The opinion of the court was delivered by: ROBERT J. CINDRICH
This is an action for review of a decision to build a seventeen mile, $ 413 million limited access highway, from Interstate 70 to Route 51 near Large, Pennsylvania, a point short of the major metropolitan area in the region. The immediate issues raised by this decision concern vehicle traffic. Rarely below the surface and directly connected to the traffic issues, however, are matters of economics, land development, employment, politics, regional influence, ecology, and sociology.
The parties and intervenors address both the traffic and non-traffic issues at length in their briefs. This is to be expected given their importance and the anticipated direct relationship between the highway and the fortunes of surrounding communities. Indeed, the obvious and intrinsic importance of these issues may make it difficult to accept that a court cannot influence related decision-making, and can exercise authority over such cases only under fairly narrow conditions. It is not that the Court considers these issues any less important. Rather, the law firmly recognizes that the elements that make up such decisionmaking are so diverse that they are consigned to officials and agencies with specialized knowledge, experience, resources, and mechanisms for broad public participation that a court does not possess. Thus, while a host of issues must be considered by the defendants ("Agencies") in deciding what form their transportation objectives will take, we review the Agencies' actions only to ensure that such issues are genuinely considered. We are not free to weigh the many competing interests underlying these issues. Having reviewed the Agencies' consideration of the issues in detail we conclude that their actions were consistent with governing law. Accordingly, plaintiffs' challenge to the Agencies' actions will be denied.
What is now known as the Mon/Fayette Transportation Project is a series of roads and prospective roads extending 65 miles from I-68 near Morgantown, West Virginia to the City of Pittsburgh. Southern portions of this project have been completed and are open for traffic. At issue here is the construction of the northern portion. ARBD 27 PO-2 to PO-3.
At one time the northern portion was conceived of as a single road extending from I-70 to I-376, to be built in a single stage. In its present form in this litigation, this portion of the project has been divided. The roadway is now planned to span seventeen miles from I-70 near Speers, Pennsylvania to Route 51 near Large, Pennsylvania; it does not extend to I-376 or the City of Pittsburgh. It will lie west of the Monongahela River, in rough proximity to Mid-Mon Valley
communities such as Donora, Charleroi, Monessen, and Monongahela. It will be a four lane, limited access toll road with interchanges near Charleroi, Monongahela, and Finleyville. It will be constructed by the Pennsylvania Turnpike Commission ("Commission") and become part of the Pennsylvania Turnpike System. ARBD 27 at II-36 to II-43.
With federal funding in place, construction planning proceeded. Until June 1992, studies of the northern portion of the Mon/Fayette Transportation Project were based on a road that stretched from I-70 to I-376. See ARBD 1 at 7; ARBD 3 at 1-6; ARBD 35 at 167.
For example, an engineering study for the Commission issued in March 1992 evaluated the road from I-70 to I-376. ARBD 3. There is no question that the proposed transportation project was to be linked to the major metropolitan areas of Morgantown and Pittsburgh. See, e.g., ARBD 35 at 9. There likewise is no question that the entire Mon/Fayette Project, while ultimately intended to encompass a continuous road surface, was being planned and built in different stages at different times. See, e.g., ARBD 27 at PO-2; ARBD 1 at 7; ARBD 3 at 1-2; ARBD 35 at 177.
On June 29 and 30, 1992, more than sixty federal, state, and local officials participated in a conference
to re-evaluate the transportation needs of the Morgantown-Pittsburgh corridor. The conferees concluded that:
reconsidering different project needs in the corridor from Pittsburgh, Pennsylvania to Morgantown, West Virginia showed differing needs for different sections, depending upon: variations in the surrounding areas; existing highway conditions; projections of future traffic demands; and known community and environmental constraints.
In order to design improvements to best meet these varying needs most effectively, the overall transportation improvements for the corridor were designated as individual projects, with individually determined alternatives and individually tailored environmental studies.
ARBD 27 at PO-5. Project construction and the accompanying environmental impact studies thus were to be divided into four geographical areas:
(1) I-68 to Uniontown, Pennsylvania;
(3) I-70 to Route 51; and
(4) Route 51 to Pittsburgh.
The Agencies outlined the perceived benefits to this approach, namely: greater responsiveness to local needs; independent scheduling of environmental review; and precision that is lost when impacts are assessed in project areas that are too large. ARBD 27 at PO-5.
Following the June 1992 conference the FHWA requested the EPA and the Army Corps of Engineers to become cooperating agencies in developing environmental impact statements ("EIS"). These agencies and others participated in regular coordination meetings to continue review of the project goals, suggest alternatives, and resolve problems related to the project. ARBD 27 at PO-12.
A Draft Environmental Impact Statement ("DEIS") was circulated in March 1993, and a public hearing held in May 1993. A Supplemental DEIS was issued in September 1993 to address an alternative route known as the Green Alignment running through Jefferson Borough, Allegheny County. ARBD 21 at 1. Another public hearing was held in October 1993 to provide and receive additional information about the project.
Based on the DEIS, Supplemental DEIS, agency comments and public comments, a two-volume Final Environmental Impact Statement ("FEIS") was prepared. ARBD 27 and 28. The FEIS identified the needs of the Mon Valley and the purposes of transportation improvements for that area:
-- existing poor roadway conditions impede efficient movement of goods and services throughout the area;
-- roadway capacity is insufficient to relieve existing and future congestion;
-- vehicular and pedestrian safety needs to be improved;
-- roadway linkage between major highways serving the area is insufficient;
-- accessibility to social services and accessibility by emergency services in the area needs to be improved;
-- transportation services capable of supporting economic redevelopment of the area are not present.
ARBD 27 at ES-2. The FEIS reviewed four alternatives for the I-70 to Route 51 project that would serve these objectives. A transportation system management alternative would make improvements to the existing road system and implement changes that would not require construction, such as additional bus service and staggered travel times. The upgrade of existing highways alternative would make substantial construction improvements to Routes 837 and 88 that now serve the area. The no-build alternative consists of only routine improvements. The new alignment alternative consists of the limited access, four lane toll road from I-70 to Route 51. ARBD 27 at ES-2 to ES-3.
The FHWA approved the FEIS on February 23, 1994. Notice of the availability of the FEIS was published in the Federal Register on March 4, 1994. A public hearing on the FEIS was conducted on March 16, 1994. The EPA, Army Corps of Engineers, and three state agencies had no objections to the FEIS. ARBD 32 at 5. After reviewing the environmental documents and comments, the FHWA issued a Record of Decision on May 19, 1994, selecting the new highway alternative. ARBD 32. This constitutes the FHWA's final agency decision. The alternative selected includes a stretch known as the Green Alignment which, though not agreeable to all residents affected, was suggested by a group of residents of Jefferson Borough. ARBD 32 at 6.
Before and after the June 1992 conference, the United States Fish and Wildlife Service, Department of the Interior, recommended that the cumulative effects of the entire Morgantown-Pittsburgh corridor be studied. The Commission thereafter formed a Cumulative Project Impacts Subcommittee to gather information consistent with its title. The Subcommittee met five times from June 1993 to December 1993, and had begun considering a model by which to analyze the cumulative effects of the entire project. See, e.g., ARBD 27 at PO-11; Doc. No. 29. Its work ended, however, when the FEIS was issued in February 1994.
We believe this to be a sufficient factual account to preliminarily inform the analysis that follows. Rather than include more of the extensive factual history here, we prefer to cite additional facts as necessary below in our analysis.
Plaintiffs filed their complaint on July 6, 1994. At a hearing before Judge Ambrose on August 22, 1994, the Court considered the status of the case and the parties agreed to submit an administrative record for review, which they have done. This record consists of 70 volumes (including two supplements, filed separately by plaintiffs and defendants), totalling approximately ten linear feet of documents.
Plaintiffs moved for final injunctive relief on October 3, 1995. Defendants moved for summary judgment on October 20, 1994. After the case was reassigned, we held a status conference on December 1, 1994. We then heard oral argument on the pending motions on January 26, 1995.
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.
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].
Chemical Mfrs. Ass'n v. Natural Resources Defense Council, Inc., 470 U.S. 116, 125, 84 L. Ed. 2d 90, 105 S. Ct. 1102 (1985). Accord Matter of Seidman, 37 F.3d 911, 924 (3d Cir. 1994); EEOC v. City of Mt. Lebanon, 842 F.2d 1480, 1492 (3d Cir. 1988) (agency's interpretation "especially important" where specialization is significant factor supporting agency action); National Ass'n of Metal Finishers v. EPA, 719 F.2d 624, 637 (3d Cir. 1983) ("if an act is susceptible to more than one reasonable interpretation, we must accept any reasonable interpretation chosen by the agency"), rev'd on other grounds, 470 U.S. 116, 105 S. Ct. 1102, 84 L. Ed. 2d 90 (1985); Budd Co. v. Occupat'l Safety and Health Review Commission, 513 F.2d 201, 204 (3d Cir. 1975) (courts obliged to accord "great deference" to agency interpretation of statutes committed to it for implementation).
Review of agency decisions under the APA is based on "the whole record or those parts of it cited by a party." 5 U.S.C. § 706. This provision refers to the administrative record before the agency at the time the decision was made. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 421, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971).
"The focal point for judicial review [of agency action] should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142, 36 L. Ed. 2d 106, 93 S. Ct. 1241 (1973). The task of the reviewing court is to apply the appropriate APA standard of review, 5 USC § 706, to the agency decision based on the record the agency presents to the reviewing court.
Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 84 L. Ed. 2d 643, 105 S. Ct. 1598 (1985). This standard applies to review of agency decisions under NEPA. Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988).
Plaintiffs dispute the Agencies' reliance on a February 18, 1994 letter from the EPA's acting regional administrator to Davitt Woodwell, a staff attorney for the Pennsylvania Environmental Council. Doc. No. 28. Plaintiffs assert that the letter should be excluded from the administrative record because it was not considered by the defendants in their decisionmaking. They cite no authority defining the scope of the record. Instead, they cite twenty-one cases containing language criticizing the EPA. Pls' Reply Br. at 7-9, Doc. No. 37. The Agencies respond that the EPA participated in the NEPA process, and regularly expressed its policy views and specific conclusions regarding the Mon Valley/Fayette Transportation Project. They argue that this letter essentially repeats EPA positions expressed elsewhere in the administrative record, and so should not be excluded.
The EPA letter predates the FHWA's May 19, 1994 Record of Decision, the final agency action. The EPA was directly involved with the Project as a cooperating agency on the FEIS. The Pennsylvania Environmental Council commented on the Project. In fact, the FEIS contains twenty-eight pages of comments by Mr. Woodwell himself on the DEIS and Supplemental DEIS. ARBD 28 at VIII-219 to VIII-232.
A document need not literally pass before the eyes of the final agency decisionmaker to be considered part of the administrative record. We find no distinction between the EPA letter in question, for example, and the comprehensive Agency responses to commentators contained in section VIII of the FEIS. ARBD 28. Given the identities of the author and the recipient and the subject matter of the letter, we find the February 18, 1994 EPA letter properly part of the administrative record, although we do not view its inclusion as in any way affecting the outcome of this case.
With the exception of plaintiffs' objection to this letter, the scope of the administrative record has not been a point of contention among the parties in seeking final judgment. We address one other matter regarding the scope of the record as a housekeeping measure, and for the possible benefit of a reviewing court. The parties have filed supplements to the administrative record. Doc. Nos. 29, 32. The intervenors have filed a "List of Supplemental Exhibits." Doc. No. 33. Without making document-by-document findings, it appears that plaintiffs' and defendants' submissions are part of the administrative record because of the topics, agencies, and persons mentioned therein. We cannot say the same for the intervenors' exhibits and we have not accepted them as properly a part of the administrative record.
Plaintiffs argue that, under NEPA, the Agencies are required to consider the cumulative impacts of both the I-70 to Route 51 road and the Route 51 to Pittsburgh project in a single EIS. They also contend that NEPA requires the Agencies to consider the upgrade of Route 51 South as an alternative. Under ISTEA, they allege that the Agencies improperly denied public participation in the production of two studies compelled by regulations under the statute. They also dispute the FHWA's decision to dispense with one of the studies as a separate document, and they challenge the fundamental reliability of the other.
A. The Statute and Associated Scope of Review
NEPA imposes duties upon agencies that are essentially procedural. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 55 L. Ed. 2d 460, 98 S. Ct. 1197 (1978). In what the Third Circuit describes as the "heart and soul" of the statute, Morris County Trust for Historic Preserv'n v. Pierce, 714 F.2d 271, 275 (3d Cir. 1983), NEPA requires federal agencies to prepare "a detailed statement by the responsible official" for "every recommendation or report on proposals for legislation and other major Federal actions ...