Buckingham Tp. v. Wykle
| Citation | 157 F.Supp.2d 457 |
| Decision Date | 22 June 2001 |
| Docket Number | No. CIV. A. 99-621.,CIV. A. 99-621. |
| Parties | BUCKINGHAM TOWNSHIP, v. Hon. Ken WYKLE, Administrator, Federal Highway Administration, David Lawton, Chief of Planning, Region 3, Federal Highway Administration, and Bradley L. Mallory, Secretary for the Department of Transportation, Commonwealth of Pennsylvania. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Robert J. Sugarman, Daniel R. Vice, Sugarman & Associates, Philadelphia, PA, for plaintiff.
James G. Sheehan, Annetta Foster Givhan, U.S. Attorney's Office, Philadelphia, PA, Brett Gainer, U.S. Dept. Trans., Baltimore, MD, for defendants.
Albert J. Cepparulo, New Hope, PA, Thomas Alan Linzey, Community Environmental Legal Defense Fund, Shippensburg, PA, Thomas J. Profy, III, Begley, Carlin & Mandio, Langhorne, PA, for movants.
Annetta Foster Givhan, United States Attorneys Office, Philadelphia, PA, John M. Hrubovcak, Pennsylvania Dept. of Transportation, Office of Chief Counsel, Harrisburg, PA, for intervenor-defendant.
This case arises out of the proposed improvement of U.S. Route 202, Section 700 ("Section 700") and development of an interchange at Route 202 and State Route 313. Plaintiff is concerned that peaceful and scenic Buckingham Township in Bucks County will be spoiled if defendants are allowed to proceed as planned.
As a federal aid project, the Section 700 project is subject to various federal statutory requirements. In a 97 page amended complaint, plaintiff alleges that defendants used falsified data and violated virtually every applicable statutory requirement in planning and proceeding with the highway project. Plaintiff specifically claims that defendants violated requirements imposed by the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701 et seq.; the Federal-Aid Highway Act ("FAHA"), 23 U.S.C. §§ 109(a)(2) & (h), 134, 135; the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq.; the Clean Air Act ("CAA"), 42 U.S.C. §§ 7506; and, the National Historic Preservation Act ("NHPA"), 16 U.S.C. § 470f & 470h-2(f).1
Plaintiff also asserts state law claims under statutes governing the duties of PennDOT, 71 P.S. § 512(a)(7) & (b)(23), requiring PennDOT to assist local officials, 36 P.S. §§ 670-901, and adopting an interstate compact on regional transportation, 73 P.S. § 701.2
Presently before the court are defendants' motion for summary judgment and plaintiff's motion for summary judgment. The administrative record is voluminous and quite technical in nature. It consists of thousands of documents which consume twenty-one boxes. The parties have also presented substantial submissions. Additionally, briefs were filed on behalf of seventeen amici.3
Summary judgment generally is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Under the APA, the court bases its decision on a review of the administrative record. See 5 U.S.C. § 706; Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985). There are thus generally no genuine issues of material fact in an APA case. See Clairton Sportsmen's Club v. Pennsylvania Turnpike Comm'n, 882 F.Supp. 455, 463 (W.D.Pa.1995).
As a practical matter, "when a plaintiff who has no right to a trial de novo brings an action to review an administrative record which is before the reviewing court, the case is ripe for summary disposition, for whether the order is supported by sufficient evidence, under the applicable statutory standard, or is otherwise legally assailable, involve matters of law." Bank of Commerce of Laredo v. City Nat'l Bank of Laredo, 484 F.2d 284, 289 (5th Cir.1973); Citizens to Preserve Overton Park, Inc. v. Volpe, 432 F.2d 1307, 1310 (6th Cir.1970) (), rev'd on other grounds, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). See also Lukens Steel Co. v. Kreps, 477 F.Supp. 444, 446 n. 3 (E.D.Pa.1979) ()
Section 700 of U.S. Route 202 extends from just south of Pennsylvania State Route 63 in Montgomery Township, Montgomery County, to the Pennsylvania State Route 611 Bypass in Doylestown Township, Bucks County. This section of highway is approximately nine miles in length and covers 9,100 acres. It crosses two counties and eight municipalities.4
In response to requests from local and county planners, the Delaware Valley Regional Planning Commission ("DVRPC") recommended in a November 1989 report that studies be commenced to address mobility deficiencies and projected growth with respect to Section 700.5 In the November 1989 report, the DVRPC concluded that the "new alignment corridor" which had been recommended in a 1968 PennDOT study regarding this section of highway was still viable through lands mostly reserved for the highway by local township actions.6
In 1990, PennDOT initiated more detailed environmental and preliminary engineering studies for Section 700. PennDOT advertised and held four public meetings between February 7, 1991 and December 13, 1994 concerning studies of improvements to Section 700, prior to initiating the formal environmental process.
Pursuant to NEPA and its attendant FHWA regulations, the Federal Highway Administration ("FHWA"), as lead agency, approved a draft Environmental Impact Statement ("DEIS") for circulation on July 10, 1996.7 The DEIS was circulated to the public, and its availability was published in the Federal Register on August 9, 1996. See 61 Fed.Reg. 41607-41608.
On September 12, 1996, PennDOT held an open hearing at which members of the public were provided an opportunity to comment on the DEIS. Plaintiff's representatives were among the numerous participants. PennDOT also held a meeting directly with members of plaintiff's Board of Supervisors on September 19, 1996.
After seeking and receiving an extension of time to submit comments, plaintiff submitted extensive comments on the DEIS on October 11, 1996. In response to plaintiff's comments, additional traffic analysis was completed to verify the accuracy of the prior analysis.
The final report of the additional traffic analysis was documented in Supplement No. 4 which was finalized in October 1997 and to which the final Environmental Impact Statement ("FEIS") expressly referred. This was available for public review and comment. Supplement No. 4 was provided to plaintiff on October 10, 1997.8
Plaintiff learned during this period that PennDOT was also making plans to develop a highway interchange at Pools Corner in Buckingham Township. PennDOT represents that this is independent from the Section 700 project. Plaintiff suggests that it is a remedial measure to cope with traffic which the Section 700 improvements would discharge into Buckingham Township.
On October 8, 1997, PennDOT approved the FEIS for circulation. On October 16, 1997, David Lawton, the FHWA Region 3 Director of Planning and Program Development, approved the FEIS for circulation. Hundreds of copies of the FEIS were mailed to commentators, including plaintiff. On November 14, 1997, notice of availability of the FEIS was published in the Federal Register. See 62 Fed.Reg. 61111-61112. By letter of January 29, 1998 to the FHWA Division Administrator, the Regional Deputy Director of the Office of Environmental Programs advised that "EPA believes that the highway construction and operation should not provide additional insult to the environment" and stated that "[w]e applaud PADOT and FHWA for [their] efforts" to protect the environment.
On August 27, 1998, the FHWA Division Administrator issued a Record of Decision ("ROD") formally approving the project. The FHWA filed the Administrative Record ("the Record") for the Section 700 project and the project at Pools Corner which the FHWA had also approved following environmental review.
Following initiation of this action, the court on November 19, 1999 ordered defendants to make the Record whole by "filing and providing to plaintiff all documentation, correspondence, set-ups, assumptions, formulae, co-efficients and other data concerning U.S. 202 Traffic Analysis for Section 700 Supplement No. 4 and DVRPC Responses to Buckingham Comments 1-4 (April 1998), all communications between the Pennsylvania Department of Transportation and the Federal Highway Administration and within the FHWA regarding the relationship between the Pool's Corner project and Section 700, and any version of Supplement No. 4 dated December 1996 which may exist." On December 17, 1999, defendants supplemented the Record pursuant to that order.
Pointing to statements of two DVRPC employees that certain set-ups and assumptions had been discarded by the DVRPC, plaintiff suggested that the Record was still incomplete. Defendants responded that some of the set-ups and assumptions from the traffic model used to conduct the analysis in Supplement No. 4 were not available as they existed at the time simply because the traffic model is a computer program which is constantly revised in the ordinary course of business to accommodate updated forecasting methodology, computer technology, population changes and traffic-related data.
Defendants have persistently averred that the Record as supplemented is the complete record before the FHWA at the time it filed the ROD. W. Thomas Walker of DVRPC pinpointed the data and documents sought by plaintiff in the Record.9
The court ordered defendants to produce to plaintiff the documentation,...
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