NEPA

Purpose and Need

The plaintiffs alleged that the project’s purpose and need statement was based on inaccurate data regarding the safety and design of the existing bridge. They also argued that the purpose and need was defined too narrowly to exclude an alternative of rehabilitating the existing bridge. The court noted that the agencies relied on various studies in crafting the purpose and need statement, including reports on the bridge’s structural condition, turning movement studies, and traffic counts. The agencies also solicited public comments on a draft purpose and need statement and made changes based on those comments. The court concluded that the purpose and need statement was not arbitrary or capricious. The court explained that the administrative record “demonstrates an apparently thoughtful and data-driven process” based on scientific evidence and public input. Further, the agencies’ decision was entitled to deference and “it is not the court’s role to re-weigh the facts and evidence that Defendants considered in developing the Project’s purpose and need statement.”

Predetermination

The plaintiffs raised two arguments that PennDOT’s decision to replace the bridge was predetermined before it completed the NEPA process.

First, the plaintiffs cited to PennDOT’s references to the project as a “bridge replacement project” in documents from 2005, before the bridge was determined to be a contributing element to the historic district. The court held that PennDOT’s “early references to the project as a ‘replacement’ do not demonstrate that FHWA, the federal agency, failed to act with good faith objectivity.” The court explained that NEPA did not apply to PennDOT because it is not a federal agency, and PennDOT’s statements occurred years before FHWA became involved in the project in 2013. In addition, the court noted that the Section 4(f) Evaluation and other documents in the administrative record included analyses of non-replacement alternatives.

Second, the plaintiffs claimed that replacing the bridge was predetermined because PennDOT entered into a contract in 2005 to replace the bridge (along with two other bridges in the county). PennDOT explained that the contract was necessary for completing the preliminary design and environmental studies for the NEPA process and for having a conservative assumption to program funding for the project. The court concluded that the contract was not improper predetermination because it “was not awarded to complete a specified course of action prior to the NEPA process. Indeed, even after the contract was awarded, PennDOT evaluated a multitude of alternatives. . . . The act of entering into a contract, in and of itself, does not violate NEPA, especially where, as PennDOT identifies, no final design or construction activities were completed and no rights-of-way were acquired for the Project before FHWA’s NEPA decision.” Furthermore, the court found that FHWA provided sufficient independent oversight to ensure an objective NEPA process: “FHWA reviewed PennDOT’s determinations, comments from consulting parties were sought throughout the entire Project development process, alternatives were considered, and supplemental analyses were ordered when needed.”

Eligibility for Documented Categorical Exclusion

The court rejected the plaintiffs’ argument that the project did not qualify for a CE because it involved three of the criteria listed in 23 CFR 771.117(e): it required a permit from the Army Corps of Engineers; it would result in an adverse effect of a historic property and a use of a Section 4(f) resource; and it would involve construction in, across, or adjacent to a Wild and Scenic River. Under FHWA’s NEPA regulations, if one or more these criteria are present for certain types of projects (including bridge rehabilitation, reconstruction, or replacement), the project applicant must submit supporting documentation for the CE. The project can still be approved with a CE if the documentation demonstrates that it will not result in significant environmental effects. The court held that the plaintiffs’ argument was not supported by the applicable regulations: The criteria in 23 CFR 771.117(e) do not prohibit FHWA from issuing a CE for such a project; they merely require supporting documentation, which FHWA and PennDOT had prepared.

Unusual Circumstances

The plaintiffs challenged FHWA’s reliance on a CE for bridge rehabilitation, reconstruction, or replacement, citing four “unusual circumstances” that warranted additional environmental studies.

Substantial Controversy on Environmental Grounds.

The agencies conceded that the project involved a substantial controversy on environmental grounds. However, as the court recognized, “the presence of unusual circumstances does not automatically trigger the need for an environmental assessment or an environmental impact statement.” Rather, “an action that could involve unusual circumstances merely requires FHWA to conduct appropriate studies to determine if the categorical exclusion classification is proper.” The court concluded that the agencies took a “hard look” at the alternatives’ environmental impacts and conducted appropriate studies to support their reliance on a CE. The court noted that the agencies prepared numerous reports concerning potential environmental effects, met with permitting agencies, made the Draft CE Evaluation and supporting documents available for public review and comment, provided detailed responses to public comments on the Draft CE Evaluation, and held public hearings (even though not required for a CE).

Significant Environmental Impacts.

The plaintiffs asserted that the project would have significant adverse effects on water quality, hydraulics, and aquatic organisms in Tinicum Creek. The court held that the agencies reasonably determined that there would be no significant adverse effects based on the evidence in the record. The court noted that the agencies performed appropriate studies on these issues and provided detailed responses to public comments raising these concerns. The court explained that the agencies’ conclusions based on conflicting scientific evidence were entitled to deference: “Despite plaintiffs’ arguments to the contrary, the record is filled with evidence that Defendants considered the Project’s environmental impacts and performed appropriate studies to determine whether a categorical exclusion was proper. The fact that Plaintiffs submitted contrary evidence and assume that significant effects will result does not mandate a different result: The agency is entitled to select any reasonable methodology and to resolve conflicts in expert opinion and studies in its best reasoned judgment based on the evidence before it.”

Significant Impacts on Historic Properties.

The plaintiffs argued that the project would have significant impacts on historic properties protected under Section 4(f) of the Department of Transportation Act and Section 106 of the National Historic Preservation Act (specifically, the bridge, the historic district, and Tinicum Creek). As an initial matter, the court noted that an agency can rely on a CE for NEPA compliance even where a project results in destruction of a Section 4(f) resource or an adverse effect on a historic property under Section 106, as long as the impact is not significant. Here, the Section 106 consultation process resulted in a memorandum of agreement with mitigation measures to address impacts of replacing the bridge, which included a historically and contextually sensitive design for the project. The court concluded that “it was not arbitrary or capricious for the agencies to rely on the results of [the Section 106] process in determining that adverse effects to the identified historic properties were mitigated and significant environmental impacts would not result.”

The court also rejected the plaintiffs’ assertion that Tinicum Creek was a historic site protected by Section 4(f). During the environmental review process, the National Park Service had recommended that FHWA treat Tinicum Creek as a Section 4(f) resource. In response, FHWA noted that Tinicum Creek had not been designated as a contributing element to the historic district, and guidance from the National Park Service stated that natural waterways generally are not considered eligible for the National Register of Historic Places. The court held that FHWA’s position was entitled to deference and was reasonable. “FHWA took the NPS’s recommendation under consideration and provided a thorough reply explaining its disagreement and providing the basis for that disagreement. In light of this reasoned review and response, the Court will not conclude that Defendants ignored or completely failed to consider the NPS’s recommendation, or that Defendants’ conclusion that Tinicum Creek is not a Section 4(f) resource was arbitrary or capricious.”

Inconsistencies with Federal, State, or Local Laws.

The court disagreed with the plaintiffs’ claim that the project would be inconsistent with federal or state laws. The court held that there was no evidence in the record—other than hypothetical possibilities alleged by the Plaintiffs—that the project would be inconsistent with federal or state laws. PennDOT and FHWA coordinated with other federal and state permitting agencies, and those agencies had not identified any inconsistencies with applicable laws.

Section 4(f)

Prudent and Feasible Avoidance Alternatives

The plaintiffs claimed that rehabilitation of the bridge was a prudent and feasible avoidance alternative that the agencies should have selected. FHWA had determined that two rehabilitation alternatives (a one-lane option and a two-lane option) were not prudent because they would not meet state and AASHTO design standards for bridge width, would not safely accommodate emergency response vehicles turning onto the bridge, and would require weight limits on the bridge. In support of their claim that rehabilitation was prudent, the plaintiffs noted that PennDOT had agreed to rehabilitate the bridge if Tinicum Township would accept ownership and maintenance responsibilities, which allegedly indicated that PennDOT considered rehabilitation to be acceptable. The plaintiffs also argued that state and AASHTO design standards were flexible, that the width of the existing bridge was safe, and that FHWA and PennDOT relied on questionable traffic data.

The court held that rehabilitation was not an avoidance alternative because it would require removing and replacing the bridge spans, which would constitute a use under Section 4(f) (as well as an adverse effect under Section 106). The court also held that even if rehabilitation were an avoidance alternative, FHWA reasonably determined that it would not be prudent. The court noted that FHWA’s conclusions were supported by studies and other evidence in the record. Furthermore, the court explained that even if each of FHWA’s reasons was not, on its own, enough to make the rehabilitation alternatives imprudent, taken together they provided a sufficient basis for FHWA’s decision. The court emphasized that FHWA’s determinations were entitled to deference, even though the plaintiffs presented conflicting evidence: “The Court’s job is most definitely not to re-try the administrative proceedings, gauge the efficacy of the dueling experts, re-calculate turning radii for firetrucks, re-construct traffic accidents or any of the tasks demanded of the agencies. The question is whether Defendants’ decisions were arbitrary and capricious for failing to consider the appropriate, Congressionally intended factors. The Court concludes that they were not.”

Least Overall Harm Analysis

The plaintiffs argued that rehabilitation of the bridge, rather than the selected alternative of a two-lane replacement bridge, would result in the least overall harm to Section 4(f) resources. The court held that it was appropriate for FHWA to exclude rehabilitation alternatives from the least harm analysis because those alternatives were not prudent (see “Prudent and Feasible Avoidance Alternatives” above): “It is irrelevant whether the rehabilitation alternatives would cause less harm to Section 4(f) resources because Defendants were not legally required to carry them forward into the least overall harm analysis. Once defendants determined that the rehabilitation alternatives were not prudent, those alternatives ceased to be part of the equation.”

The court concluded that FHWA’s balancing of the various factors in the least overall harm analysis was not arbitrary or capricious. The court noted that FHWA’s determination was supported by studies and was entitled to deference. The court also explained that FHWA’s decision was supported by the Section 106 memorandum of agreement, which stated that a two-lane replacement alternative was preferred and that mitigation measures adequately addressed the harms to historic properties. The court also rejected the plaintiffs’ argument that FHWA’s mitigation and least overall harm analysis should have focused on the bridge, rather the historic district as a whole: “If all possible planning was taken to minimize harm to the District, then, by pure logic, all harm to its contributing resources, including the Bridge, must also have been minimized.”

• Delaware Riverkeeper Network v PennDOT 08-21-2020.pdf (1 mb)