The opinion of the court was delivered by: CHARLES NORGLE, District Judge
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.
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 ...