Corridor H Alternatives, Inc. v. Slater

• Citation: 166 F.3d 368,334 U.S. App. D.C. 240
• Decision Date: 09 February 1999
• Docket Number: No. 97-5301,97-5301
• Parties: , 29 Envtl. L. Rep. 20,581 CORRIDOR H ALTERNATIVES, INCORPORATED, et al., Appellants, v. Rodney SLATER, Secretary, U.S. Department of Transportation, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 368

166 F.3d 368

334 U.S.App.D.C. 240, 29 Envtl. L. Rep. 20,581

CORRIDOR H ALTERNATIVES, INCORPORATED, et al., Appellants, v. Rodney SLATER, Secretary, U.S. Department of Transportation et al., Appellees.

No. 97-5301.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 23, 1998.

Decided Feb. 9, 1999.

Appeal from the United States District Court for the District of Columbia (No. 96cv02622).

Andrea C. Ferster, with whom Thomas R. Michael was on the briefs, argued the cause for appellants.

Elizabeth S. Merritt, with whom Paul W. Edmundston, Laura S. Nelson, Thomas S. Martin and Thomas B. Wiener were on the brief, argued the cause for amici curiae National Trust for Historic Preservation, et al.

Sheila D. Jones, with whom Lois J. Schiffer, Assistant Attorney General, U.S. Department of Justice, John A. Bryson, and Marta Hoilman, Attorneys, Brett J. Gainer, Attorney-Advisor, Federal Highway Administration, and William G. Malley were on the brief, argued the cause for appellees. Greer S. Goldman, Attorney, U.S. Department of Justice, and Eliot R. Cutler entered appearances.

Before WALD and TATEL, Circuit Judges, and BUCKLEY, Senior Circuit Judge.

Opinion for the court filed by Senior Circuit Judge BUCKLEY.

BUCKLEY, Senior Judge:

Corridor H Alternatives, Inc., and several other environmental and public interest groups (collectively, "CHA") challenge a highway project in West Virginia that had been developed and approved by various federal and state agencies. Specifically, they assert (1) that the Federal Highway Administration violated the Department of Transportation Act by failing to identify all the historic sites it was charged with protecting prior to its decision approving the route of the proposed highway and by erroneously concluding that the highway would not "use" two of the sites it did identify; and (2) that the agency violated the National Environmental Policy Act by failing to give adequate consideration to the improvement of existing roads as an alternative to the construction of the new highway.

The district court held that the agencies had complied with both statutes. Because we conclude that the Federal Highway Administration was required to identify the historic sites that might be at risk before it issued its decision approving the highway's proposed route, we affirm in part and reverse in part with instructions to the district court to remand the matter to the Administration.

I. BACKGROUND

Congress enacted the Appalachian Regional Development Act of 1965, 40 U.S.C. app. §§ 1 et seq. (1994), in order to stimulate economic development in Appalachia by providing the "basic facilities" that were believed essential for the region's growth. These facilities were to include an "Appalachian development highway system" and a supporting network of local access roads. See id. §§ 2(a), 201(a).

Congress assigned responsibility for planning the new system to the Appalachian Regional Commission, which is composed of representatives of the Federal Government and the participating States. Id. § 101(a). The Commission was directed to designate "general corridor locations and termini of the development highways." Id. § 201(b). Pursuant to this authority, the Commission approved a plan for a 13-state regional highway system that called for the establishment of 23 corridors, each of which would contain a highway that would permit anticipated traffic to proceed in safety between major termini at an average speed of 50 miles per hour, commensurate with the terrain. See Joint Appendix ("J.A.") at 289, 486.

The Commission did not map the corridors; it merely identified their terminal points. The task of determining their exact routes was left to the Federal Highway Administration ("FHWA" or "Administration") and the affected states. In the case of Corridor H, which is the subject of this litigation, the Commission merely established that it was to extend from Interstate 79 ("I-79") near Weston, West Virginia, eastward to Interstate 81 ("I-81") near Strasburg, Virginia. J.A. at 455.

Between 1982 and 1994, a 40-mile section of the new Corridor H highway was built from its I-79 terminus to a point just west of Elkins, West Virginia. In 1996 the State of Virginia decided to withdraw from the project, with the result that the eastern terminus is now located in West Virginia just west of its border with Virginia. The present plan calls for the building of approximately 100 more miles.

Federally funded highway projects must comply with a number of statutory requirements. Those relevant here are section 106 of the National Historic Preservation Act, codified at 16 U.S.C. § 470f (1994) ("section 106"); section 4(f) of the Department of Transportation Act, codified at 49 U.S.C. § 303 (1994) ("section 4(f)"); and the environmental impact analysis mandated by the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (1994) ("NEPA").

Section 106 of the National Historic Preservation Act provides that before a federal agency may authorize the expenditure of funds for a federal or federally assisted undertaking, it must first consider the effects of such an undertaking on "any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register." 16 U.S.C. § 470f.

The Advisory Council on Historic Preservation regulations implementing section 106 establish three steps that an agency must take in order to comply with section 106. First, the agency must identify the properties that are listed or eligible for listing in the National Register. 36 C.F.R. § 800.4 (1998). Next, it must evaluate the effects of the proposed undertaking on those properties. Id. § 800.5. Finally, if the agency determines that the project would have an adverse effect on a historic property, it must consider measures to mitigate the potential damage. Id.

Section 4(f) of the Department of Transportation Act states that the Secretary of Transportation

may approve a transportation program or project ... requiring the use of ... land of an historic site of national, State, or local significance ... 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 ... historic site resulting from the use.

49 U.S.C. § 303(c). The Secretary has delegated this responsibility to the FHWA. 49 C.F.R. § 1.45(4) (1997). The FHWA's regulations implementing section 4(f) identify the historic sites that are subject to the section as "all properties on or eligible for the National Register of Historic Places." 23 C.F.R. § 771.135(e) (1998). Because the historic properties protected by section 106 are similarly defined, it follows that the agency must complete its section 106 determinations before it can comply with section 4(f).

The National Environmental Policy Act requires that an environmental impact statement ("EIS") be prepared for any "major Federal action[ ] significantly affecting the quality of the human environment." 42 U.S.C. § 4332(C). The EIS must include, among other things,

a detailed statement ... on--

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, [and]

(iii) alternatives to the proposed action....

Id. In a case requiring an EIS, the agency must prepare a "concise public record of decision" that identifies all the alternatives it has considered and describes all the factors it has taken into account in reaching its decision. 40 C.F.R. § 1505.2 (1998).

The U.S. Department of Transportation, the FHWA, and the West Virginia Department of Transportation ("WVDOT") (collectively, "the agencies") began planning for the Corridor H project in the late 1970's. They produced a draft environmental impact statement in 1981 but suspended work on the project until 1990. They then decided to proceed with the environmental review in two stages, each of which resulted in the issuance of a draft EIS.

The first of these, the Corridor Selection Draft EIS ("CSDEIS"), was issued by WVDOT in 1992. It was concerned with the demarcation of the actual 2,000-foot-wide route that Corridor H would take from Elkins, West Virginia, to its eastern terminus, which was then located on I-81 in Virginia. In conducting this review, WVDOT considered five alternatives, including: the construction of a new four-lane highway (the "Build Alternative"), improvements of existing two-lane roads (the "Improved Roadway Alternative"), and the self-described "No Build Alternative." It concluded that only the Build Alternative and the No Build Alternative merited more detailed evaluation because the Improved Roadway Alternative would not be able to achieve the project's speed and safety objectives. J.A. 292.

The second study, the Alignment Selection Draft EIS ("ASDEIS"), was completed two years later, in 1994. Its purpose was twofold: to evaluate the environmental impact of numerous 200- to 250-foot-wide "alignments" of the highway itself, i.e., the actual ground within Corridor H that the proposed four-lane highway would occupy, and to reexamine the Improved Roadway Alternative. WVDOT issued its Final EIS ("FEIS") on April 8, 1996, establishing the boundaries of Corridor H and reaffirming its decision to proceed with the four-lane Build Alternative.

The FEIS adopted a "Programmatic Agreement," earlier entered into by the FHWA and the relevant historic preservation officials, which established the procedures that would be followed by the FHWA in complying with the requirements of section 106. The Programmatic Agreement divided Corridor H into 14 segments or sections and required the FHWA to identify the historic properties in each of them in the sequence set forth in the agreement, to assess the project's impact on the properties, and to "utilize all feasible, prudent and practicable measures...