associations, ten political subdivisions, five businesses, and a state legislator. Five other state legislators and a federal congressman were permitted to join the intervenors on February 1, 1995. The intervenors support construction of the road in its current form. They have submitted briefs and made arguments advancing their position.
A state legislator was allowed to intervene on plaintiffs' behalf on February 1 as well.
In challenging the Agencies' decision to divide the project north of I-70 into two segments, plaintiffs invoke the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., the Intermodal Surface Transportation Efficiency Act ("ISTEA"), 23 U.S.C. § 134, and federal regulations associated with each. Plaintiffs allege, among other things, that political pressure, and not practicality, compelled the participants at that time to divide the northern portion of the Project in two (I-70 to Route 51 and Route 51 to Pittsburgh), and to accelerate planning and construction of the southern of these two sections.
Plaintiffs' application to the Court for final judgment in its favor takes the form of a Request for Final Injunctive Relief. Doc. No. 27. Defendants have moved for summary judgment. Doc. No. 30.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We find no genuine disputes of material fact, principally because this is an administrative record review case. See Lake Erie Alliance v. Army Corps of Engineers, 526 F. Supp. 1063, 1068 (W.D. Pa. 1981) Instead, the disputes lie in the legal issues of whether and to what extent the Agencies complied with the procedural requirements of NEPA and ISTEA.
GENERAL SCOPE OF REVIEW
Plaintiffs' entitlement to pursue this case, and our authority to review the federal administrative action taken, arise out of provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 702, 706.
The APA roots of this method of analysis are worth noting for several reasons. First, a fair number of relevant NEPA cases do not mention the APA, though they cite controlling terms, such as the arbitrary and capricious standard of review of agency action, taken from the statute. Second, the parties have only modestly considered the APA in seeking final judgment.
Finally, resort to APA principles applied to other forms of agency decisionmaking may resolve ambiguities or fill gaps left by decisions involving NEPA, for example, by helping define the scope of the record properly subject to review, or by controlling our interpretation of ISTEA, which few courts have reviewed.
In applying the APA, the agency's decision "is entitled to a presumption of regularity. . . . But that presumption does not shield [agency] action from a thorough, probing, in-depth review." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971). The remedy available were we to find a violation of NEPA or ISTEA is narrow. "The proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation. The reviewing court is not generally empowered to conduct a de novo inquiry into the matter being reviewed and to reach its own conclusions based on such inquiry." Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 84 L. Ed. 2d 643, 105 S. Ct. 1598 (1985).
A manifestation of this principle is the deference we must accord executive agency decisions.
[The] view of the agency charged with administering the statute is entitled to considerable deference; and to sustain it, we need not find that it is the only permissible construction that [the agency] might have adopted but only that [the agency's] understanding of this very "complex statute" is a sufficiently rational one to preclude a court from substituting its judgment for that of [the agency].