Case Law Details
Preservation Pittsburgh v. Conturo
Project Description:
This case involved the proposed demolition of a Civic Arena, the former home of the Pittsburgh Penguins ice hockey team, and the redevelopment of the arena site. Historic preservation groups claimed that the redevelopment would likely involve federal funds for road reconstruction, and on that basis, claimed that FHWA was required to perform a NEPA analysis both for the demolition of the arena and for the redevelopment. FHWA determined that it had no role in the demolition or redevelopment planning, because no federal funding had been identified for the project; therefore, FHWA did not conduct any NEPA review.
2011 WL 4025731
2011 WL 4025731
U.S. District Court – Pennsylvania
09/09/2011
Civic Arena Redevelopment
Highway
Case Summary
The plaintiff filed a lawsuit against both FHWA and the local agency that owned the arena, seeking an injunction to compel FHWA to conduct a NEPA review, and to prevent the local agency from demolishing the arena until that NEPA review was completed. The District Court ruled against the plaintiff, dismissing the case for lack of jurisdiction based on the absence of any federal involvement. Note: This decision was appealed to the U.S. Court of Appeals for the Third Circuit. During the appeal, a request for an injunction was denied, and the Civic Arena was demolished. The Court of Appeals dismissed the case as moot on April 27, 2012.
Key Holdings
NEPA “Major Federal Action”. The plaintiff claimed that FHWA had violated NEPA by failing to prepare an EIS for the Civic Arena redevelopment project. They reasoned that redevelopment project would require federal funding in order to proceed, and that FHWA was the most likely source of that funding, so FHWA was required to prepare an EIS. The court rejected this reasoning: “There is simply no evidence in this record that federal action, let alone ‘major’ federal action, has occurred in this case. Plaintiff is unable to direct this Court to any fact that establishes federal agency participation in the redevelopment of the Civic Arena site. … The mere possibility of federal funding in the future is too tenuous to convert a local project into federal action.” Segmentation. The plaintiff also claimed that FHWA had improperly “segmented” the demolition of the Civic Arena (which did not involve federal funding) from the subsequent redevelopment of the arena site (which, the plaintiff asserted, would involve federal funding). The court rejected this argument as well, because “there is no underlying federal activity that can support a claim of unlawful segmentation.” NHPA Anticipatory Demolition. The plaintiff claimed that FHWA had a legal responsibility under Section 110(k) of the NHPA to prevent the local agency from carrying out an activity that would constitute “anticipatory demolition” – i.e., demolition of a historic property with the intent to avoid the need to engage in Section 106 consultation under the NHPA. The court held that FHWA’s duties under Section 110(k) came into effect only at the time FHWA received an application for funding or other approval. The court found that those circumstances did not exist: “SEA has not submitted any such application to the FHWA for federal assistance. Therefore, the FHWA had no legal duty under Section 110(k) to take action of any kind. Without a statutory duty requiring federal action, there is no ‘failure to act’ sufficient to invoke ‘final agency action’ review under the APA.” Accordingly, the court determined that the plaintiff had no basis for bringing a claim under the NHPA, and dismissed the plaintiff’s NHPA claims.
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