Associations Working for Aurora's Residential Environment v. Colorado Dept. of Transp., 97-1418

• Decision Date: 27 July 1998
• Docket Number: No. 97-1418,97-1418
• Parties: 28 Envtl. L. Rep. 21,459, 98 CJ C.A.R. 4076 ASSOCIATIONS WORKING FOR AURORA'S RESIDENTIAL ENVIRONMENT, a non-profit corporation, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF TRANSPORTATION; Laurence Warner, Transportation Director, Region 6, Colorado Department of Transportation; Federal Highway Administration; James Daves, Acting Division Administrator of the Federal Highway Administration, Defendants-Appellees. City of Aurora, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1122

153 F.3d 1122

28 Envtl. L. Rep. 21,459, 98 CJ C.A.R. 4076

ASSOCIATIONS WORKING FOR AURORA'S RESIDENTIAL ENVIRONMENT, a non-profit corporation, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF TRANSPORTATION; Laurence Warner Transportation Director, Region 6, Colorado Department of Transportation; Federal Highway Administration; James Daves, Acting Division Administrator of the Federal Highway Administration, Defendants-Appellees City of Aurora, Amicus Curiae.

No. 97-1418.

United States Court of Appeals Tenth Circuit.

July 27, 1998.

Robert S. Ukeiley, Boulder, Colorado, for Plaintiff-Appellant.

Jeffrey C. Dobbins, Department of Justice, Washington, D.C. (Robert L. Klarquist, Department of Justice, Washington, D.C.; Lois J. Schiffer, Assistant Attorney General; Henry L. Solano, United States Attorney; and Robert D. Clark, Assistant United States Attorney, Denver, Colorado, with him on the brief) for Defendants-Appellees Federal Highway Administration and James Daves.

Gregory A. Jamieson, Assistant Attorney General, and Harry S. Morrow, First Assistant Attorney General (Gale A. Norton, Attorney General, with them on the brief), Denver, Colorado, for Defendants-Appellees Colorado Department of Transportation and Laurence Warner.

Charles H. Richardson and Teresa Kinney, Office of the City Attorney, Aurora, Colorado, filed an amicus curiae brief for City of Aurora.

Before HENRY, HOLLOWAY and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Associations Working For Aurora's Residential Environment ("AWARE"), a non-profit corporation comprised of individuals and businesses who reside in or around the Parker Road/I-225 interchange in Aurora, Colorado, appeals an order refusing to enjoin defendants from beginning construction at that interchange. Plaintiff asserts three claims on appeal: (1) defendants failed to comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370d, and its implementing regulations by allowing a private contractor with a conflict of interest to assist in the preparation of the Environmental Impact Statement ("EIS") for the proposed project; (2) defendants failed to consider structural mass transit as a reasonable alternative to construction in violation of 42 U.S.C. § 4332(C)(iii) and 40 C.F.R. § 1502.14(c); and (3) defendants failed to consider "feasible and prudent" alternatives to developing publicly owned land in violation of the Transportation Act, 49 U.S.C. § 303(c)(1). We conclude that, to the extent that the contractor operated under a conflict of interest, the Colorado Department of Transportation ("CDOT") exercised sufficient supervision to preserve the "objectivity and integrity of the NEPA process." Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations ("Forty Questions"), 46 Fed.Reg. 18,026, 18,031 (Council on Envtl. Quality 1981). We also conclude that defendants adequately considered alternatives to construction and to the use of publicly owned lands. Accordingly, we affirm.

I

The history of the construction project at issue begins in 1985, when CDOT entered into a contract with CH2M Hill (the "Contractor"), a private contractor, to identify "the short and long-term needs" for a one-mile segment of Parker Road where it meets with I-225, a major intersection in the Denver metropolitan area. Appellees' Supp.App., Ex. A, at 50,003. The contract provided that, after those needs had been identified, the Contractor was to provide "preliminary and final design plans for the selected short-term improvement concept." Id. In August 1987, the Contractor completed a feasibility study, which concluded that there were "severe congestion problems" in the target area and proposed both long- and short-term solutions to those problems. Appellant's App. at 37.

In April 1989, CDOT and the Contractor entered into a supplemental contract that authorized the Contractor to assist CDOT in refining the proposed solution and preparing an environmental assessment for the project, and to complete the preliminary engineering for the recommended improvements. In October 1991, CDOT and the Contractor entered into another supplemental contract authorizing the Contractor to perform preliminary and final design work for the Parker Road project. See Appellees' Supp.App., Ex. A, at 50,129, 50,159-61. At the time of the execution of the 1991 contract, the parties anticipated that construction would begin in late 1993 or early 1994.

In 1992, the proposed project became the subject of controversy. As a result, the I-225/Parker Road Interchange Citizens' Advisory Committee ("CAC") was established "to develop a new or modified version of corridor- /interchange improvements." Appellees' Supp.App. at A294. The membership of the CAC comprised 23 individuals, including one member of AWARE. Although not members of the CAC, representatives from CDOT and the Contractor were part of a "Project Planning Team responsible for guiding and assisting the CAC." Id. The CAC evaluated fourteen alternatives for the Parker Road corridor and ultimately proposed a majority and minority solution, both of which involved construction of highway improvements in the target area.

As a result of the CAC proposal, CDOT decided to develop an environmental impact statement for the proposed project. ¹ In January 1993, CDOT conducted a scoping meeting to discuss the preliminary design alternatives to be included in the EIS. Representatives from CDOT, the Contractor, the United States Army Corps of Engineers, the Colorado Division of Parks and Outdoor Recreation, the City of Aurora, the Regional Transportation District ("RTD"), and the Federal Highway Administration ("FHWA") attended that meeting.

On January 31, 1994, CDOT and the Contractor entered into another supplemental contract authorizing the Contractor to assist in the development of the EIS. A key dispute in this litigation is whether that supplemental contract simply added to the scope of the existing duties of the Contractor, which included final design work for the construction of improvements at Parker Road, or whether the 1994 agreement amended the scope of work to eliminate final design work pending the outcome of the EIS.

In March 1996, defendants issued a draft environmental impact statement and notice was published in the Federal Register. See 61 Fed.Reg. 10,754, 10,754 (1996). After a public hearing to receive comment on the draft EIS, the FHWA and CDOT issued the final environmental impact statement. Another hearing was held to receive public comment and explain the preferred alternative. In December 1996, defendants issued the Record of Decision ("ROD"), which approved the preferred construction alternative in the final EIS.

In January 1997, CDOT and the Contractor executed a supplemental contract authorizing the Contractor to assist in the preliminary and final design of the preferred alternative. Shortly after CDOT began soliciting bids from construction contractors, AWARE brought the present action seeking a preliminary injunction. That motion was consolidated with a trial on the merits before the district court. The district court concluded that plaintiff was not entitled to an injunction and entered final judgment on the merits in favor of defendants. It is from that order that plaintiff now appeals. ²

II

In the National Environmental Policy Act, Congress recognizes that each generation is a "trustee of the environment for succeeding generations." 42 U.S.C. § 4331(b)(1). Accordingly, NEPA mandates that federal agencies comply with certain procedures before taking actions that will affect the quality of the environment to ensure that appropriate consideration is given to the environmental impacts of those actions. See, e.g., 42 U.S.C. § 4332(2)(C) (listing the requirements for an environmental impact statement). "It is 'well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.' " Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1522 (10th Cir.1992) (quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989)). Thus, in reviewing agency decisions, it is not for the court to select what it believes to be the optimum alternative, see Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28, 100 S.Ct. 497, 62 L.Ed.2d 433 (1980) (per curiam); rather, our review is limited to whether the agency complied with the " 'action-forcing' procedures" required by NEPA to guarantee that agencies take a "hard look" at the environmental consequences of proposed actions. Robertson, 490 U.S. at 350, 109 S.Ct. 1835 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976)).

A. Conflict of Interest

When a federal agency proposes to undertake a "major action[ ] significantly affecting the quality of the human environment," NEPA requires that it prepare an environmental impact statement. 42 U.S.C. § 4332(2)(C). Under implementing regulations promulgated by the Council on Environmental Quality ("CEQ"), an agency may either prepare the EIS itself or it may select a contractor to do so. See 40 C.F.R. § 1506.5(c). If the agency chooses to have a contractor prepare the EIS, that contractor must "execute a disclosure statement ... specifying that [it has] no financial or other interest in the outcome of the project." Id. A contractor with a known conflict "should be disqualified from preparing the EIS." Forty Questions, 46 Fed.Reg. at 18,031.

Plaintiff contends that we must invalidate the EIS for the Parker Road project because the Contractor had an incentive to promote a build alternative over a non-build alternative at the time it aided in the preparation of the EIS. Specifically, it argues that the Contractor either had an enforceable contract for future work on the project, or that CDOT's unvarying practice of awarding final design contracts to the...