City of Alexandria v. Slater

• Decision Date: 17 December 1999
• Docket Number: No. 99-5220,99-5220
• Citation: 198 F.3d 862
• Parties: (D.C. Cir. 1999) City of Alexandria, Virginia, et al.,Appellees v. Rodney E. Slater, Secretary, U.S. Department of Transportation, et al.,Appellants
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 862

198 F.3d 862 (D.C. Cir. 1999)

City of Alexandria, Virginia, et al.,Appellees v. Rodney E. Slater, Secretary, U.S. Department of Transportation, et al.,Appellants

No. 99-5220

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 26, 1999

Decided December 17, 1999

Appeal from the United States District Court for the District of Columbia(98cv00251)

Daria J. Zane, Assistant United States Attorney, argued the cause for appellants. With her on the briefs were Wilma A. Lewis, United States Attorney, R. Craig Lawrence, Assistant United States Attorney, Nancy E. McFadden, General Counsel, United States Department of Transportation, and Paul M. Geier, Assistant General Counsel.

Barry M. Hartman and Lance W. High were on the brief for amicus curiae Greater Washington Board of Trade.

Richard L. Walton, Jr., Senior Assistant Attorney General, State of Virginia, was on the brief for amicus curiae the Commonwealth of Virginia, Virginia Department of Transportation.

Kathleen A. Morse and Carolyn Moses Frank, Assistant Attorneys General, State of Maryland, were on the brief for amicus curiae Maryland State Highway Administration.

S. William Livingston, Jr., argued the cause for appellees. With him on the brief were Mitchell F. Dolin and Thomas L. Cubbage, III. John N. Hanson entered an appearance.

Hope M. Babcock, Thomas R. Lotterman, Paul W. Edmondson, and Elizabeth S. Merritt were on the joint brief for amicus curiae the National Trust for Historic Preservation in the United States, Preservation Alliance of Virginia, and Sierra Club.

Before: Silberman, Williams, and Randolph, Circuit Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge:

Appellees challenged the Federal Highway Administration's approval of plans to replace the Woodrow Wilson Memorial Bridge. The district court held that the Administration violated the National Environmental Policy Act and the National Historic Preservation Act. We reverse.

I.

The Woodrow Wilson Memorial Bridge is a microcosm of the Washington, D.C. metropolitan area's traffic congestion problems. Built in 1961, the six-lane structure carries the Capital Beltway over the Potomac River, connecting the City of Alexandria, Virginia, to Prince George's County, Maryland; originally intended to serve as a Washington bypass for interstate travelers, it became increasingly used by commuters as the region's population grew. As a result, traffic volume on the Bridge has increased to over 160,000 vehicles per day, more than twice the capacity the structure was designed to accommodate; congestion is particularly acute during peak hours, where the configuration of an eight-lane Beltway feeding into a six-lane bridge--in addition to steadily increasing local traffic in the surrounding communities--has produced one of the worst rush-hour "bottlenecks" in the region. These congestion problems have created harmful collateral consequences: the heavy volume on the Bridge has contributed to an accident rate nearly double that of similar facilities in the region, and has expedited the deterioration of the Bridge's structure to the point where the Bridge is projected to be structurally unsound by 2004.

Efforts to replace the Bridge began over ten years ago, when the Federal Highway Administration, in cooperation with its coordinate agencies in Maryland, Virginia, and the District of Columbia, began examining alternative approaches to solving the Bridge's capacity and structural problems. The Administration began to study the potential effects of rebuilding the Bridge on the surrounding communities early in the project's development, commissioning surveys of historic and archaeological resources in areas likely to be affected by the projects. The Commission also started the process, mandated by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. (1994), of considering the environmental impacts of alternative project designs. In 1991 the Administration issued a draft Environmental Impact Statement (EIS) for public comment; this statement suggested and compared five proposals for replacing the Bridge. Each of the alternatives in the draft proposed expanding the river crossing from six to twelve lanes, and included a similar expansion of the five-mile Beltway corridor approaching the river crossing from the east and west.¹

Reaction to the draft was less than enthusiastic; the Administration was criticized for assessing inadequately the environmental and cultural impacts of its proposal, and for failing to coordinate its work with that of interested governmental agencies and community groups. By its own admission concerned that "a region-wide consensus about the new bridge had not been reached," the Administration went back to the drawing board. In response the Administration organized a "Coordination Committee" composed of elected and administrative officials from the region to enhance community and intergovernmental cooperation. The Committee revisited the entire process of developing alternative Bridge designs, ultimately soliciting and considering over 350 proposals from interested individuals and organizations, and increased the Administration's public outreach efforts in affected communities. In the meantime, pursuant to its obligations under section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f (1985 & Supp.), and section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303 (1997), the Administration continued to assess the project's potential impacts on historic, archaeological, and cultural resources in the area.

In 1997, the Administration issued its Final Environmental Impact Statement (the "Final EIS"). The Final EIS gave detailed consideration to eight alternative proposals (seven "build" alternatives and a baseline "no build" alternative), comparing them on a range of criteria including vehicle capacity, cost, and extent of environmental impacts. As was the case with the draft each of the "build" alternatives scrutinized in the Final EIS had twelve lanes; each alternative also had a lane configuration that separated local and express traffic, and contained a lane dedicated for High Occupancy Vehicle usage. The critical difference among the proposed alternatives was the type of river crossing; the seven "build" alternatives included a range of tunnel and bridge designs. Although the Final EIS discussed narrower eight and ten-lane options, it did not afford them full treatment as formal "alternatives" because the Administration concluded, on the basis of traffic projections, that narrower river crossings would fall short of meeting the Bridge's long term traffic needs. Among the eight options the Administration designated a "Preferred Alternative" that would replace the Bridge with two parallel six-lane drawbridges (one drawbridge for eastbound and one for westbound traffic) clearing the Potomac's navigational channel by seventy feet at their highest points. The Administration also included in the Final EIS a sixty-page "Section 4(f) Evaluation" identifying and offering plans to mitigate the effects of the Preferred Alternative and all other build alternatives on public parks, wildlife refuges, and historic sites.

After a brief comment period the Administration approved the Preferred Alternative in a Record of Decision and submitted, as is required by section 106 of the National Historic Preservation Act, a Memorandum of Agreement evidencing the Administration's cooperation with state historic preservation officers in identifying historic sites that might be impacted. The Memorandum identified and offered mitigation plans for several historic sites, but it also noted that the Administration had not yet identified properties to be used for "construction staging, dredge disposal, wetland mitigation, or other ancillary activities" during the period of the Bridge's construction.

The City of Alexandria filed an action in the district court challenging the Administration's approval of the project, and the district court permitted three Alexandria-based organizations that opposed the Administration's proposed alternative (collectively the "Alexandria Coalition" or "appellees") to intervene as plaintiffs. The City alleged that the Administration had violated a host of regulatory provisions, including the National Environmental Policy Act, section 106 of the National Historic Preservation Act, and section 4(f) of the Department of Transportation Act.² After both sides had filed for summary judgment the City of Alexandria settled its claim with the Administration, leaving the Alexandria Coalition as the only remaining plaintiffs.

The district court ruled in favor of the Alexandria Coalition. See City of Alexandria v. Slater, 46 F. Supp. 2d 35 (D.D.C. 1999). The court concluded that the Administration had violated NEPA by not affording detailed consideration to a ten-lane river crossing as a "reasonable alternative" in the Final EIS, and that the Final EIS' treatment of the temporary environmental impact of the construction phase of the project was too cursory to satisfy NEPA. Relying upon our recent decision in Corridor H Alternatives, Inc. v. Slater, 166 F.3d 368 (D.C. Cir. 1999), the district court also determined that the Administration had violated section 106's requirement that an agency "take into account" the effects of a proposed project on protected historic properties by postponing the identification of the sites that were to be used for construction-related "ancillary activities." Because an agency must complete the section 106 identification process before it can satisfy section 4(f)'s requirement that an agency use "all possible planning to minimize harm" to historic sites, the court concluded that the Administration had necessarily failed to comply with section 4(f) as well. The district court remanded the project to the Administration; the Administration...