Protect Our Parks, Inc. v. Buttigieg
| Decision Date | 01 July 2022 |
| Docket Number | 21-2449 |
| Citation | 39 F.4th 389 |
| Parties | PROTECT OUR PARKS, INC., et al., Plaintiffs-Appellants, v. Pete BUTTIGIEG, Secretary of Transportation, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard Epstein, Attorney, Norwalk, CT, Catherine M. Keenan, Thomas G. Gardiner, Attorneys, Gardiner Koch Weisberg & Wrona, Chicago, IL, Michael Rachlis, Attorney, Rachlis, Duff, Adler & Peel LLC, Chicago, IL, for Plaintiffs-Appellants.
Allen M. Brabender, Attorney, Department of Justice, Environment & Natural Resources Division, Washington, DC, for Defendants-Appellees Pete Buttigieg, Secretary of the U.S. Department of Transportation, Stephanie Pollack, Acting Administrator of the Federal Highway Administration, Arlene Kocher, Division Administrator of the Federal Highway Administration, Illinois Division, Matt Fuller, Environmental Programs Engineer, Federal Highway Administration, Illinois Division, Deb Haaland, Secretary of the U.S. Department of the Interior, Shawn Benge, Deputy Director, Operations, Exercising the Delegated Authority of the Director of the National Park Service, Christine Wormuth, Secretary of the Army.
Jeffrey N. Candrian, Attorney, Department of Justice, Environment & Natural Resources Division, Denver, CO, for Defendant-Appellee Paul B. Cullberson, Commanding Officer of the Army Corps of Engineers, Chicago District.
Myriam Z. Kasper, Attorney, Office of the Corporation Counsel, Appeals Division, Chicago, IL, Elizabeth Tisher, Andrew Worseck, Attorneys, City of Chicago Law Department, Chicago, IL, for Defendant-Appellee City of Chicago.
Joseph P. Roddy, Attorney, Burke, Warren, MacKay & Serritella, P.C., Chicago, IL, for Defendant-Appellee Chicago Park District.
David H. Hoffman, Kelsey E. Annu-Essuman, Paul E. Bateman, Jr., Tacy Fletcher Flint, Rachel Hampton, Attorneys, Sidley Austin LLP, Chicago, IL, Peter R. Steenland, Jr., Attorney, Sidley Austin LLP, Washington, DC, fro Defendant-Appellee Obama Foundation.
Craig C. Martin, Matt Basil, Samuel James Murray Gamer, Attorneys, WIllkie Farr & Gallagher LLP, Chicago, IL, for Amici Curiae Civic Committee of the Commercial Club of Chicago, Chicago Urban League, Chicago Community Trust.
Kenneth L. Schmetterer, Attorney, DLA Piper LLP (US), Chicago, IL, for Amicus Curiae University of Chicago.
Randall E. Mehrberg, Gabriel Gillett, Elena M. Olivieri, Daniel J. Weiss, Attorneys, Jenner & Block LLP, Chicago, IL, for Amicus Curiae Chicagoland Museums.
Mary Eileen Cunniff Wells, Michael L. Shakman, Attorneys, Miller, Shakman Levine & Feldman LLP, Chicago, IL, for Amicus Curiae Community Representatives.
Before Wood and Hamilton, Circuit Judges.1
In 2016, after a nationwide search, the Barack Obama Foundation decided to build the Obama Presidential Center in historic Jackson Park on Chicago's South Side. The City of Chicago and the Chicago Park District embraced the plan. But a group of residents, under the banner of an organization called Protect Our Parks, Inc., vehemently opposed it. Two years ago, we dismissed Protect Our Parks' first effort to enjoin the project. Protect Our Parks, Inc. v. Chi. Park Dist. , 971 F.3d 722, 738 (7th Cir. 2020) (" Protect Our Parks I "), cert. denied sub nom. Protect Our Parks, Inc. v. City of Chicago , ––– U.S. ––––, 141 S.Ct. 2583, ––– L.Ed.2d –––– (2021). Protect Our Parks, along with several individual plaintiffs, responded with the present action against the City and the Park District (to which we refer collectively as the City), as well as various state and federal officers, arguing that environmental reviews performed by federal agencies in connection with the project were inadequate under the National Environmental Policy Act, 42 U.S.C. §§ 4331 – 47, section 106 of the National Historic Preservation Act, 54 U.S.C. § 306108, and other similar statutes.
Protect Our Parks' central theory is that these laws required the agencies to consider alternatives to the Jackson Park site in their evaluation of possible environmental harms. It correctly notes that the agencies, taking a different view of the law, did not do this. The problem with this argument is that none of the federal defendants had anything to do with the site selection—it was the City that chose Jackson Park, and the federal agencies had (and have) no authority to move the project elsewhere. Federal law does not require agencies to waste time and resources evaluating environmental effects that those agencies neither caused nor have the authority to change. See Dept. of Transp. v. Public Citizen , 541 U.S. 752, 756, 124 S.Ct. 2204, 159 L.Ed.2d 60 (2004). We thus affirm the order of the district court denying Protect Our Parks' motion for a preliminary injunction.2
In 2014, the Foundation began searching for a home for President Obama's presidential library. After evaluating several potential sites, it chose Jackson Park, a public park in the neighborhood where President Obama lived and began his career as a community organizer, law professor, and state senator. The Center will feature a museum, a public library, spaces for educational and cultural events, green space, and an archive commemorating the life and legacy of the nation's first Black President. Construction of the Obama Presidential Center (the Center) is wholly funded by the Obama Foundation.
After the Chicago City Council unanimously approved building the Center in Jackson Park, the City acquired the needed parkland from the Chicago Park District, signed a use agreement with the Foundation, and prepared to break ground. When completed, the Center will take up 19.3 acres, which amounts to about 3.5% of Jackson Park.
Although the federal government had no role in the Foundation's or Chicago's decision to house the Center in Jackson Park, the City's approval did trigger several federally mandated agency reviews. Protect Our Parks argues that these reviews were inadequate.
The U.S. Department of Transportation's Section 4(f) Review. The plans for the Center require the closure of portions of three roads within Jackson Park. To accommodate the resulting effect on traffic, the Chicago Department of Transportation has proposed using federal funding to build or improve other roads, bike paths, and pedestrian walkways in the park. To be clear, the plan to close portions of existing roads in the park did not require federal approval. See Old Town Neighborhood Ass'n Inc. v. Kauffman , 333 F.3d 732, 736 (7th Cir. 2003). What did give rise to the approval requirement was the plan to build replacement infrastructure using federal highway dollars. That brought the Federal Highway Administration (FHWA) into the picture; it was required to review the proposal under section 4(f) of the Department of Transportation Act of 1966 (codified at 49 U.S.C. § 303 ). Section 4(f) permits the Secretary of Transportation to approve transportation projects that have an impact on public parks or historic sites, so long as "(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 park ... resulting from the use." Id. § 303(c). The Center's proposal implicates four properties protected by section 4(f), including Jackson Park itself.
After a comprehensive analysis, the FHWA found that there was no feasible and prudent alternative to using section 4(f) properties for new transportation infrastructure, which was needed to substitute for the roads that would be eliminated. The agency then considered nine alternatives to determine how to minimize any negative impacts on the affected parks and historic areas. The FHWA's analysis concluded that only one alternative (Alternative 9) would meet the project's goals of accommodating traffic changes and improving pedestrian and bike access to Jackson Park. The agency then designed studies of two sub-alternatives (Sub-alternatives 9A and 9B) before concluding that 9B would cause the least damage to properties protected by section 4(f).
National Environmental Policy Act Environmental Assessment. The National Park Service and the Department of Transportation conducted a joint environmental assessment pursuant to the National Environmental Policy Act (NEPA). See 40 C.F.R. § 1501.4 (2019) (). The assessment explained that the City had decided to place the Center in Jackson Park, that the City would close portions of three local roads to accommodate the Center, and that the federal government had no say in those matters. The federal government did have a role, however, in approving the new use of the parkland and funding for new transportation infrastructure in the park (more on this later).
On that basis, the agencies assessed the environmental impact of three options: Option A, in which neither the Park Service nor the federal Department of Transportation approved the City's plan; Option B, in which only the Park Service approved it; and Option C, in which both did. The agencies prepared an exhaustive review of the direct, indirect, and cumulative effects of each option, including the potential consequences on trees, wildlife, water quality, air quality, traffic control, noise, and cultural resources. They found that Alternative C best met both agencies' goals. They also concluded that Alternative C would not have a significant impact on the environment, which meant that the agencies could move forward with only an environmental assessment, rather than a full-blown environmental impact statement. See Public Citizen , 541 U.S. at 757, 124 S.Ct. 2204.
Urban Park and Recreation Recovery Act Review. The National Park Service also conducted a review under the Urban Park and Recreation Recovery Act (UPARR Act). See 54 U.S.C. §§ 200501 –511. The UPARR Act, a grant program enacted in 1978, provided federal...
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