Save Barton Creek Ass'n v. Federal Highway Admin. (FHWA), 91-8036

• Decision Date: 17 January 1992
• Docket Number: No. 91-8036,91-8036
• Citation: 950 F.2d 1129
• Parties: , 22 Envtl. L. Rep. 20,529 SAVE BARTON CREEK ASSOCIATION, We Care Austin and Austin Crossroads, Plaintiffs-Appellees Cross-Appellants, v. FEDERAL HIGHWAY ADMINISTRATION (FHWA) and Texas State Department of Highways and Public Transportation, Defendants-Appellants Cross-Appellees, and MoPac South Transportation Corporation, Intervenor-Defendant Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1129

950 F.2d 1129

34 ERC 1655, 22 Envtl. L. Rep. 20,529

SAVE BARTON CREEK ASSOCIATION, We Care Austin and Austin Crossroads, Plaintiffs-Appellees Cross-Appellants, v. FEDERAL HIGHWAY ADMINISTRATION (FHWA) and Texas State Department of Highways and Public Transportation Defendants-Appellants Cross-Appellees and MoPac South Transportation Corporation, Intervenor-Defendant Appellant-Cross-Appellee.

No. 91-8036.

United States Court of Appeals, Fifth Circuit.

Jan. 17, 1992.

Rehearing and Rehearing En Banc

Denied Feb. 24, 1992.

Rodney D. Parrott, Marianne S. Dwight, Asst. Attys. Gen., Dan Morales, Atty. Gen., Austin, Tex., for Texas State Dept. of Highways, etc.

Jacques B. Gelin, David C. Shilton, U.S. Dept. of Justice, David F. Shuey, Dept. of Justice, Land & Natural Resources Div., General Litigation Section, Washington, D.C., for Federal Highway Admin. (FHWA).

J.B. Ruhl, Fulbright & Jaworski, Austin, Tex., for MoPac.

David O. Frederick, William G. Bunch, Austin, Tex., for plaintiffs-appellees cross-appellant.

Appeals from the United States District Court for the Western District of Texas.

Before CLARK, Chief Judge, WILLIAMS, and BARKSDALE, Circuit Judges. ^*

PER CURIAM:

Plaintiffs/appellees ¹, Save Barton Creek Association, We Care Austin, and Austin Crossroads, three local environmental organizations, brought suit against the defendants/appellants, the Federal Highway Administration ("FHWA"), the Texas State Department of Highways and Public Transportation ("TDH"), and the MoPac South Transportation Corporation ("Corporation"), seeking to enjoin the construction of two highway projects in Austin, Texas. These projects are MoPac South and Segment 3 of a proposed Austin Outer Loop. The district court enjoined the appellants from all construction and development activities on MoPac South south of Hannon Lane and on the entire Austin Outer Loop pending their compliance with the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-61 (1982). We reverse.

I. FACTS AND PRIOR PROCEEDINGS

MoPac South and Segment 3 are two roadways planned and now partially constructed in a portion of southwest Travis County, Texas. MoPac South is a 5.5 mile southern extension of a north-south freeway MoPac, located in West Austin. It was conceived in the early 1980's as a major radial roadway to serve South Austin. Also conceived in the early 1980's, the Austin Outer Loop is a proposed 82 mile circumferential freeway which in planning has been divided into five segments. The segment which is to be built in the southwest corridor of the Austin Outer Loop has been designated by the TDH as Segment 3, the second roadway project in dispute. Segment 3 is the portion of the contemplated Austin Outer Loop which will intersect with the southern terminus of MoPac South. Both of these highways, MoPac South and Segment 3, traverse the Austin-area Edwards Aquifer, a sole source drinking water aquifer in southern Travis and northern Hays Counties, southwest of Austin. ²

The appellees instituted this suit for declaratory and injunctive relief requesting a declaration that the Austin Outer Loop, including Segment 3, and MoPac South were "major Federal actions" for the purposes of NEPA and required the preparation of a regional environmental impact statement ("EIS") prior to their construction. The appellees alleged that the FHWA was in violation of NEPA for allowing continued construction of MoPac South when it was tied in with the rest of MoPac, which was built with federal aid, and also in planning for the construction of the Austin Outer Loop. Furthermore, specifically with regard to the Austin Outer Loop, they asserted that the FHWA allowed the project's unlawful segmentation. Additionally, the appellees argued that the state defendants, the TDH and the Corporation, were acting to frustrate federal environmental law by characterizing the most environmentally sensitive segments of these highway projects as state projects exempt from NEPA. The appellees also contended that the failure to prepare a regional environmental impact statement ("EIS") under NEPA on the Austin Outer Loop would result in irreversible contamination of the Edwards Aquifer, causing a significant hazard to public health.

After conducting a fact intensive bench trial ³, the district court concluded that commencing construction of Segment 3 without NEPA compliance was improper because the Austin Outer Loop was a proposal for "major Federal action." Thus, Segment 3 could not be segmented from the overall proposal and funded separately prior to completion of the environmental assessment process on the entire Austin Outer Loop pursuant to NEPA. With regard to MoPac South, the district court held that since it had been planned for construction as a part of Segment 3, itself an integral part of a federal project, MoPac South "must necessarily be an integral part of a federal project and subject to NEPA." Furthermore, MoPac South was subject to NEPA "because the project is an extension of a federal project (MoPac), a connection of three federal projects (MoPac, U.S. 290, and the Austin Outer Loop), and it lacks substantial independent utility." Additionally, intimating but in no way describing or making findings about some surreptitious actions on the part of the appellants, the district court alluded to "the questionable nature of the TDH's activity" as well as to the fact that "the evidence does not reveal any measurable good will on the State's part."

In addressing the extent of the injunctive relief, the district court acknowledged the futility of enjoining the construction of MoPac South from U.S. 290 to Slaughter Lane, which was 96% complete, and the construction of MoPac South from Slaughter Lane to Hannon Lane, which was 42% complete. All construction on the Austin Outer Loop and MoPac South south of Hannon Lane, however, was enjoined until the completion of the procedures provided under NEPA for "major Federal action." The district court conceded it could not determine the requisite environmental studies needed to be conducted on the projects. The court simply asserted that it trusted that the federal law could define the requirements of the NEPA EIS. Though it recognized that it lacked the high level of technical expertise to determine whether a regional EIS was necessary, the court did order TDH to prepare an EIS on Segment 3. The district court did not disturb in any way an earlier finding it had made that there was no evidence with respect to environmental injury resulting from construction of Segment 3 and MoPac South. ⁴

II. DISCUSSION

The appellants advance three basic contentions. First, they urge that the appellees' claims are not ripe for judicial review because there has been no "final" administrative action that would permit construction of the proposed highway projects using federal funds. Second, they assert that the TDH has been solely responsible for the planning, design, and construction of both MoPac South and Segment 3 of the Austin Outer Loop. Since state-funded projects are not controlled by FHWA and in no way obligate the federal government to any present or future acts, the highway projects cannot be labeled as "major Federal actions" for the purposes of NEPA. Third, the appellants concede that case law and the FHWA regulations do establish that under certain circumstances, segmentation of federal-aid highway projects can be improper under NEPA. According to the appellants, however, in applying these principles to these projects it is apparent that neither MoPac South nor Segment 3 of the Austin Outer Loop has been improperly segmented from a federal-aid highway project.

A. Ripeness

According to the appellants, this case cannot be ripe for judicial decision absent a final action by the FHWA. Judicial review of federal agency action is governed by the requirement of Section 10(c) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 704 (1982), which provides that only "final agency action" is subject to judicial review. See, e.g., Lujan v. National Wildlife Fed'n, --- U.S. ----, 110 S.Ct. 3177, 3185, 111 L.Ed.2d 695 (1990). The appellants contend that even if one assumes for argument's sake that the district court could have found that NEPA does apply in this case, the FHWA has taken no final action upon which to base APA review as to either MoPac South or any part of a proposed Austin Outer Loop. The FHWA has not approved a draft EIS for public circulation, a final EIS, a location, or funding for any part of either MoPac South or Segment 3 of the Austin Outer Loop.

We recognize that the requirement of finality has been applied in actions seeking to enjoin on environmental grounds the construction of highways. The appellants point to several cases in which the rule requiring finality and the related and overlapping doctrine of ripeness have been exercised to conclude that court intervention would not only be a waste of judicial resources, but also improper interference in the administrative process. Ash Creek Mining Co. v. Lujan, 934 F.2d 240, 243 (10th Cir.1991) (finding Ash Creek's action unripe for judicial review because it has failed to show that the "Department [of Interior]'s proposed exchange of the Ash Creek Coal Leasing Tract for the Whitney Benefits Tract constitutes 'final agency action' ") (emphasis in original); Environmental Defense Fund, Inc. v. Johnson, 629 F.2d 239, 241 (2d Cir.1980) (concluding that the Corps of Engineers' issuance of a recommendation report of further study of the Hudson River Skimming Project not yet under construction could not be characterized as a "final agency action"); Eastern Connecticut Citizens Action Group v. Dole, 638 F.Supp. 1297, 1299-1300 (D.Conn.), aff'd per curiam, 804 F.2d 804 (2d Cir.1986), cert. denied, 481 U.S. 1068, 107 S.Ct. 2460, 95 L.Ed.2d 869 (1987) (finding the claims not ripe for judicial review because, inter alia, no construction had begun...