United States District Court, N.D. Illinois
March 30, 2004.
CITIZENS ADVOCATE TEAM, and HOWARD and NEVINA ZARBOCK Plaintiff's; NORMAN MINETA, Secretary, United States Department of Transportation; FEDERAL HIGHWAY ADMINISTRATION; MARY PETERS, Director, Federal Highway Administration; NORMAN STONER, Division Administrator, Federal Highway Administration; ILLINOIS DEPARTMENT OF TRANSPORTATION; KIRK BROWN, Secretary, Illinois Department of Transportation; KANE COUNTY DIVISION OF TRANSPORTATION; JEFFREY DAILEY, Director, Kane County Division of Transportation; KANE COUNTY BOARD, Defendants
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
OPINION AND ORDER
The Parties have filed Cross-Motions for Summary Judgment pursuant to
Federal Rule of Civil Procedure 56. For the following reasons,
Plaintiff's' motion is denied; Defendants' motions are granted.
On August 21, 2002, Plaintiff's, Citizens Advocate Team ("CAT"), Howard
Zarbock and Nevina Zarbock (collectively "Plaintiff's"), filed a
Complaint under the Administrative Procedure Act ("APA"),
5 U.S.C. § 702, against various governmental Defendants in connection with the
proposed construction of three new bridges across the Fox River in Kane
County, Illinois. In essence, Plaintiff's allege that the Final
Environmental Impact Statement prepared by Defendants, with respect to
this project, fails to meet the requirements of both the National
Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321-47, and Section
4(f) of the Federal Transportation Act, 49 U.S.C. § 303(c).
Plaintiff's Complaint seeks, inter alia: (1) a declaratory judgment that
the Federal Highway Administration's approval of the project was unlawful
and (2) an injunction prohibiting Defendants from taking any further
action toward the construction of the project until they have complied
with all of the requirements of NEPA and Section 4(f) of the
There are numerous parties to this litigation. Plaintiff CAT is a
regional conservation organization which seeks to protect the public
trust and is organized as a non-profit corporation under the laws of the
State of Illinois. Plaintiff's Howard and Nevina Zarbock are members of
CAT and residents of Kane County, Illinois. The Zarbocks allege that they
own property located adjacent to one of the proposed construction sites.
The named Defendants are the United States Department of Transportation
("USDOT"); Norman Mineta, in his official capacity as Secretary of USDOT;
the Federal Highway Administration ("FHWA"); Mary Peters, in her official
capacity as the Director of FHWA; Norman Stoner, in his official capacity
as Division Administrator of FHWA; the Illinois Department of
Transportation ("IDOT"); Kirk Brown, in his official capacity as
Secretary of IDOT; the Kane County Division of Transportation
("KDOT"); Jeffrey Dailey, in his official capacity as Director of
KDOT; and the Kane County Board (collectively "Defendants").
In 1989, to relieve traffic congestion on existing bridges, KDOT
initiated procedures to develop and construct alternative bridge
crossings over the Fox River. In February 1990, the Fox River Bridge
Advisory Committee ("Advisory Committee") was formed consisting of
representatives from townships, municipalities and counties located near
the Fox River. The Advisory Committee was charged with reducing the
myriad of bridge proposals made within the prior ten year period, thereby
allowing for a reasonable number of site and engineer feasibility studies
to be conducted. In April 1991, the Chicago Area Transportation Study
published two studies: (1) the 1990 Kane County Transportation Study
("Transportation Study) and (2) the 1990 Fox River Bridge
Traffic Study ("Traffic Study"). After evaluating the Traffic Study,
the Advisory Committee selected four sites for further investigation. The
Advisory Committee then directed KDOT to conduct a site engineering
feasibility study for each of the four sites. KDOT hired Alfred Benesch
& Company to conduct these studies. In 1993, Alfred Beneshch &
Company published the Feasibility Studies of Four New Bridges
Crossing the Fox River ("Feasibility Studies").
After reviewing the Transportation Study, the Traffic Study and the
Feasibility Studies, the FHWA determined that under NEPA, the
development of one Environmental Impact Statement ("EIS") was necessary
for evaluating environmental impacts arising out of the proposed Fox
River Bridge crossings. FHWA's determination that the projects were
based on several factors, including that the common goal was to
provide for projected significant increases in east-west traffic volumes
across the Fox River. These increases were due to residential expansion
into western Kane County and economic growth in eastern DuPage
County. Upon making this determination, FHWA directed KDOT to
evaluate twelve roadway-bridge corridors as part of the EIS for the
bridge project. KDOT eventually reduced their evaluation from twelve
corridors to five.
On November 1, 2001, Defendants issued the Final Environmental Impact
Statement and Section 4(f) Evaluation ("Final EIS"). The Final EIS
divided the analysis of the five proposed corridors into three
regions-North, Central and South. Of the five proposed corridors, the
Final EIS recommended the construction of three. At issue in this case is
the corridor recommended for construction in the North Region, defined as
bounded by McHenry County on the North and Interstate 90 on the south.
This project is commonly referred to as the Bolz Road corridor
(hereinafter "The Bolz Bridge Project").*fn2
On May 13, 2002, the Division Administrator of the FHWA issued its
Record of Decision ("ROD") approving the Final EIS. The ROD states that
the "build alternatives" for the three bridge crossings recommended in
the EIS: (1) best satisfied the purpose and need developed for the study;
(2) posed the least impact to the natural and human environment; (3) had
been selected based on processes in compliance with NEPA and other
applicable requirements; and (4) remained eligible for Federal Highway
funding. As a result, FHWA determined that Kane County, as project
sponsor, could advance each crossing through the project development
On August 21, 2002, Plaintiff's filed this lawsuit challenging the
FHWA's decision to issue the ROD and the sufficiency of the Final EIS.
All parties have filed cross-motions for summary judgment, which are now
before the court.
A. Summary Judgment
Summary judgment is permissible when "there is no genuine issue as to
any material fact and . . . the moving party is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c). The non-moving patty cannot rest
on the pleadings alone, but must identify specific facts, see
Cornfield v. Consolidated High Sch. Dist. No. 230. 991 F.2d 1316,
1320 (7th Cir. 1993), that raise more than a mere scintilla of evidence
to show a genuine triable issue of material fact. See Murphy v. ITT
Technical Services. Inc., 176 F.3d 934, 936 (7th Cir. 1999). In
deciding a motion for summary judgment, the court can only consider
evidence that would be admissible at trial under the Federal Rules of
Evidence. See Bombard v. Fort Wayne Newspapers. Inc., 92 F.3d 560,
562 (7th Cir. 1996). The court views the record and all reasonable
inferences drawn therefrom in the light most favorable to the party
opposing the motion. Fed.R.Civ.P. 56(c); see also Perdomo v.
Browner. 67 F.3d 140, 144 (7th Cir. 1995). "In the light most
favorable" simply means that summary judgment is not appropriate if the
court must make "a choice of inferences." See United States v.
Diebold. Inc., 369 U.S. 654, 655 (1962); see also First Nat'l
Bank of Arizona v. Cities Service Co., 391 U.S. 253, 280 (1968);
Wolf v. Buss (America) Inc., 77 F.3d 914, 922 (7th Cir. 1996).
The choice between reasonable inferences from facts is a jury function.
See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 255 (1986).
In this case, there are no genuine issues of material fact presented.
The FHWA's decision to issue the ROD was based on a voluminous
administrative record which contains the
EIS and the Section 4(f) evaluation of impacts arising out of the
construction of the proposed bridge projects. The parties do not dispute
the nature of the documents in the administrative record. The parties
only dispute whether the FHWA's decision to issue the ROD complies with
the standards set forth under the APA. Therefore, the standard of review
is that provided by the APA.
B. Standard of Review under the Administrative Procedures Act
Review of an agency action under NEPA and the Federal Transportation
Act is governed by the APA. Highway J Citizens Group v. Mineta,
349 F.3d 938, 952 (7th Cir. 2003). Under the APA, the court will set
aside the agency action only if it is "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law."
5 U.S.C. § 706(2)(A). Although the overall standard is narrow in
scope, it still requires the court to conduct a "searching and careful"
inquiry. Highway J Citizens Group, 349 F.3d at 952 (citations omitted).
To determine whether the agency action falls within this standard, the
court "must consider `whether the decision was based on consideration of
the relevant factors and whether there has been clear error of
judgment.'" Indiana Forest Alliance. Inc. v. United States Forest
Service, 325 F.3d 851, 858-59 (7th Cir. 2003) (quoting Marsh v.
Oregon Natural Resources Council, 490 U.S. 360, 378 (1989)). "If an
agency considers the proper factors and makes a factual determination on
whether the environmental impacts are significant or not, that decision
implicates substantial agency expertise and is entitled to deference."
Indiana Forest Alliance, 325 F.3d at 859. This deferential
standard requires that the court not substitute its judgment for that of
the agency. Id.: Heartwood. Inc. v. United States Forest
Service, 230 F.3d 947, 953 (7th Cir. 2000), As long as the "federal
agency has heard all of the objections to a plan and considered all of
the sensible options before it, the agency has fulfilled its duty."
Simmons v. U.S. Army Corps. Of Engineers,
120 F.3d 664, 667 (7th Cir. 1997). In other words, in applying the
arbitrary and capricious standard under the APA, the court's only
obligation is to ensure that the agency has taken a "`hard look' at the
environmental consequences." Highway Citizens Group, 349 F.3d
at 953 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21
In this case, Plaintiff's' argue that the FHWA's decision to issue the
ROD was arbitrary and capricious because it was based on an inadequate
Final EIS. Plaintiff's contend that the Final EJS is insufficient for
several reasons. Specifically, Plaintiff's argue that the Final EIS: (1)
fails to address the consequences of growth-inducing and traffic-inducing
impacts associated with the Bolz Bridge Project; (2) fails to measure the
impact of the proposed bridges upon projected ozone and carbon monoxide
levels; (3) does not support the dismissal of the socioeconomic effect of
the Bolz Bridge project on the neighboring lower-income areas; (4) does
not consider a sufficient range of alternatives to the Bolz Bridge
Project; and (5) does not justify the use of property protected by
Section 4(f) of the Transportation Act.*fn3 First, the court will
address Plaintiff's' claims under NEPA. It will then address Plaintiff's'
claims under the Section 4(f) Transportation Act.
C. National Environmental Policy Act
NEPA establishes a "broad national commitment to protecting and
promoting the environment." Highway J Citizens Group, 349 F.3d
at 953 (citing Robertson v. Methow Valley Citizens Counsil,
490 U.S. 332, 349 (1989)). Rather than mandating particular results, NEPA
"simply prescribes the necessary process" federal agencies must
follow when evaluating the environmental consequences of a proposed
project. See id. This process acts as a means of safeguarding
against environmental harms. See Davis v. Mineta,
302 F.3d 1104, 1115 (10th Cir. 2002). As long as "the adverse environmental
effects of a proposed action are adequately identified and evaluated,"
NEPA does not prohibit the agency from deciding that other values
outweigh the environmental costs. Highway J Citizens Group,
349 F.3d at 953(quoting Robertson, 490 U.S. at 349).
NEPA is administered by the Council on Environmental Quality ("CEQ").
See 42 U.S.C. § 4342. The CEQ promulgates regulations
related to NEPA which are binding on federal agencies. See
42 U.S.C. § 4344(3); 40 C.F.R, §§ 1501-08; see also
Heartwood, 230 F.3d at 949. All federal agencies must adopt their
own procedures to supplement the CEQ regulations and publish them in the
Federal Register. See Rhodes v. Johnson, 153 F.3d 785, 777-78
(7th Cir. 1998). Prior to publication, the agency must consult with the
CEQ to ensure that its procedures are in conformity with NEPA and the CEQ
regulations. See § 40 C.F.R. § 1507.3(a).
NEPA requires an agency to prepare an EIS whenever it determines that
the proposed action is a "major Federal action" which significantly
affects the quality of the human environment. See
42 U.S.C. § 4332(2)(C), The EIS itself is a "detailed analysis and study
conducted to determine if, or the extent to which, a particular agency
action will impact the environment." Heartwood, 230 F.3d at
949. NEPA requires that the EIS "[r]igorously explore and objectively
evaluate all reasonable alternatives" to the proposed action included in
the detailed study. See 40 C.F.R. § 1502.14(a). For those
alternatives that are eliminated from the detailed study, NEPA requires a
brief discussion containing the reason for the elimination. See
In addition to evaluating all reasonable alternatives within the EIS,
NEPA also requires federal agencies to consider and discuss the
environmental consequences of a particular action. 40 C.F.R. § 1502.16.
This includes a discussion of both the direct and indirect
effects the proposed project will have on the environment. See id.
Indirect effects are the reasonably foreseeable effects caused by the
action which appear later in time or further in distance. See
40 C.F.R. § 1508.8(b). They may include "growth inducing effects and
other effects related to induced changes in the; pattern of land use,
population density or growth rate, and related effects on air and water
and other natural systems, including ecosystems." See id.
Conclusory statements that growth will occur with or without the proposed
project, by themselves, are insufficient; agencies must provide adequate
discussions of growth-inducing impacts. Davis v. Mineta,
302 F.3d 1104, 1122-23 (10th Cir. 2002). The extent of these discussions,
however, is determined by the overall level of significance the agency
places on the impacts. See Highway J Citizens Group, 349 F.3d
at 960. This is commonly referred to as the rule of reason approach.
See id. Ultimately, to determine the adequacy of the EIS with
regard to these impacts, the court "must examine the administrative
record, as a whole, to determine whether the [Agency] made a reasonable,
good faith, objective presentation of those impacts sufficient to foster
public participation and informed decision making." Colorado
Environmental Coalition v. Dombeck, 185 F.3d 1162, 1177 (10th Cir.
1. Growth and Traffic Inducing Impacts
Plaintiff's first contend that the Final EIS fails to provide a
detailed assessment of growth and traffic inducing impacts as required
under NEPA. Specifically, Plaintiff's argue that the Final EIS "reveals
no analysis of whether the projected traffic impacts or population
impacts took into account the potential growth in the area induced by
construction of the Bolz Bridge
Project." See Pls. Mot. For Summ. J., at 7-8. Plaintiff's
further contend that the Final EIS contains only conclusory statements
which indicate that growth will occur regardless of whether the Bolz
Bridge Project is constructed. See id. at 9. Without offering
any evidence of negative potential impacts, Plaintiff's conclude that the
Final EIS, on its face, does not comply with NEPA's mandate; therefore
the FHWA's decision to issue the ROD was arbitrary and capricious.
The court is not persuaded by Plaintiff's' argument. Although the Final
EIS contains only a limited discussion of the projected traffic and
population increases associated with the construction of the Bolz Bridge
Project, the FHWA's decision to issue the ROD was not arbitrary and
capricious in light of the minor role these growth-inducing impacts were
determined to have on the surrounding area. To comply with NEPA's
mandate, an Agency must provide an adequate discussion of growth-inducing
impacts in the EIS. See Davis, 302 F.3d at 1123. "A conclusory
statement that growth will increase, with or without the project, or that
development is inevitable, is insufficient. . . ." Id. (citing
Laguna Greenbelt. Inc. v. Unites States Dep't of Transp., 42 F.3d 517,
526 (9th Cir. 1994)). Where the growth-inducing impacts or effects
are determined to be minor, however, the agency is not required to
quantify all possible effects provided it has reasonably explained why
such a quantification is not necessary or feasible. See City of Los
Angeles v. Federal Aviation Administration, 138 F.3d 806, 808 (9th
As Plaintiff's indicate, the Final EIS does not contain a detailed
analysis of the growth-inducing impacts associated with the construction
of the Bolz Bridge Project. However, in this instance, such an analysis
is unnecessary because the projected impacts at issue are consistent with
the overall purpose and need for the project, which focuses on relieving
in Kane County and enhancing development along the Bolz Road
corridor. Additionally, these objectives are also consistent with those
of the overall regional bridge project In terms of land use and
transportation issues, the Final EIS identifies three objectives for the
regional bridge project: (1) to enhance Kane County's transportation
network by reducing traffic congestion and providing alternate and more
direct routes of travel; (2) to serve efficient land use through
efficient access to central business districts, public services, and
employment and commercial centers; and (3) to serve proposed land use
inperformance with Kane County's 2020 Land Resource Management Plan.
When addressing growth-inducing impacts in light of these issues, the
Final EIS states:
Improved accessibility across the Fox River and
the associated projected traffic increases will
enhance the planned development potential of the
undeveloped parcels of the Bolz Road Corridor.
Growth in these areas is consistent with the
policies of local governmental units as reflected
in their Comprehensive Plans and Zoning Ordinances
(see Section 18.104.22.168).
FHWA 8609. Additionally, when issuing the ROD, the FHWA declared:
[The Bolz Bridge] alternative satisfies the
objectives of the Purpose and Need of this
project. It reduces congestion on the existing
Kane County transportation network by providing
alternate and more direct crossings of the Fox
River and is compatible with County and local land
use plans, while not causing excessive impacts on
the human and natural environment,
Thus, the FHWA concluded that the growth-inducing impacts associated
with the Bolz Bridge Project were consistent with the overall purpose of
the proposed project. When analyzed within the context of the entire
administrative record, see Colorado Environmental Coalition,
185 F.3d at 1176, it is clear that the Agency concluded that the
growth-inducing impacts from the Bolz Bridge project were insignificant.
Satisfied with the studies conducted on the issue, the FHWA determined
that there was no basis to quantity all possible traffic and population
inducing effects. See City of Los Angeles, 138 F.3d at
808 (asserting that agencies are not required to quantify minor
growth-inducing effects); see also Seattle Cmty. Council Fed'n v.
FAA, 961 F.2d 829, 835-36 (holding that plans designed to handle
existing traffic with greater efficiency are not designed to induce
growth). This was a reasoned determination that the court will not
second-guess. See Colorado Environmental Coalition, 185 F.3d at
1176 (stating that the court cannot question the wisdom of the agency's
decision or its conclusion regarding the magnitude of the impacts);
see also Citizens Against Burlington. Inc. v. Busey, 938 F.2d
at 190, 201 (D.C. Cir. 1991) (holding that courts must defer to an
agency's informed discretion).
2. Air Quality
Similarly, without alluding to evidence of any adverse impacts,
Plaintiff's next argue that the air quality analysis in the Final EIS
does not comply with NEPA standards. Essentially, Plaintiff's contend
that the discussions on ozone producing vehicle emissions and carbon
monoxide levels do not take into account the potential for increased
traffic spurred by the induced growth from the new bridges. However, as
the court has discussed, Defendants determined that the projected
growth-inducing impacts on traffic associated with the construction of
the Bolz Bridge Project were, at most, minor. See supra, Part III.C.l. As
such, contrary to Plaintiff's' contention, there is no need for
Defendants to include a detailed analysis on air quality in relation to
these impacts. See City of Los Angeles, 138 F.3d at 808.
Additionally, within the Final EIS Defendants did analyze the impacts
the proposed project would have on ozone production and carbon monoxide
levels. See FHWA 8594-95; 8392-95. As required by law, these impacts were
measured at specific locations within particular regions located within
the Chicago Metropolitan Area. It is not the function of the court to
determine whether analysis is accurate or whether Defendants used the
methodology available, See Highway J Citizens Group,
349 F.3d 960 (citing that the court only reviews the sufficiency of the
agency's consideration of the issues, not its substantive judgment);
see also Sierra Club v. Marita, 46 F.3d 606, 621 (7th Cir.
1995) (stating that agencies are entitled to use their own methodology
provided it is rational). The court is only to determine whether
Defendants thoroughly considered the impact the proposed project would
have on these air quality levels. See Laguna Greenbelt. Inc.,
42 F.3d at 526.
After analyzing the issues, the Final EIS concludes that the overall
project is in compliance with all state and federal air quality statutes.
See FHWA 8594-95. Because one of the objectives of the proposed
project is to relieve traffic congestion within the region, adverse
impacts on air quality were determined to be positive, rather than
negative. Thus, based on the numerous studies conducted over a period
spanning more than ten years, Defendants concluded that the adverse
impacts on air quality were not significant. See FHWA 8536.
Applying the rule of reason approach, the analysis presented in the Final
EIS was reasonably thorough under the circumstances and NEPA has been
satisfied. See Highway J Citizens Group, 349 F.3d 960; see
also City: of Los Angeles, 138 F.3d at 808. Therefore, the FHWA's
decision approving the Final EIS, with respect to air quality, was not
arbitrary or capricious. See Citizens Against Burlington, 938
F.2d at 201.
3. Socioeconomic Impacts
Plaintiff's also argue that the Final EIS does not adequately discuss
the socioeconomic impacts associated with the construction of the Bolz
Bridge project. Essentially, Plaintiff's make two arguments on the issue.
First, Plaintiff's contend that Defendants did not seriously consider the
impact the project would have on the Fox View Apartment Complex ("Fox
View"), which is located to the south the proposed alignment. Fox View is
subsidized with Section 8 federal
funding. Second, Plaintiff's contend that the Final EIS ignores the
fact that the proposed corridor acts as a barrier between lower-income
and higher-income neighborhoods.
The impacts the Bolz Bridge Project will have on Fox View are discussed
in Sections 22.214.171.124 and 126.96.36.199 of the Final EIS. See FHWA
8406-07, 8615. Section 188.8.131.52 states that Fox View "is located
approximately a distance of 700 feet from the preferred alignment." FHWA
8615. It also declares that Fox View is located in census tract #8503.01.
See FHWA 8406. Because the Bolz Road alignment at issue is
predominately located within census tract #8501.00, which has a lower
percentage of persons below the poverty level than census tracts
##8503.01 and 8502.01, the Final EIS explains that the corridor passes to
the north of the lower-income census tracts. See FHWA 8615.
Based on this analysis, the report concludes that "there will not be any
disproportionate impacts on Fox View Apartments." See FHWA
Additionally, the Final EIS states:
The preferred Bolz Road alignment was realigned
further north and away from adjacent census tract
#8502.01, as a result of public input from
residents during the public hearing, as well as
coordination with local leaders. This realignment
will provide continued direct access to a
playground and park area for the residents of
census tracts #8502.01. The local population will
also experience no loss in roadway access.
FHWA 8615. Furthermore, in response to comments on the issue, the ROD
The proposed road does not affect residents in
lower income/minority concentration areas; the
roadway curves away from these areas to the
maximum extent possible given right-of-way
constraints to limit proximity impacts to
residents. . . . While the Fox View apartments are
cited as a subsidized housing facility to be
affected, the closest unit is 165 meters (550
feet) from the roadway and will suffer no adverse
Because Defendants did not perceive the proposed corridor to have any
impacts on Fox View, they were not required to analyze the issue further
in the Final EIS. When issuing the ROD, the FHWA thoroughly considered
the issue in relation to its significance. See Highway J Citizens
Group, 349 F.3d at 960 (adopting the rule of reason approach which
considers the extent of the agency's analysis viewed in proportion to the
size of the perceived impact). Thus, the FHWA seriously considered the
issue and reached a reasoned decision. This is all that NEPA requires.
See Citizens Against Burlington, 938 F.2d at 201 (holding that
courts must defer to an agency's informed discretion).
Additionally, as to whether the Final EIS ignores the fact that the
proposed corridor acts as a barrier between lower-income and
higher-income neighborhoods, Plaintiff's fail to show that the issue was
raised or how this situation creates an adverse impact. NEPA does not
require federal agencies to consider an undefined medley of imponderables
and every possible impact from a project. Without adequately placing
Defendants on notice of the issue, Plaintiff's argument is waived.
See Vermont Yankee Nuclear Power Corporation v. Consumers Power
Corporation, 435 U.S. 519, 553-54 (1978) (comments must alert the
agency to the particular mistake made and why it is significant).
4. Analysis of Alternatives
With respect to alternatives, Plaintiff's argue that the Final EIS
fails for two reasons. First, they argue that the Final EIS does not
seriously consider the "No-Build" alternative as required under NEPA.
Second, Plaintiff's assert that the Final EIS gives "short shrift" to the
analysis of alternative corridors proposed for the North Region, thereby
also failing to satisfy the requirements of NEPA. See Pls.'
Mot. for Summ. J., at 12. The court will address each of Plaintiff's'
"NEPA requires that agencies `study, develop, and describe appropriate
alternatives' to major federal projects." Highway J Citizens
Group, 349 F.3d at 960 (quoting 42 U.S.C. § 4332(2)(C)(iii)
& 2(E)). In considering alternatives, the agency must sequentially
address three questions: (1) what is the purpose of the proposed project;
(2) given that purpose, what are reasonable alternatives to the project;
and (3) to what extent it should explore each particular reasonable
alternative? See id. (citing Simmons, 120 F.3d at
668). Requiring agencies to analyze the issue in this fashion ensures a
reasonable alternatives analysis considered in light of the purpose and
need for a particular project. To determine whether the EIS properly
resolves these three questions, the court must take a deferential view of
the agency's decision. See Simmons, 120 F.3d at 669; see
also Citizens Against Burlington, 938 F.2d at 195-96. Ultimately,
the court only determines whether the agency "followed required
procedures, evaluated relevant factors and reached a reasoned decision."
Id. (internal quotations and citations omitted).
In this case, the court is not persuaded by Plaintiff's' argument
citing the inadequacy of the Final EIS's "No-Build" analysis. NEPA
requires an agency to include an alternative of "no-action" in its
analysis of alternatives. See 40 C.F.R. § 1502.14(d). Here,
the "No-Build Alternative" analysis is presented in Section 3.1.1 of the
Final EIS. FHWA 8536-37. Analyzing this alternative in light of the
purpose and need of the project, Section 3.1.1 concludes:
[T]he No-Build Alternative does not address the
need for this project. However, it is presented
with the awareness that any proposed construction
alternative will result in impacts to the man-made
and natural environments, and may face regulatory
obstacles as a result. The No-Build Alternative is
therefore presented as a benchmark by which to
judge the Build alternative and determine if the
benefits of the Build Alternative outweigh its
impacts and regulatory requirements.
FHWA 8537. As the Final EIS explains, the No-Build Alternative is
inconsistent with the purpose and need of the proposed project. Section
1.2.1 of the Final EIS clearly identifies that the regional purpose and
need for the project "is to provide transportation improvements which
would increase access across the Fox River in the North Region of Kane
County . . . [and] to provide access to proposed land uses in the
Northern region which are compatible with Kane County's 2020 Land
Resource Management Plan and local land use plans." FHWA 8341, 8346. This
is supported in the record by, among other things, the Transportation
Study and the Traffic Study. By its very nature, the No-Build Alternative
cannot satisfy these objectives. Finding that this is adequately
explained in the Final EIS, the court concludes that no further analysis
is needed. Thus, after considering the "No-Build Alternative" section of
the Final EIS along with the entire Administrative Record, the FHWA
followed the proper procedures and reached a reasonable decision.
See Colorado Environmental Coalition, 185 F.3d at 1176;
see also Simmons, 120 F.3d at 669.
Also, the court is not persuaded by Plaintiff's* argument citing the
insufficiency of the analysis of reasonable alternatives for the North
Region. NEPA states that an EIS "should present the environmental impacts
of the proposal and the alternatives in comparative form, thus sharply
defining the issues and providing a clear basis for choice among options
by the decision maker and the public." 40 C.F.R. § 1502.14. In
defining the scope of this analysis, NEPA mandates that agencies
"[r]igorously explore and objectively evaluate all reasonable
alternatives, and for alternatives which were eliminated from detailed
study, briefly discuss the reasons for their having been eliminated."
40 C.F.R. § 1502.14(a).
The alternatives for the North Region were discussed in Section 1.2.2
of the Final EIS. See, FHWA 8341. As this section indicates,
aside from the Bolz Road corridor, three others were
considered, including corridors along County Line Road, Miller
Road/Lake Marian Road and Boncosky Road, Section 1.2.2 states:
Only the Bolz Road corridor survived the screening
process of the Corridor Analysis Document. Based
on the Corridor Analysis Document, Kane County
concluded that County Line Road, Miller Road/Lake
Marian Road and Boncosky Road were unacceptable
because of adverse impacts to the human and
natural environment that were obvious and
Id. Although brief, this section contains an adequate
discussion as to why the three other alternatives for the North Region
were eliminated from the detailed study. See 40 C.F.R. § 1502.14(a).
Mainly, this was because of adverse impacts to the human and
natural environment which are outlined in the Corridor Analysis Document.
See FHWA 8341. In other words, these other three alternatives
were not prudent and feasible under the circumstances.
Nevertheless, Plaintiff's argue that the Corridor Analysis
Document is flawed because it does not adequately compare the
destruction of Section 4(f) properties between the four alternatives.
However, the Corridor Analysis Document does not require such a
comparison. The Corridor Analysis Document seeks only to
identify major issues associated with the construction of each
corridor. This allows agencies to determine which alternatives
are reasonable candidates for further study and should be included in the
EIS. See Concerned Citizens Alliance. Inc. v. Slater,
176 F.3d 686, 706 (3d. Cir. 1999).
Here, the Corridor Analysis Document recommends that three corridors in
the North Region, excluding the Bolz Road corridor, be dismissed for
various reasons. See FHWA 2208-12. For example, it states that
County Line Road would displace 40-60 homes and pose serious engineering
problems due to the existing grades, FHWA 2209. It also states that the
Miller Road/Lake Marion Road and Boncosky Road corridors pose adverse
impacts on Section 4(f) properties which are unacceptable to Kane County.
See FHWA 2210-12. These include, inter
alia, impacts on wetlands that cannot be mitigated and the use
of Public Recreation Areas. Additionally, the Corridor Analysis
Document states that these alternatives present possible contact
with hazardous waste sites, potential engineering problems due to current
grades and other socioeconomic factors. See id. After analyzing
the potential impacts of each alternative, the Corridor Analysis
Document concludes that there are no prudent and feasible alignments
which could avoid or mitigate these adverse impacts. See id.
Conversely, the Corridor Analysis Document determines that the
Bolz Bridge Project is not likely to present any major issues under
Section 4(f) or NEPA, Seg FHWA 2208-12. As a result, it recommends that
only the Bolz Road corridor advance for further study, thereby declaring
that the other three alternatives in the North Region are not prudent or
feasible given the purpose and need for the project. See id.
Based on this information, the FHWA was satisfied that the Bolz Road
corridor, with its proposed alignments, was the only reasonable
alternative for the North Region. This is all that NEPA requires.
See Concerned Citizens Alliance, 176 F.3d at 706 (concluding
that NEPA allows agencies to exclude from further study alternatives that
were examined and rejected for not meeting the project's goals).
Additionally, Plaintiff's have not offered any evidence suggesting that
these alternatives, or any others, could better fulfill the purpose of
the project with causing less harm to the environment. See Morongo
Band of Mission Indians v. Federal Aviation Administration,
161 F.3d 569, 576 (9th Cir. 1998) (indicating that the burden is on the party
challenging the agency action to offer feasible alternatives when not
satisfied with the alternatives chosen for study). Therefore, after
reviewing the analysis of reasonable alternatives in the Final EIS, which
references the analysis contained in the Corridor Analysis
court finds that the discussion is sufficient under the
circumstances, and the FHWA's decision to issue the ROD was not arbitrary
D. Section 4(f) of the Transportation Act
Section 4(f) of the Transportation Act requires that the FHWA take
"certain measures if it determines that a transportation project will
`use' natural and historic resources protected by the statute," City
of Bridgeton v. FAA, 212 F.3d 448, 460 (8th Cir. 2002) (quoting
49 U.S.C. § 303(c)). The statute prohibits the Secretary of
Transportation from approving any project requiring the use of a public
park, recreation area, or any significant historic site unless "(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
[protected property]." 49 U.S.C. § 303(c). By the very existence of
the statute, the protection of parkland is to be given "paramount
importance." Citizens to Preserve Overton Park. Inc. v. Volpe,
401 U.S. 402, 412-13 (1971).
When reviewing whether an agency's decision to use Section 4(f)
property is appropriate, the court must ask "whether a responsible,
well-informed public official could think the decision to build through
[the Section 4(f) property] `prudent.'" Eagle Foundation. Inc. v.
Dole, 813 F.2d 798, 804 (7th Cir. 1987) (emphasis in original). The
Secretary's decision for deciding what is prudent "calls for judgment,
for balancing, for practical settlement of disputes, on which reasonable
people will disagree." Id. Like NEPA, review of an agency
action under Section 4(f) of the Transportation Act is deferential, and
the Secretary's decision will only be set aside if it is arbitrary and
capricious. Citizens to Preserve Overton Park, 401 U.S. at
414-16; Eagle Foundation, 813 F.2d at 804.
Plaintiff's make three arguments with regard to Section 4(f)
properties. First, they argue that the Final EIS Section 4(f) analysis is
flawed because it is limited to looking at variations of
only the Bolz Road corridor, thereby excluding possible variations of
the other three corridors proposed for the North Region. However, as the
court has already discussed, these alternatives were dismissed early in
the administrative process because they did not meet the purpose and need
for the project, or because they had unique environmental problems of
their own. See supra, Part III.C.4. Section 4(f)
provides that the agency take a hard look when deciding whether to use
public parkland for a highway project. However, it does not require that
the Secretary thoroughly exhaust every possible alternative, particularly
when an alternative is declared imprudent or infeasible for various
reasons. See Concerned Citizens Alliance, 176 F.3d at 706.
Further, Plaintiff's do not suggest how these other three alternatives
may be more practical. They only claim that by not analyzing the issues
in the Final EIS, the Secretary failed to take a hard look at possible
alternative to using Section 4(f) land. This is not enough to challenge
an agency's choice of reasonable alternatives. See Morongo
Band, 161 F.3d at 576 (indicating that the burden is on the party
challenging the agency action to offer feasible alternatives when not
satisfied with the alternatives chosen for study). Therefore, this
challenge cannot stand.
Second, with regard to Section 4(f), Plaintiff's argue that the Final
EIS fails to provide a detailed assessment of alternative alignments that
were considered for the Bolz Road corridor itself. Specifically,
Plaintiff's argue that the discussions on alternative alignments to avoid
both the Hickory Hills Park and the Perry Lathrop House (a property
eligible for inclusion on the National Register of Historic Places) are
insufficient. However, this argument also fails because the proposed
alignments, which would avoid these Section 4(f) properties, were
thoroughly considered and determined not to be prudent or feasible.
With respect to Hickory Hills Park, the ROD states:
An alignment shift to the south to avoid the park
would displace a school and approximately 60
residences. To accomplish an alignment shift to
the north . . . would require the use of
substandard design in the form of sharp curves and
minimal tangents. A substandard design would
compromise safety. . . .
FHWA 10275. This summary was compiled from the analysis presented in
the Administrative Record, including the Final EIS. Additionally, these
impacts, along with numerous mitigation measures, were discussed and
analyzed with great detail in the Final EIS. See FHWA 8744-45;
8749-50. Thus, before making its decision, the FHWA considered the
displacement of a school and approximately 60 homes, the perceived danger
of the proposed alignments, and the mitigation efforts of parties
involved before making its decision. As such, the court finds that the
FHWA took a hard look at the issue and reached a prudent decision.
See Eagle Foundation, Inc., 813 F.2d at 807 (stating that
"[t]he Secretary's obligation is to look at enough alternatives to make
possible an informed judgment about whether one is likely to be feasible
and prudent."). Such action was not arbitrary and capricious. See
id. at 808.
Finally, Plaintiff's argument that the Section 4(f) analysis does not
give proper weight to the effect the Bolz Bridge Project would have on
the Perry Lathrop House also fails. Much like the Section 4(f) analysis
for Hickory Hills Park, the Final EIS considers three different
alignments to avoid using the Perry Lathrop House property, as well as
numerous potential mitigation measures. See FHWA 8749-50. After
thoroughly examining the issue, the FHWA issued the ROD, satisfied that
these alternatives were neither prudent nor feasible. See Eagle
Foundation, 813 F.2d at 807, Because Plaintiff's do not contend that
any other alternatives should have been considered, aside from those
which were previously dismissed, this claim also fails. See Morongo
Band 161 F.3d at 576.