The opinion of the court was delivered by: VANARTSDALEN
MEMORANDUM OPINION AND ORDER
This action involves a challenge to administrative approval of construction of a highway commonly known as the Blue Route. The plaintiffs challenge the approval of the highway by the United States Department of Transportation, claiming failure to comply fully with several environmental laws including the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4347a, section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303, and Executive Order 11,990, 42 Fed. Reg. 26,961 (May 25, 1977) (providing for protection of wetlands).
Plaintiffs have moved for partial summary judgment claiming they are entitled to judgment as a matter of law on count one, based on section 4(f) of the Department of Transportation Act, and on count two, based on NEPA. Defendants have moved for summary judgment in their favor on all of the four counts remaining in plaintiffs' complaint.
The proposed Blue Route, also known as the Mid-County Expressway, I-476 and L.R. 1010, would be a 21.5 mile limited-access highway running through Delaware and Montgomery Counties a few miles west of Philadelphia. Its southern terminus would be at an interchange with Interstate Highway I-95 near the City of Chester, Pennsylvania. From the I-95 interchange it would stretch northward through Delaware County and into Montgomery County to its northern terminus, an interchange with the Pennsylvania Turnpike, I-276, at Plymouth Meeting, Pennsylvania.
The Blue Route has been in the planning stage for decades, and substantial portions of the highway have already been constructed. The portion of the highway extending from an interchange with the Schuylkill Expressway, I-76, northward to the Pennsylvania Turnpike is not involved in this litigation, that portion having been substantially completed. At issue in the present litigation is a 16.9 lineal mile portion of the highway extending from the I-95 interchange northward to the interchange with the Schuylkill Expressway.
This court enjoined the construction of the Blue Route in 1982 pending completion of a supplemental environmental impact statement (EIS) and of a more thorough analysis and determination under the mandates of section 4(f) of the Department of Transportation Act. After preparation of a supplemental EIS and section 4(f) evaluation, the highway was once again approved by the Department of Transportation, and plaintiffs once again brought an action to enjoin construction.
Plaintiffs' major contentions can be summarized as follows: (1) the section 4(f) determination is procedurally deficient because it was improperly delegated to a regional official; (2) the section 4(f) determination that there is no feasible and prudent alternative and that the project includes all possible planning to minimize harm to section 4(f) land is not supported by the record; (3) the supplemental EIS is deficient under NEPA because it failed to discuss adequately the alternatives to building the highway in the Blue Route corridor; (4) the supplemental EIS is deficient under NEPA in failing to discuss adequately the environmental effects of the project; and (5) there is not a sufficient finding under the requirements of Executive Order 11,990 that there is no practicable alternative to the proposed use of wetlands and that all practicable measures have been taken to minimize harm.
II. Administrative Approval of the Highway4
Planning for an expressway through Delaware and Montgomery Counties began at least as early as the 1950's. In the late 1950's and early 1960's studies were conducted of various possible locations for the highway. Among the locations studied was one corridor designated the Blue Route, which is essentially the route currently proposed for construction. Also studied were routes designated the Red/Yellow Route to the east of the Blue Route, and the Green Route to the west of the Blue Route.
In 1961 the Pennsylvania Highway Department proposed to build the Blue Route, and public hearings were held to consider the issue. That route was approved, and final design began in 1964. Construction began in 1967.
In the late 1960's certain laws passed by Congress revolutionized the process of approval of highways funded by the federal government. Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303,
enacted in 1966, provides in part as amended:
The Secretary may approve a transportation program or project requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance (as determined by the Federal, State, or local officials having jurisdiction over the park, area, refuge, or site) only if --
(1) there is no prudent and feasible alternative to using that land; and
(2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.
The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4347a, became effective on January 1, 1970. NEPA requires that, before a project such as a federally funded highway can be approved, an environmental impact statement (EIS) must be prepared and made available to the public to ensure that all the environmental consequences of such a project are carefully considered.
Although much of the planning for the Blue Route was completed prior to passage of these acts, both NEPA and section 4(f) are fully applicable to the 16.9 mile portion of the Blue Route at issue in this case. Whether or not otherwise required, the Pennsylvania Department of Transportation (PennDOT) and the Federal Highway Administration (FHWA) in the 1970's consented to the applicability of NEPA and section 4(f) to certain planned projects, which included the Blue Route.
In 1974 preparation of an EIS/Section 4(f) Statement for the 16.9 mile section of the Blue Route at issue was begun. That statement was circulated to the public in draft form in 1976 and was submitted to the Federal Highway Administration as a final EIS in 1978. The Federal Highway Administrator and the Secretary of Transportation tentatively refused to approve the project pending consideration of, inter alia, "downscoping" the project, including possible reduction in the number of lanes, the design speed, the median strip width, and the size of the interchanges.
The Task Force recommendations were adopted. What had previously been designated the "Final EIS" was renamed the "base Final EIS" and the Task Force report was incorporated as an "Addendum." On the basis that the base Final EIS together with the Addendum satisfied NEPA, the Task Force's scaled-down version of the Blue Route was administratively approved. Several local governments and citizen groups brought an action to enjoin construction of the highway. On August 30, 1982 I enjoined construction of the highway pending completion of a supplemental EIS considering the effects of the Task Force scaling down the project and further articulation of why there was no feasible and prudent alternative to using land protected by section 4(f).
In response to the court order in Marple Township v. Lewis, 21 ERC (BNA) 1010, C.A. Nos. 81-4627 and 74-925 (E.D. Pa. Aug. 30, 1982), the FHWA and PennDOT prepared a draft and supplemental Environmental Impact Statement/Section 4(f) Evaluation. In July 1983, the draft supplemental EIS/4(f) Evaluation was circulated for review and comment, and public hearings were held on September 14 and 15, 1983.
A final supplemental EIS/4(f) Evaluation was prepared by the Region III headquarters of the FHWA and forwarded to the Washington office for approval. On March 1, 1984 the FHWA informed the office of the Assistant Secretary of Transportation for Policy and International Affairs and the office of the General Counsel to the Secretary that it was reviewing the proposed final supplemental EIS/4(f) Evaluation for approval. (See Administrative Record (A.R.) 213; Affidavit of Jeffery N. Shane [Exhibit A to Docket Entry #44] para. 12.) Two weeks later, no action having been taken by either the Assistant Secretary's office or the General Counsel's office, both of those offices by their silence expressed their approval of the highway. Either office could have intervened within that two week period, or apparently at any time prior to the concurrence by the FHWA Washington office. (See Shane Affidavit; A.R. 305 at 148).
The Washington office of the FHWA granted its "prior concurrence" in the final supplemental EIS/4(f) Evaluation on April 9, 1984. (A.R. 252). The FHWA prior concurrence was signed by Harter Rupert, Chief, Environmental Review Branch of the FHWA. On the same day, the final supplemental EIS/4(f) Evaluation was signed by Vincent Ciletti, Director, Office of Planning and Program Development, FHWA Region III.
After publication in the Federal Register of notice of the availability of the EIS, Vincent Ciletti signed the record of decision formally approving the project on July 25, 1984. (A.R. 303).
As reflected in the final supplemental EIS/4(f) Evaluation and the record of decision (ROD), Ciletti, on behalf of the Secretary, approved the Selected Alternative, which was the Task Force Alternative with certain minor alterations, and found that there was no feasible and prudent alternative to the use of section 4(f) land and that the proposal included all possible planning to minimize harm to section 4(f) land. In his approval of the project, Ciletti noted that the use of parklands and historic sites had been significantly reduced from the plan as proposed in the pre-Task Force EIS/4(f) Statement. He acknowledged that "from a naturalistic point of view, the Do Nothing Alternative could be considered the preferred environmental alternative in the corridor since no physical disruption would occur in the stream valleys." (A.R. 303 at 3). He concluded, however, considering "the transportation needs within the corridor and the environmental impacts" that "the Selected Alternative is considered to be in the public interest and is overall environmentally preferred." (Id.)
With regard to the section 4(f) determination, the major alternatives discussed were the Total Avoidance Alternative, the Do Nothing Alternative, and the Improvements to Local Roads Alternative. The Do Nothing Alternative is essentially identical to the Improvements to Local Roads Alternative considering the forecast that doing nothing would result in such congestion of traffic that local residents would demand improvement in local roads. (Final Section 4(f) Evaluation at III-17). These two alternatives are collectively referred to as the No Build Alternative.
My opinion in Marple Township v. Lewis directed that, in making the section 4(f) determination, the Secretary should consider possible routes outside the Blue Route corridor. (Slip op. at 38). The final section 4(f) evaluation describes an "Avoidance Corridor Analysis" that was conducted to determine whether a feasible and prudent alternative route could be found outside the Blue Route corridor. (Final Section 4(f) Evaluation, part II).
The first step of this avoidance corridor analysis was to define the area within which to develop alternative corridors. The issue was referred to the Delaware Valley Regional Planning Commission (DVRPC).
The DVRPC prepared a report in December 1982 entitled Supplemental Data for the Mid-County Expressway. (Exhibit A to Affidavit of Marguerite S. Walsh [Docket Entry #48], hereafter cited as DVRPC Report). The DVRPC blocked out three travel bands (A, B & C) in which the highway might theoretically be located. The travel bands are each approximately 75 square miles in size, lie to the west of the Schuylkill Expressway and stretch between I-95 and the Pennsylvania Turnpike. Travel Band C is the band farthest east (nearest to Philadelphia), and is where most of the Selected Alternative is located. Travel Band B is to the west of Travel Band C, and Travel Band A is to the west of Travel Band B.
The DVRPC study projected the daily miles of travel for a highway located in each of the respective travel bands. The figures for daily miles of travel projected in the DVRPC study were as follows: Travel Band A, 1,498,021 daily miles of travel; Travel Band B, 2,844,136 daily miles of travel; and Travel Band C, 3,573,336 daily miles of travel. The DVRPC also used its data in a mathematical formula to determine the location for the highway that was "most suitable to serve the travel needs of the metropolitan area." (DVRPC Report at 9). The study concluded that the optimal location for the highway was 7.7 miles west of the Schuylkill Expressway and noted that such a location "coincides with the median of the proposed Mid-County Expressway in [Travel Band] C." (Id. at 11).
Noting, on the basis of the DVRPC study, that "an alignment located in Travel Band A would serve 60% less traffic than one located in Travel Band C; and 40% less than in Travel B," PennDOT and FHWA "determined that travel demand in that Travel Band would not warrant a facility and therefore no alignments [in Travel Band A] were studied or evaluated." (Final Section 4(f) Evaluation at II-2). Thus, the avoidance corridor analysis -- seeking a location for the highway that totally avoided all section 4(f) lands -- was limited to the 150 square mile study area of travel bands B and C.
These eleven Candidate Corridors were compared with respect to thirteen categories of adverse impacts.
This comparison yielded a single corridor (C-1) that was deemed "clearly least disruptive." (Final Section 4(f) Evaluation at II-8). This corridor was designated the Total Avoidance Corridor and was subject to further analysis in comparison to the Selected Alternative.
During the public comment stage, the Total Avoidance Alternative received vehement opposition similar to the opposition expressed as to the Selected Alternative. Interestingly, no one involved in this litigation (including plaintiffs, state and federal defendants and intervenor defendants) argues that the Total Avoidance Alternative is feasible and prudent. In the section 4(f) determination Ciletti found that "the Total Avoidance Alternative would have unusual impacts on the communities through which it passes and cumulative impacts of extraordinary magnitude." (A.R. 303 at 7). On the basis of the impacts discussed in the Final Section 4(f) Evaluation, Ciletti concluded that the Total Avoidance Alternative was not feasible and prudent.
Ciletti also found that the Do Nothing Alternative and the Improvements to Local Roads Alternative were not feasible and prudent. Essentially, he found that, if the highway were not built, local roads would become severely congested, requiring the widening of existing roads. Widening such roads, in turn, would not adequately meet the transportation needs of the region and would require using a number of section 4(f) sites.
Ciletti also considered four localized shifts from the Task Force Alternative to avoid specific section 4(f) sites. Of these shifts, only Shift 2 was adopted. By including Shift 2 in the Selected Alternative, PennDOT and FHWA avoided use of the Springfield Country Club and reduced the amount of land taken from Smedley Park by 0.2 acres. Shifts 1, 3 and 4 were found not to be feasible and prudent.
Finally, having found that there was no feasible and prudent alternative to the use of section 4(f) lands in the Selected Alternative, Ciletti also found that the highway proposal included all possible planning to minimize harm. Ciletti was satisfied with the proposed noise abatement measures, landscaping plans and functional replacement of land taken. He found that such measures fulfilled the requirements of section 4(f)(2).
III. The Section 4(f) Determination
A. The Requirements of the Department of Transportation Act and the Standard of Review
Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303, provides that the Secretary of Transportation may approve a highway project that uses public parkland or historically significant land only if -- "(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use." The Act explicitly declares that "it is the policy of the United States Government that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites." 49 U.S.C. § 303(a).
As the Supreme Court stated in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 411, 91 S. Ct. 814, 821, 28 L. Ed. 2d 136 (1971), section 4(f) is "a plain and explicit bar to the use of federal funds for contruction [construction] of highways through parks -- only the most unusual situations are exempted." The Secretary may not find that the interest in preserving parkland is overridden in a particular instance merely by balancing factors such as cost and community disruption caused by a route through parkland against the cost and community disruption associated with a route through developed land.
Congress clearly did not intend that cost and disruption of the community were to be ignored by the Secretary. But the very existence of the statutes indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems.
Overton Park, 401 U.S. at 412-13, 91 S. Ct. at 821-22 (footnotes omitted).
In the present case, the Secretary, through her delegate, did find that there was no feasible and prudent alternative to using section 4(f) land and that all possible planning to minimize harm was included in the proposal. The Secretary's determination under section 4(f) is subject to review in federal district court pursuant to section 701 of the Administrative Procedure Act, 5 U.S.C. § 701. See Overton Park, 401 U.S. at 410-13. The standard of review under the Administrative Procedure Act applicable to section 4(f) determinations is set forth in Overton Park, 401 U.S. at 415-17.
The Secretary's decision is entitled to a presumption of regularity, but that presumption does not shield her decision from a "thorough, probing, in-depth review." Id. at 415. There are three aspects [aspects] to the inquiry required of a court reviewing a section 4(f) determination. See id. at 415-17; Arizona Past & Future Foundation v. Lewis, 722 F.2d 1423, 1425 (9th Cir. 1983); Environmental Defense Fund v. Volpe, C.A. Nos. 70-2651 and 72-419, slip op. at 20-21 (E.D. Pa. 1982), see also Township of Springfield v. Lewis, 702 F.2d 426, 441 (3d Cir. 1983). The first inquiry is whether the Secretary acted within the scope of her authority. This first inquiry has two parts. First, the court must determine whether the Secretary properly construed her authority under section 4(f), and second, the "court must be able to find that the Secretary could have reasonably believed that in this case there [were] no feasible and prudent alternatives or that alternatives [did] involve unique problems." Overton Park, 401 U.S. at 415-16. The second inquiry is whether the actual choice made was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Overton Park, 401 U.S. at 416, 91 S. Ct. at 823.
Id. The Third, and final, inquiry is whether the Secretary followed all the necessary procedural requirements. Id. at 417.
B. The Secretary's Delegation of Authority
Despite the size and importance of this highway project and the long-standing controversy surrounding it, the section 4(f) determination was not made personally by the Secretary of Transportation, as some section 4(f) determinations have been made in the past. See, e.g., Overton Park, 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). Instead, the decision was delegated to Vincent Ciletti, the FHWA Region III Director of the Office of Planning and Program Development. Plaintiffs argue that this delegation is impermissible under the mandate of section 4(f). They argue that section 4(f) requires the Secretary herself to make the findings. Plaintiffs further argue that, even if the Act is construed to allow delegation, the section 4(f) determination is invalid because of lack of supervision and direction by the officials who delegated authority.
Plaintiffs' argument that the section 4(f) determination is nondelegable has some appeal but does not appear to be supported by the law. As a practical matter, an official such as the Secretary of Transportation must of necessity delegate many discretionary functions. Nevertheless, by enacting section 4(f), Congress contemplated that use of parklands be few and far between. I can think of no more effective way of limiting the use of parklands to truly unique situations than to require the Secretary of Transportation personally to make all section 4(f) determinations while subjecting each determination to a thorough, probing, in-depth review by a federal district court. I cannot conclude, however, that Congress intended the Secretary personally to make each section 4(f) determination. In practical terms, allowing delegation permits, and may effectively cause, a more thorough examination by the decisionmaker.
Plaintiffs' argument is based on the language of section 4(f) which declares, " The Secretary may approve a . . . project requiring the use of [parkland] . . . only if -- (1) there is no prudent and feasible alternative . . .; and (2) the program or project includes all possible planning to minimize harm . . . ." 49 U.S.C. § 303(c) (emphasis added). The statute speaks of what "the Secretary" may do, not of what the Department of Transportation may do, nor of what the Secretary or her delegate may do.
Plaintiffs attempt to support their argument by citing various cases in which the Secretary was personally involved in the decisionmaking and in which there is language suggesting that only the Secretary may make the findings required by section 4(f). Personal involvement of the Secretary in one case, however, does not mandate personal involvement in another. Moreover, all of the case language plaintiff claims suggests that the Secretary must personally make the decision actually refers to the responsibility of the Secretary vis a vis parties outside the Department of Transportation. See D.C. Federation of Civic Associations v. Volpe, 148 U.S. App. D.C. 207, 459 F.2d 1231, 1249 (D.C. Cir. 1972) ("the Secretary himself must decide," meaning Secretary must reach decision on the merits, not on the basis of political pressure), cert. denied, 405 U.S. 1030, 31 L. Ed. 2d 489, 92 S. Ct. 1290 (1975); Environmental Defense Fund v. Brinegar, 4 E.L.R. 20,534, 20,542 (E.D. Pa. 1974) ("The responsibility for making the determination mandated by § 4(f) lies, of course, with the Secretary of U.S. DOT and not with this Court."); Lathan v. Volpe, 350 F. Supp. 262, 267 (W.D. Wash. 1972) ("the Secretary alone must make the determination," referring to the relative authorities of the U.S. Secretary and state and local officials), aff'd in pertinent part, 506 F.2d 677 (9th Cir. 1974); see also Brooks v. Volpe, 350 F. Supp. 269, 282 (W.D. Wash. 1972) ("There can be no doubt that in the instant case the Secretary was required to make the necessary certification," -- the Ninth Circuit had previously held that § 4(f) lands were "used" within the meaning of the statute, and so a § 4(f) determination was required), aff'd, 487 F.2d 1344 (9th Cir. 1973).
To determine whether an agency head may delegate authority established by an act of Congress, the court should look to the legislative intent of the statute. See Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 119-23, 91 L. Ed. 1375, 67 S. Ct. 1129 (1947). Express statutory authority is not necessarily required for delegation within an agency. Hall v. Marshall, 476 F. Supp. 262, 272 (E.D. Pa. 1979), aff'd, 622 F.2d 578 (3d Cir. 1980); see also Tabor v. Joint Board for Enrollment of Actuaries, 185 U.S. App. D.C. 40, 566 F.2d 705, 708 & n.5 (D.C. Cir. 1977); Wirtz v. Atlantic States Construction Co., 357 F.2d 442 (5th Cir. 1966). If Congress clearly expresses an intent that no delegation is to be permitted, then that intent must be carried out. See United States v. Giordano, 416 U.S. 505, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974). See generally 1 K. Davis, Administrative Law Treatise § 3:18 (2d ed. 1978).
In the Department of Transportation Act, the intent to permit delegation is clear. The Act explicitly provides for delegations of authority:
The Secretary may delegate, and authorize successive delegations of, duties and powers of the Secretary to an officer or employee of the Department. An officer of the Department may delegate, and authorize successive [successive] delegations of, duties and powers of the officer to another officer or employee of the Department. However, the duties and powers specified in sections 103(c)(1), 104(c)(1), and 106(g)(1) of this title may not be delegated to an officer or employee outside the Administration concerned.
49 U.S.C. § 322(b). Plaintiffs have cited no provision of the Act or excerpt from its legislative history that would suggest that the authority to make a section 4(f) determination cannot be delegated.
On the other hand, defendants have cited a number of cases in which section 4(f) determinations made by delegates of the Secretary have been approved by federal courts. Louisiana Environmental Society Inc. v. Dole, 707 F.2d 116, 118 (5th Cir. 1983) (Federal Highway Administrator); Township of Springfield v. Lewis, 702 F.2d 426, 433 (3d Cir. 1983) (FHWA Regional Director); Monroe County Conservation Council v. Adams, 566 F.2d 419, 426 (2d Cir. 1977) (Federal Highway Administrator), cert. denied, 435 U.S. 1006, 56 L. Ed. 2d 388, 98 S. Ct. 1876 (1977); Maryland Wildlife Federation v. Lewis, 560 F. Supp. 466, 469-71 (D. Md. 1983) (Federal Highway Administrator), aff'd, 747 F.2d 229 (4th Cir. 1984); Citizens Committee for Environmental Protection v. United States Coast Guard, 456 F. Supp. 101, 106 (D.N.J. 1978) (Commandant of the Coast Guard); Inman Park Restoration v. Urban Mass Transportation Administration, 414 F. Supp. 99, 125-26, 129 (N.D. Ga. 1975), aff'd, 576 F.2d 573 (5th Cir. 1978) (Urban Mass Transportation Administrator). The issue of the validity of the delegation of approval authority was not raised by the parties in any of these cases. Only one of the cited cases, however, Township of Springfield v. Lewis, 702 F.2d 426 (3d Cir. 1983), presented a decisionmaker as remote from the Secretary as that in the present case.
Although the Act explicitly permits delegation and subdelegation, 49 U.S.C. § 322, there may be some limit to the degree of delegation that is consistent with the mandate of section 4(f). If no delegation were permitted it would clearly "mean less, not greater, attention to the intrinsic merits of each situation requiring action." Wirtz, 357 F.2d at 445. If, however, there were no limitations whatsoever upon the delegation permitted in a given situation, those charged with responsibility by Congress could wholly abdicate that responsibility and frustrate the intent of Congress and the policy of the Act in question. Cf. National Small Shipments Traffic Conference, Inc. v. Interstate Commerce Commission, 233 U.S. App. D.C. 336, 725 F.2d 1442, 1450-51 (D.C. Cir. 1984) ("At some point . . . staff-prepared synopses may so distort the record that an agency decisionmaking body can no longer rely on them in meeting its obligations under the law.").
Excessive delegation may also frustrate the policy of the Act by encouraging the decisionmaker to misconstrue his or her authority under the Act as delegated. Before protected lands can be used, the Act requires the decisionmaker to find that there is no feasible and prudent alternative and that harm is minimized. In a highly controversial project such as this one, in which extensive litigation is expected, (see A.R. 280), a person well down the line of delegation from the Secretary may perceive that the decision to approve the project is being made on several levels of authority above, and that his or her role is merely to provide adequate documentation to support a finding of no feasible and prudent alternative. The official to whom authority is delegated is placed in the difficult position of having to exercise independent judgment while following the instructions of those responsible for oversight and supervision. The officials delegating authority, on the other hand, must not abdicate their responsibility for oversight and supervision but must not unduly influence the decisionmaker in such a way that the ultimate decision is not based on independent judgment in consideration of only the relevant factors.
Section 4(f) dictates the exercise of prudence, which requires independent judgment, to determine which unique situations involve such extraordinary impacts as to warrant the use of protected land. If the authority to make the section 4(f) determination is delegated too far down the line and subject to undue influence from above, independent judgment is precluded and the delegation would be inconsistent with section 4(f). Prudence, on the other hand, also requires an expertise in environmental issues and a thorough familiarity with the specific impacts of all possible alternatives. Thus, if the Secretary herself made the determination without fully reviewing all the available information, the failure to delegate responsibility to one familiar with the record would be equally inconsistent with the Act.
With these concerns in mind, a detailed examination of the delegation and oversight exercised with respect to approval of the Blue Route follows. Tracing the precise avenue of delegation in this case is no easy task; although the path can be followed, the road is not always clearly marked, and it takes a few unexpected turns.
Both the delegation to the Regional Administrator and his delegation to Ciletti were subject to a significant limitation. The prior concurrence of the Washington Headquarters of the FHWA was required for certain "highly controversial" projects. A project is considered highly controversial, and therefore requires prior concurrence "when the action is opposed on environmental grounds by a Federal, state, or local agency or by a substantial number of the persons affected by such action." U.S. DOT Order 5610.1C para. 11(d), A.R. 305 at 148.
In addition to prior concurrence of the FHWA Washington Headquarters, the prior concurrence procedure also provided for notice to the Assistant Secretary for Policy and International Affairs and to the General Counsel to the Secretary that the final documents were under review for approval. The Assistant Secretary and the General Counsel were to be provided with copies of the summary section of the final documents and were to be given at least two weeks notice before approval by the Washington Headquarters of the FHWA. U.S. DOT Order 5610.1C para. 11(d), A.R. 305 at 148.
This procedure was followed (see A.R. 213). The Assistant Secretary's Office conducted an independent review of the entire final supplemental EIS/4(f) Evaluation, was briefed on the project by the FHWA, and decided that no further involvement by the Office of the Secretary was required.
(Shane Affidavit paras. 12-15; A.R. 222). Prior concurrence by the FHWA Washington Office was not granted until April 9, 1984, well after two weeks had passed since notice to the Assistant Secretary and General Counsel. The failure of the Assistant Secretary and the General Counsel to intervene prior to the prior concurrence of the FHWA Washington Office constituted their implicit approval of the project.
The FHWA Organization Manual vests authority in the Associate Administrator for Right-of-Way and Environment to "give prior concurrence of the Washington Headquarters for final environmental impact statements and section 4(f) approvals." (FHWA Order 1-1 para. 11(i), A.R. 305 at 285). It also provides that this authority may be redelegated. On April 6, 1984 the Associate Administrator for Right-of-Way and Environment delegated prior concurrence authority to Ali F. Sevin, the Director of FHWA's Office of Environmental Policy. This authorization also permitted redelegation. (A.R. 305 at 287). Mr. Sevin, in turn, delegated the authority to grant prior concurrence of the Washington Headquarters to Harter M. Rupert, Chief of the Environmental Review Branch. It was Mr. Rupert, who, on ...