NEPA

Screening of Alternatives. The plaintiffs challenged FHWA’s adoption of the Corps’ EIS, arguing that the FHWA’s reliance on the Corps’ EIS was invalid because the screening analysis in the Corps’ EIS did not provide a reason for rejecting a “conceptual 42nd Street alignment that was similar to the plaintiffs’ proposed 42C alternative” (referred to here as the “42C-like alternative”). The Corps stated that it had considered the 42C-like alternative as part of its screening process, and had rejected it in favor of other 42nd Street alternatives that provided less curvature and were safer – but the Corps also acknowledged that its EIS did not specifically address this alternative. Even though it was not specifically discussed, the court held that the Corps’ analysis in its EIS provided a sufficient basis for eliminating the 42C-like alternative. Therefore, the court upheld FHWA’s adoption of the Corps’ EIS.

Supplemental EIS. The plaintiffs also argued that FHWA should have prepared a supplemental EIS to analyze the 42C alternative, an alternative that the plaintiffs first proposed after the Corps’ EIS was completed. Alternative 42C was a lower-cost version of 42C, which had been considered and rejected in the EIS. The plaintiffs argued that an SEIS was required because 42C had a much lower cost than 42A. FHWA conducted an analysis, which found that the cost savings (as compared to 42A) would be much less than claimed by the plaintiffs – about $5 million, not $10 to 20 million. The court upheld FHWA’s decision not to prepare an SEIS, because it found that FHWA had thoroughly considered 42C and had provided a reasonable explanation for its conclusion that 42C was similar to other routes that were studied and eliminated. The court cited the principle, from another case, that an SEIS is unnecessary when a new alternative is “qualitatively within the spectrum of alternatives that were discussed in the draft” and is only minor variation from those alternatives.

Noise Study. The plaintiffs contended that FHWA’s noise analysis was inadequate, under NEPA, because the analysis did not include the noise levels in the existing year, as required by FHWA’s traffic noise analysis methodology in 23 CFR Part 772. The court found that the noise analysis did not include noise levels in the existing year, and found that this omission was a violation of 23 CFR Part 772, but concluded that this omission was not “prejudicial error” and therefore did not provide a basis for overturning FHWA’s ROD.

Section 4(f)

Prudence Determination. In its Section 4(f) evaluation, FHWZA analyzed two build alternatives: 42A, which was rejected as imprudent, and 32B, which was approved. FHWA had determined 42A to be imprudent based upon a combination of the factors listed in FHWA’s Section 4(f) regulations, including higher cost, lower ability to meet purpose and need, and greater impact to certain environmental resources, among other factors. The plaintiffs argued that, even when considered together, these factors did not rise to the level of impacts of “extraordinary magnitude” and therefore did not provide a basis for rejecting 42A as imprudent. The court reviewed each of the factors considered by FHWA, and concluded that FHWA’s analysis and assumptions were reasonable.

“Although the FHWA predicts that the 32B Alternative will reduce traffic accidents by only 12 more than the 42A Alternative, enhancing safety-even if only slightly-is a relevant factor in determining whether the 42A Alternative is prudent.”
”Although the availability of a shorter, more direct route is not alone sufficient to overcome the paramount importance of protecting Section 4(f) property, it may, with other factors, render the avoidance alternative imprudent.”
“Without support, the FHWA states that all mitigation costs are accounted for in the $22.1 million [the cost estimate for Alternative32B, the selected alternative]. This claim, however, is incorrect. According to the FHWA’s own numbers, the $22.1 million understates the 32B mitigation costs by nearly $200,000. Further, the FHWA’s own [cost] numbers do not include several big ticket items – 317 acres of new wetlands, moving 31st Street, building the Wetland and Cultural Center and constructing hiking and biking trails and parking. The FHWA cost estimate is therefore clearly erroneous and may not be properly considered in determining that the 42A Alternative is imprudent.”
“The Court is indeed skeptical [of FHWA’s finding, which was contradicted by DOI], but it is in no position to choose between the conflicting opinions of the FHWA and DOI regarding floodplain and floodway impacts…. Notwithstanding the DOI’s disagreement, the FHWA’s conclusion that the 42A Alternative would have a greater impact on the Wakarusa floodplain and floodway is not arbitrary, capricious or clearly erroneous. The FHWA properly considered its conclusion in rejecting the 42A Alternative as imprudent.”
”Under the 32B Alternative, a four-lane highway with 12-foot noise walls would bisect the Haskell Farm and Baker Wetlands [Section 4(f) resources]. It would directly impact the Haskell Farm, but the FHWA concluded that it would nonetheless have fewer cumulative secondary impacts than 42A…. Furthermore, because the 32B Alternative mitigation package expands the Baker Wetlands surrounding the Haskell Farm, no development would be allowed on or around farm property. The FHWA reached its conclusions regarding the cumulative and secondary impacts on the Haskell Farm through reasoned-not arbitrary or capricious-analysis.”
“The FHWA determined that the 32B Alternative mitigation plan would provide a net benefit to the Haskell Farm and Baker Wetlands which the 42A Alternative does not provide…. Plaintiffs do not dispute the benefits of the 32B Alternative mitigation plan, but take issue with the FHWA’s conclusion that the benefits provided by the mitigation plan outweigh the impact of a four-lane highway severing the Haskell Farm from the Baker Wetlands. The FHWA, however, weighed plaintiffs’ concerns, and after taking a ‘hard look,’ it concluded that the 32B Alternative mitigation plan would yield a net benefit to the Haskell Farm and Baker Wetlands. The Court is in no position to second-guess the FHWA’s expert weighing of the technical considerations involved.”
“Even though the FHWA’s cost estimate was clearly erroneous, and it admitted inadvertently omitting 38,000 cars from its traffic increase projections, the Court may reverse and remand only if there is a significant chance that but for these errors, the FHWA might have reached a different result.”
“On this record, the Court concludes that the FHWA acted within the scope of its authority and could have reasonably believed that the 42A Alternative involved unique problems of extraordinary magnitude that rendered it imprudent…. Although no single factor would justify the FHWA’s rejection of the 42A Alternative, the cumulative weight of the factors is enough to support the FHWA decision.”
“Whether Section 4(f) requires the FHWA to perform a noise increase impact study that complies with 23 C.F.R. § 772 is unclear. Even if it does, the FHWA’s failure to comply with the noise study regulations did not prejudice plaintiffs and is not grounds for reversal.”