appears to be calculated to give the agency greater discretion than allowed under section 4(f) determinations pursuant to the standard established in Overton Park.
The Department of Transportation has published an order implementing Executive Order 11,990. U.S. Dept. of Transp. Order 5660.1A, 43 Fed. Reg. 45,285 (Sept. 29, 1978). The Department contends, however, that Executive Order 11,990 does not require a wetlands finding for the Blue Route because the order expressly provides that it does not apply to projects "for which a draft or final environmental impact statement [is] filed prior to October 1, 1977." Executive Order 11,990 § 8, 3 C.F.R. 1977 Compilation at 123; see also U.S. Dept. of Transp. Order 5660.1A para. 8(b), 43 Fed. Reg. at 45,287.
A draft EIS was prepared and filed for the Blue Route in 1976, prior to October 1, 1977. After my order enjoining construction in 1982, however, the FHWA prepared a draft and final supplemental EIS. These documents were prepared after the effective date of Executive Order 11,990. Neither the executive order nor the Department of Transportation order implementing it speaks to the effect of a supplemental EIS on the applicability of the executive order.
The Department of Transportation order, however, provides that "all programs and projects proposed for direct construction, assistance, or permit by the DOT shall be reviewed for consistency with the policy of this order." U.S. Dept. of Transp. Order 5660.1A para. 8(a), 43 Fed. Reg. at 45,287. Where there is some doubt as to the applicability of a law, regulation or order that is intended to protect the environment, such doubt generally should be resolved in favor of its application to guard against permanent damage to the environment. Executive Order 11,990 represents the long-standing and continuing policy of the federal government. There is no demonstration that applying it to this project would present any hardship to the FHWA, particularly in light of the directive in the 1978 Department of Transportation Order to review pending projects for consistency with the Order. Moreover, this Court's order requiring the preparation of a supplemental EIS before going ahead with the project required that environmental consequences be studied further. The supplemental EIS was prepared well after the effective date of the Executive Order.
Indeed, FHWA recognized that the policy of protecting wetlands must be applied to this project. Although FHWA continues to take the legal position that a wetlands finding was not required for this project, it did discuss the impacts to wetlands in the draft supplemental EIS and made a formal wetlands finding in the final supplemental EIS. (Draft SEIS at 91; Final Supplemental EIS at II-12 to II-13, IV-57 to IV-58). The FHWA received comments on the impacts to wetlands and responded by making a formal finding in the final supplemental EIS that committed to mitigation measures, including provision of replacement wetlands. (Final Supplemental EIS at IX-435).
Authority to make the wetlands finding was validly delegated to Ciletti.
Ciletti's decision was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. The highway project would require construction in four wetlands, each less than an acre in size. One other wetland area larger than any of those four would have been taken under the highway as originally proposed but was avoided by adoption of the Task Force Alternative. A more thorough discussion of the economic, environmental and other pertinent factors might have allowed more effective judicial review, but the record is more than adequate to establish that the decisionmaker could reasonably believe that there was no practicable alternative and that all practicable measures to minimize harm to the wetlands were included.
Particularly in light of the commitment to provide replacement wetlands, Ciletti's decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
The FHWA has filed an extensive administrative record documenting the approval of this highway. The record demonstrates that the agency took a good, hard look at all the environmental consequences of building the highway. NEPA demands that the agency thoroughly examine the environmental consequences and set out information sufficient to reach a well-reasoned decision whether to proceed with the project.
Draft and final EIS's were prepared for this project and, in 1979, the FHWA demanded that further study be conducted to determine whether a smaller highway with less adverse impacts to the environment could serve the transportation needs of the area. The Task Force, composed of FHWA and PennDOT officials, came up with a proposal for a smaller highway, which was adopted. Pursuant to my 1982 order, FHWA and PennDOT prepared draft and final supplemental EIS's to document and allow comment upon the environmental consequences of the project in its updated, scaled-down version. The FHWA complied with the procedures mandated by NEPA and the documents provide a sufficient basis to reach a well-reasoned decision on whether to build the highway. The FHWA concluded that the highway should be built, and that decision was not arbitrary or capricious.
Section 4(f) of the Department of Transportation Act places narrow restrictions on the authority of the Department to use parklands and historic sites for the construction of highways. The Department cannot use section 4(f) lands unless truly extraordinary circumstances leave it no other alternative. Even where there is no other alternative, the Department must ensure that all possible measures will be taken to minimize the harm to section 4(f) land.
In my prior opinion enjoining construction of this highway, I stated that merely reciting the categories of adverse impacts associated with building any highway would not provide a sufficient basis for the Secretary of Transportation to conclude that there was no feasible and prudent alternative. The current section 4(f) determination, in contrast to the previous one, is not based on conclusory statements that any alternatives involve hopelessly severe impacts. It details and specifies the reasons for the determination that there is no feasible and prudent alternative.
The FHWA has documented the need for the highway, providing data showing severe current congestion on existing major local roads. It has conducted an exhaustive, objective search for an alternative corridor that would meet the transportation needs of the area without using section 4(f) land. This avoidance corridor analysis documents, in objective terms, the adverse impacts associated with any alternative to taking section 4(f) land. There is no evidence that any of the data considered by the section 4(f) decisionmaker was inaccurate. That data provides an adequate basis for the decisionmaker reasonably to conclude that there was no feasible and prudent alternative to building the highway in the Blue Route corridor.
Both the FHWA and PennDOT have made commitments to extensive mitigation measures to minimize the harm to section 4(f) lands. These plans appear to be as detailed as they can be at this stage of the design of the highway. An environmental monitor and consultation with the Swarthmore College Task Force, as well as the specificity of the commitments in the documents, should ensure that harm will, in fact, be minimized.
This highway has been planned for decades, and those plans have been shown to be a response to a well-demonstrated need. Although the highway was originally planned in an era when planners were less careful about environmental consequences than the planners of today, the FHWA has subjected those original plans to the rigorous scrutiny required of today's projects. As a result of this scrutiny, the highway has been scaled-down, and the plans have incorporated extensive measures to reduce the environmental impacts of the highway construction.
The very existence of this lawsuit demonstrates that not everyone would agree with the decision to build this highway. After over ten years of study and thousands of pages of documentation, however, no one could convincingly claim that the FHWA did not take a good, hard look at the environmental consequences of the project and the possible alternatives.
The Secretary has a very narrow authority to use section 4(f) lands under truly extraordinary circumstances. The FHWA has adequately documented the basis for its reasonable conclusion that this project presented such extraordinary circumstances. This conclusion was not arbitrary, capricious or an abuse of discretion.
Plaintiffs have suggested that all of the time, energy and study that went into preparing the supplemental draft and supplemental final EIS was an exercise in "rubber-stamping" approval of what had previously been decided upon in the original Task Force Addendum, and that the supplemental EIS procedures were a process to rationalize and justify the original decision. This argument presupposes that the earlier plan was substantially flawed. Nothing in my earlier opinion was intended to suggest that the Blue Route as then planned did not comply with all substantive federal environmental laws, or that the route would either have to be substantially relocated or not built at all. The mere fact that the extensive additional studies and airing of public opinion did not cause the decisionmakers to alter the plans, except as to Shift 2, does not mean that both the earlier and present plans were wrongly approved. Having critically reviewed the massive record in this case to be sure that the supplemental EIS is not merely a "post hoc" rationalization, I have reached the firm conclusion that the "Secretary could have reasonably believed in this case that there are no feasible alternatives or that alternatives do involve unique problems"; that the Secretary acted within the scope of her statutory authority; and that the actual choice made was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In addition, all of the substantive and procedural requirements of NEPA, section 4(f) and Executive Order 11,990 have been met.
Having considered the entire administrative record, summary judgment will be entered in favor of the defendants on all counts and issues.
For the reasons stated in the accompanying Memorandum Opinion, it is
ORDERED that summary judgment is entered against plaintiffs and in favor of all defendants on Counts, I, II, III and IV of plaintiffs' complaint. The remaining counts of plaintiffs' complaint already having been dismissed, Civil Action Nos. 84-3951, 81-4627 and 74-925 are terminated.