even if there were expert disagreement about certain environmental effects, the EA adequately addressed the plaintiffs’ concerns about those effects.
• Effects on Historic Sites. The court held that the EA adequately addressed impacts on three historic resources listed on the National Register of Historic Places. The court concluded that the agencies reasonably determined there would be no significant impact on those resources.
• Cumulative Effects. The plaintiffs argued that the EA ignored the project’s cumulative effects. The court held otherwise, finding that the EA adequately addressed all the cumulative impacts raised by the plaintiffs: The EA discussed the combined effects of construction of the presidential center and changes to the roadway system in Jackson Park, as well as impacts on the Great Lakes Fishery and Ecosystem Restoration project. The court also held that it was reasonable for the cumulative impact analysis in the EA to exclude the effects of rehabilitating nearby golf courses in Jackson Park because the EA explained that final plans and designs for the golf courses had not yet been approved. The court explained that NEPA does not require analysis of cumulative projects that cannot be meaningfully discussed.

Range of Alternatives

The plaintiffs argued that the agencies should have considered alternative sites for the presidential center. The court rejected this claim because the decision to locate the presidential center in Jackson Park was made by the city and the Obama Foundation, with no involvement or review by federal agencies. “Because the agencies have no authority to choose an alternative site to Jackson Park, or to force the City to build the OPC in Washington Park, they acted neither arbitrarily nor capriciously by confining their review of ‘reasonable alternatives’ to those involving Jackson Park.”

Section 4(f)

Prudent and Feasible Avoidance Alternatives

The court rejected the plaintiffs’ argument that FHWA should have considered different sites for the presidential center in its analysis of prudent and feasible avoidance alternatives. The court explained that the avoidance alternatives were appropriately limited to alternatives to the proposed federally funded transportation improvements in Jackson Park, rather than alternative locations for the presidential center, which was not subject to federal control. “Neither the OPC’s construction nor its operation requires federal funding or approval, and the OPC itself is not a transportation project. Because Section 4(f) applies only to transportation projects requiring federal approval, the FHWA had no jurisdiction over the City’s decision to situate the OPC within Jackson Park and no authority to evaluate alternatives to the site itself; neither the FHWA nor this Court can compel the City to force the OPC to build its compound in Washington Park instead of Jackson Park.”

The court also upheld FHWA’s determination that two avoidance alternatives—the no-action alternative and congestion management process strategies—were not prudent. The Section 4(f) Evaluation explained that the no-action alternative (building the presidential center in Jackson Park without transportation improvements) was not prudent because it would not provide sufficient pedestrian and bicycle accommodations to improve access and circulation to Jackson Park. The Section 4(f) Evaluation also explained that congestion management process strategies would have limited effectiveness in improving traffic operations. The court held that FHWA provided reasonable explanations for rejecting these two alternatives as imprudent.

Least Overall Harm

The court held that FHWA reasonably determined that the selected alternative caused the least overall harm. The court explained that FHWA’s Section 4(f) Evaluation considered nine alternatives and reasonably determined that only the selected alternative fully met the project purposes of accommodating changes in travel patterns due to the roadway closures and improving pedestrian and bicycle access and circulation.

National Historic Preservation Act

The court rejected the plaintiffs’ claim that the agencies violated Section 106 of the NHPA by failing to address the adverse effects of the presidential center on historic resources. The court noted that the Assessment of Effects report analyzed the effects of the center’s construction on historic properties, including the destruction of roadways and the removal and replacement of certain parts of the historical landscape in Jackson Park. The court also held that Section 106 did not require analysis of alternative sites for the presidential center, both because the presidential center itself was not subject to federal review or approval and because Section 106 requires considering only “changes in the existing proposal that could make it more compatible with its surrounding environment.”

The court also rejected the plaintiffs’ claim that the city had engaged in anticipatory demolition in violation of Section 110(k) of the NHPA, which prohibits federal agencies from approving a permit or funding for a project when the applicant intentionally significantly adversely affects a historic property with the intent to avoid the requirements of Section 106. The plaintiffs argued that the city had intentionally removed trees to accommodate the presidential center, constituting an anticipatory demolition in violation of Section 110(k). The court found that the record did not demonstrate that the city had intended to avoid the requirements of Section 106. The city had removed the trees to build a new track and field outside the area of the presidential center, and NPS had indicated that the track and field were not subject to federal review. When questions were raised about the city’s construction of the track and field, the city agreed to halt construction until the completion of Section 106 review for the project. “This record supports the conclusion that the City engaged in this early construction not with the intent to avoid Section 106 review, but because it genuinely believed the construction did not implicate federal review. . . . Therefore, this Court cannot say that FHWA acted arbitrarily or capriciously in accepting the City’s reasonable explanation of its actions and subsequently concluding that the City did not engage in an anticipatory demolition.”

Rivers and Harbors Act and Clean Water Act

The plaintiffs asserted that the Corps should have considered alternative locations for the presidential center that would have avoided the need for permits under Section 404 of the Clean Water Act and Section 14 of the Rivers and Harbors Act. The court rejected this argument because the Corps had no control over the city’s decision to locate the presidential center in Jackson Park and had no authority to compel the city to pick a different site.

The plaintiffs also claimed that the Corps should not have issued the Section 14 permit because the Great Lakes Fishery and Ecosystem Restoration project could not be altered. The court held that the Corps adequately explained why the project would not adversely impact the usefulness of the ecosystem restoration project—and actually would improve it—because mitigation included planting native plants and restoring a nearby historic path and lagoon.

Urban Park and Recreation Recovery Act

The plaintiffs challenged NPS’s approval of the conversion of property in Jackson Park to non-recreational use for the presidential center. The Urban Park and Recreation Recovery Act provides federal funds for renovation and rehabilitation of urban parks and recreation facilities, subject to a condition that the sites be maintained for public recreation use. NPS can approve the conversion of such property to non-public recreation use only if certain conditions are met, which include evaluating all practical alternatives to the conversion and providing recreation properties and opportunities of reasonably equivalent usefulness and location. The court held that NPS was required to consider only practical alternatives to the conversion of parkland for the presidential center, not alternative locations for replacement recreation sites. The court upheld NPS’s determination that there was no practical alternative to the conversion given that an objective for the presidential center was to be located in a community where President Obama lived and worked. The court also upheld NPS’s determination that the selected replacement site would provide reasonably equivalent recreation opportunities because it was located across the street from the converted parkland, was well suited for diverse forms of recreation, and was designed by the same landscape architect as Jackson Park.