F I L E D
United States Court of Appeals
Tenth Circuit
JUL 27 1998
PUBLISH
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ASSOCIATIONS WORKING FOR
AURORA’S RESIDENTIAL
ENVIRONMENT, a non-profit
corporation,
Plaintiff - Appellant,
v.
COLORADO DEPARTMENT OF
TRANSPORTATION; LAURENCE
WARNER, Transportation Director,
Region 6, Colorado Department of
No. 97-1418
Transportation; FEDERAL
HIGHWAY ADMINISTRATION;
JAMES DAVES, Acting Division
Administrator of the Federal Highway
Administration,
Defendants - Appellees.
CITY OF AURORA,
Amicus Curiae.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97-N-1161)
Robert S. Ukeiley, Boulder, Colorado, for the Plaintiff - Appellant.
Jeffrey C. Dobbins, Department of Justice, Washington, D.C. (Robert L.
Klarquist, Department of Justice, Washington, D.C.; Lois J. Schiffer, Assistant
Attorney General; Henry L. Solano, United States Attorney; and Robert D. Clark,
Assistant United States Attorney, Denver, Colorado, with him on the brief) for the
Defendants - Appellees Federal Highway Administration and James Daves.
Gregory A. Jamieson, Assistant Attorney General, and Harry S. Morrow, First
Assistant Attorney General (Gale A. Norton, Attorney General, with them on the
brief), Denver, Colorado, for the Defendants - Appellees Colorado Department of
Transportation and Laurence Warner.
Charles H. Richardson and Teresa Kinney, Office of the City Attorney, Aurora,
Colorado, filed an amicus curiae brief for the City of Aurora.
Before HENRY , HOLLOWAY and LUCERO , Circuit Judges.
LUCERO , Circuit Judge.
Associations Working For Aurora’s Residential Environment (“AWARE”),
a non-profit corporation comprised of individuals and businesses who reside in or
around the Parker Road/I-225 interchange in Aurora, Colorado, appeals an order
refusing to enjoin defendants from beginning construction at that interchange.
Plaintiff asserts three claims on appeal: (1) defendants failed to comply with the
National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370d, and its
implementing regulations by allowing a private contractor with a conflict of
interest to assist in the preparation of the Environmental Impact Statement
(“EIS”) for the proposed project; (2) defendants failed to consider structural mass
transit as a reasonable alternative to construction in violation of 42 U.S.C. §
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4332(C)(iii) and 40 C.F.R. § 1502.14(c); and (3) defendants failed to consider
“feasible and prudent” alternatives to developing publicly owned land in violation
of the Transportation Act, 49 U.S.C. § 303(c)(1). We conclude that, to the extent
that the contractor operated under a conflict of interest, the Colorado Department
of Transportation (“CDOT”) exercised sufficient supervision to preserve the
“objectivity and integrity of the NEPA process.” Forty Most Asked Questions
Concerning CEQ’s National Environmental Policy Act Regulations (“Forty
Questions”), 46 Fed. Reg. 18,026, 18,031 (Council on Envtl. Quality 1981). We
also conclude that defendants adequately considered alternatives to construction
and to the use of publicly owned lands. Accordingly, we affirm.
I
The history of the construction project at issue begins in 1985, when CDOT
entered into a contract with CH2M Hill (the “Contractor”), a private contractor, to
identify “the short and long-term needs” for a one-mile segment of Parker Road
where it meets with I-225, a major intersection in the Denver metropolitan area.
Appellees’ Supp. App., Ex. A, at 50,003. The contract provided that, after those
needs had been identified, the Contractor was to provide “preliminary and final
design plans for the selected short-term improvement concept.” Id. In August
1987, the Contractor completed a feasibility study, which concluded that there
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were “severe congestion problems” in the target area and proposed both long- and
short-term solutions to those problems. Appellant’s App. at 37.
In April 1989, CDOT and the Contractor entered into a supplemental
contract that authorized the Contractor to assist CDOT in refining the proposed
solution and preparing an environmental assessment for the project, and to
complete the preliminary engineering for the recommended improvements. In
October 1991, CDOT and the Contractor entered into another supplemental
contract authorizing the Contractor to perform preliminary and final design work
for the Parker Road project. See Appellees’ Supp. App., Ex. A, at 50,129,
50,159-61. At the time of the execution of the 1991 contract, the parties
anticipated that construction would begin in late 1993 or early 1994.
In 1992, the proposed project became the subject of controversy. As a
result, the I-225/Parker Road Interchange Citizens’ Advisory Committee (“CAC”)
was established “to develop a new or modified version of corridor/interchange
improvements.” Appellees’ Supp. App. at A294. The membership of the CAC
comprised 23 individuals, including one member of AWARE. Although not
members of the CAC, representatives from CDOT and the Contractor were part of
a “Project Planning Team responsible for guiding and assisting the CAC.” Id.
The CAC evaluated fourteen alternatives for the Parker Road corridor and
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ultimately proposed a majority and minority solution, both of which involved
construction of highway improvements in the target area.
As a result of the CAC proposal, CDOT decided to develop an
environmental impact statement for the proposed project. 1
In January 1993,
CDOT conducted a scoping meeting to discuss the preliminary design alternatives
to be included in the EIS. Representatives from CDOT, the Contractor, the
United States Army Corps of Engineers, the Colorado Division of Parks and
Outdoor Recreation, the City of Aurora, the Regional Transportation District
(“RTD”), and the Federal Highway Administration (“FHWA”) attended that
meeting.
On January 31, 1994, CDOT and the Contractor entered into another
supplemental contract authorizing the Contractor to assist in the development of
the EIS. A key dispute in this litigation is whether that supplemental contract
simply added to the scope of the existing duties of the Contractor, which included
final design work for the construction of improvements at Parker Road, or
whether the 1994 agreement amended the scope of work to eliminate final design
work pending the outcome of the EIS.
1
A comprehensive, site-specific environmental impact statement is required
for “major Federal actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C).
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In March 1996, defendants issued a draft environmental impact statement
and notice was published in the Federal Register. See 61 Fed. Reg. 10,754,
10,754 (1996). After a public hearing to receive comment on the draft EIS, the
FHWA and CDOT issued the final environmental impact statement. Another
hearing was held to receive public comment and explain the preferred alternative.
In December 1996, defendants issued the Record of Decision (“ROD”), which
approved the preferred construction alternative in the final EIS.
In January 1997, CDOT and the Contractor executed a supplemental
contract authorizing the Contractor to assist in the preliminary and final design of
the preferred alternative. Shortly after CDOT began soliciting bids from
construction contractors, AWARE brought the present action seeking a
preliminary injunction. That motion was consolidated with a trial on the merits
before the district court. The district court concluded that plaintiff was not
entitled to an injunction and entered final judgment on the merits in favor of
defendants. It is from that order that plaintiff now appeals. 2
2
Although the parties have each submitted numerous materials in separate
appendices, this court has not been provided with the entire administrative record.
We therefore defer to findings of fact by the district court where the record on
appeal is insufficient for us to determine whether those findings are clearly
erroneous. See United States v. Vasquez , 985 F.2d 491, 494-95 (10th Cir. 1993);
cf. McEwan v. City of Norman , 926 F.2d 1539, 1550 (10th Cir. 1991)
(“Generally, a party may not assign error on appeal unless he . . . designates that
part of the district court proceeding relevant thereto for appellate review.”).
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II
In the National Environmental Policy Act, Congress recognizes that each
generation is a “trustee of the environment for succeeding generations.” 42
U.S.C. § 4331(b)(1). Accordingly, NEPA mandates that federal agencies comply
with certain procedures before taking actions that will affect the quality of the
environment to ensure that appropriate consideration is given to the
environmental impacts of those actions. See, e.g. , 42 U.S.C. § 4332(2)(C) (listing
the requirements for an environmental impact statement). “It is ‘well settled that
NEPA itself does not mandate particular results, but simply prescribes the
necessary process.’” Holy Cross Wilderness Fund v. Madigan , 960 F.2d 1515,
1522 (10th Cir. 1992) (quoting Robertson v. Methow Valley Citizens Council ,
490 U.S. 332, 350 (1989)). Thus, in reviewing agency decisions, it is not for the
court to select what it believes to be the optimum alternative, see Stryker’s Bay
Neighborhood Council, Inc. v. Karlen , 444 U.S. 223, 227-28 (1980) (per curiam);
rather, our review is limited to whether the agency complied with the “‘action-
forcing’ procedures” required by NEPA to guarantee that agencies take a “hard
look” at the environmental consequences of proposed actions. Robertson , 490
U.S. at 350 (quoting Kleppe v. Sierra Club , 427 U.S. 390, 410 n.21 (1976)).
A. Conflict of Interest
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When a federal agency proposes to undertake a “major action[]
significantly affecting the quality of the human environment,” NEPA requires that
it prepare an environmental impact statement. 42 U.S.C. § 4332(2)(C). Under
implementing regulations promulgated by the Council on Environmental Quality
(“CEQ”), an agency may either prepare the EIS itself or it may select a contractor
to do so. See 40 C.F.R. § 1506.5(c). If the agency chooses to have a contractor
prepare the EIS, that contractor must “execute a disclosure statement . . .
specifying that [it has] no financial or other interest in the outcome of the
project.” Id. A contractor with a known conflict “should be disqualified from
preparing the EIS.” Forty Questions, 46 Fed. Reg. at 18,031.
Plaintiff contends that we must invalidate the EIS for the Parker Road
project because the Contractor had an incentive to promote a build alternative
over a non-build alternative at the time it aided in the preparation of the EIS.
Specifically, it argues that the Contractor either had an enforceable contract for
future work on the project, or that CDOT’s unvarying practice of awarding final
design contracts to the company that prepares the EIS amounts to a conflict of
interest here because the Contractor won the contract in a non-competitive bid
process. 3 According to plaintiff, this alleged conflict is aggravated by the
3
CDOT argues that plaintiff is precluded from raising this issue on appeal
because it did not assert this argument before the district court. See Jenkins v.
(continued...)
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Contractor’s failure to execute the required conflict of interest disclosure
statement, see 40 C.F.R. § 1506.5(c), until after the final EIS had been issued.
Whether the Contractor had a conflict of interest or not rests on the
definition of “financial or other interest” under § 1506.5(c). That phrase,
however, has eluded precise definition. In 1981, the CEQ interpreted the conflict
provision “broadly to cover any known benefits other than general enhancement
of professional reputation.” Forty Questions, 46 Fed. Reg. at 18,031. 4
Even then,
however, the CEQ conceded that a contractor may “later bid in competition with
others for future work on the project” if that contractor “has no promise of future
work or other interest in the outcome of the proposal.” Id. After discovering that
many agencies had “been interpreting the conflicts provision in an overly
burdensome manner,” the CEQ instructed that, absent an agreement to perform
construction on the proposed project or actual ownership of the construction site,
3
(...continued)
Wood , 81 F.3d 988, 996 (10th Cir. 1996). We disagree. Plaintiff has consistently
argued that CDOT’s practice of awarding final design contracts to the contractor
that prepares the EIS amounts to a conflict of interest for that contractor.
Plaintiff’s suggestion on appeal that we adopt such an interpretation of §
1506.5(c) is an extension of its arguments before the district court.
Although we recognize that we may rely on the interpretive guidance
4
offered by the CEQ, the Forty Questions document is not owed the substantial
deference afforded to administrative rules that are the product of notice and
comment procedures. See Northern Crawfish Frog (Rana Areolata Circulosa) v.
Federal Highway Admin. , 858 F. Supp. 1503, 1527 n.12 (D. Kan. 1994)
(gathering cases).
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it is “doubtful that an inherent conflict of interest will exist” unless “the contract
for EIS preparation . . . contain[s] . . . incentive clauses or guarantees of any
future work on the project.” Guidance Regarding NEPA Regulations, 48 Fed.
Reg. 34,263, 34,266 (Council on Envtl. Quality 1983).
The FHWA has also struggled to define what constitutes a conflict of
interest. In a 1988 memorandum, the FHWA construed “financial or other
interest in the outcome of the project” to exclude a contract for further project
development work. Appellees’ Supp. App. at A316. In 1995, the FHWA
abandoned that interpretation and concluded that a contract for future work would
constitute a conflict under the regulations. See id. at A317. In 1996, however,
the FHWA re-adopted the 1988 guidance after receiving numerous “inquiries and
comments reflecting concerns about [the 1995] guidance.” Id. at A320.
Despite these inconsistent interpretations, we agree with the district court
that a contractor with “an agreement, enforceable promise or guarantee of future
work” has a conflict of interest under § 1506.5(c). Appellant’s App. at 65. In
this case, however, the contract between CDOT and the Contractor did not create
such an arrangement. Notwithstanding plaintiff’s argument to the contrary, the
1994 supplemental contract between CDOT and the Contractor did supplant the
scope of work provision under the 1991 contract, thereby eliminating any
contractual guarantee the Contractor had to perform final design work. Each of
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the contracts in the record contain a scope of work section that describes the
Contractor’s obligations with respect to the design work for the project. In the
1991, 1994, and 1997 contracts, that scope of work section took the form of a
checklist listing all of the required tasks involved in preliminary and final design.
Next to each task on these checklists, there is an X indicating that it is the
Contractor’s obligation, an X indicating that CDOT has retained that obligation,
an X in each column indicating a shared duty, or no mark at all. Absence of a
mark indicates that the task responsibility is not assigned by that contract. As the
parties entered supplemental contracts, each new scope of work section redefined
the parties’ obligations under the agreement. See Appellant’s App. at 107 (“[T]he
assignments associated with the work activities have changed to achieve Aurora’s
Citizen Advisory Committee objectives.”). Although the Contractor was clearly
obligated to complete both preliminary and final design work under the 1991
contract, none of the tasks related to final design are marked on the checklist in
the 1994 contract. Thus, in 1994 the Contractor’s duties did not include final
design. We therefore agree with the district court that, at the time its services
were employed to develop the EIS, the Contractor had no contractual guarantee of
future work on the project. 5
Plaintiff argues that it was improper for the district court to rely on the
5
testimony of representatives of CDOT and the Contractor about their
(continued...)
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Plaintiff also argues that, even absent an enforceable promise, the
Contractor operated under a conflict of interest because CDOT consistently
awards final design contracts to the firm that prepares the EIS and the Contractor
here received the final design contract through a non-competitive bid process. 6
The district court rejected plaintiff’s argument on two alternate grounds: (1) it
interpreted § 1506.5(c) to exclude a mere expectation of future work from the
definition of “financial or other interest,” see Appellant’s App. at 65; and (2) it
concluded that, to the extent that CDOT’s practice could give rise to a conflict,
defendants oversaw the Contractor’s work to a sufficient degree that such conflict
would not require invalidation of the EIS in this case, see id. at 70-72. Accepting
5
(...continued)
understanding of the contract’s meaning because such testimony is not part of the
administrative record and, alternatively, because Colorado applies the parol
evidence rule to contracts. We need not reach these issues because our review of
the “contract documents,” see Appellant’s Br. at 19, reveals that the 1994 scope
of work provision clearly superseded any obligations the Contractor had under
previous agreements. See Appellant’s App. at 107 (“The original supplemental
work activities assignment tasks are attached for more clarification. . . . Enclosed
is a fully executed copy of our revised scope of work with CH2M Hill for this
project.”) (emphasis added). Moreover, the materials in the administrative record
reinforce that interpretation. See id. at 198 (Contractor Disclosure Statement)
(“No final design tasks were included in the revised scope and there was no
promise on the part of CDOT for future design work.”). Thus, any error in
admitting such testimony would be harmless because it merely reiterates what the
documents state clearly on their face.
Plaintiff goes so far as to argue that “CH2M Hill must have known that if
6
the build alternative was chosen as a result of the EIS they were preparing, they
would get to perform the final design work or could sue under a theory of
detrimental reliance or promissory estoppel.” Appellant’s Br. at 20.
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for the sake of argument that the Contractor’s heightened expectation that it
would receive the contract for future design work amounted to a conflict, we
nevertheless agree with the district court’s conclusion that the degree of oversight
exercised by defendants, particularly CDOT, is sufficient to cure any defect
arising from that expectation.
The procedural requirements of NEPA and its implementing regulations are
designed to force agencies proposing to take any action that will affect the natural
environment to take a “hard look” at the environmental consequences. See
Robertson , 490 U.S. at 350. When reviewing an EIS prepared by a contractor
who has allegedly breached a requirement imposed by 40 C.F.R. § 1506.5(c), the
ultimate question for the court is thus whether the alleged breach compromised
the “‘objectivity and integrity of the NEPA process.’” Citizens Against
Burlington, Inc. v. Busey , 938 F.2d 190, 202 (D.C. Cir. 1991) (quoting Forty
Questions, 46 Fed. Reg. at 18,031); see Holy Cross , 960 F.2d at 1529 (concluding
that, although procedure followed deviated from “typical order of events” in a
NEPA case, circumstances led to conclusion that agency had taken the requisite
“hard look” at environmental factors); Northern Crawfish Frog (Rana Areolata
Circulosa) v. Federal Highway Admin. , 858 F. Supp. 1503, 1529 (D. Kan. 1994);
Sierra Club v. Marsh , 714 F. Supp. 539, 583 (D. Me. 1989); see also Brandon v.
Pierce , 725 F.2d 555, 563-64 (10th Cir. 1984) (holding prior to passage of CEQ
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regulations that contractor’s apparent conflict did not mandate invalidation of
environmental assessment so long as the agency does not substitute the
contractor’s judgment for its own), overruled on other grounds by Village of Los
Ranchos de Albuquerque v. Marsh , 956 F.2d 970, 973 (10th Cir. 1992) (en banc);
40 C.F.R. § 1500.3 (“[I]t is the [CEQ]’s intention that any trivial violation of
these regulations not give rise to any independent cause of action.”). Therefore,
when an EIS is challenged on the basis of an alleged conflict of interest that is
known to the agency, we agree with the district court “that the Court can evaluate
the oversight that the agency provided to the environmental impact statement
process as a factual matter and make a determination upholding the environmental
impact statement.” Appellant’s App. at 70. 7
The record on appeal indicates that CDOT exercised substantial supervision
over the preparation of the EIS. Even after CDOT hired the Contractor, CDOT
7
We disagree with plaintiff that the rule adopted by the district court fails
to promote the conflict of interest provision’s goal of preserving public faith in
the integrity of the NEPA process. See Appellant’s Reply Br. at 10 (citing
Guidance Regarding NEPA Regulations, 48 Fed. Reg. at 34,266). When an
agency is integrally involved in the preparation of an EIS, that involvement
diminishes the threat posed by any potential conflicts of interest because the
agency then has the opportunity to direct the analysis and supplement areas it
deems deficient. When agencies take such an active role, public perception
concerning the integrity of the process is necessarily strengthened, even when the
Contractor performs future work on the project. Indeed, recent legislation
indicates that Congress shares this view. See Transportation Equity Act for the
21st Century, Pub. L. No. 105-178, § 1205, 112 Stat. 107, 184-85 (1998).
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continued to perform all management activities and only used the Contractor’s
personnel for technical expertise or to supplement staff where there was
insufficient manpower. Consequently, CDOT managers made all major decisions
and the Contractor’s representatives reported to those managers, sometimes on a
daily basis, to receive direction. In addition, CDOT prepared, without the
Contractor’s assistance, those sections of the EIS addressing noise impacts, air
quality, wetlands, threatened and endangered species, paleontological resources,
hazardous waste materials, vegetation, botanical and wildlife habitat, and historic
resources. Finally, CDOT independently and extensively reviewed all of the
Contractor’s analyses, commented on the Contractor’s field data and written
product, noted deficiencies in the data and analysis, gave direction to the
Contractor’s work, and frequently required the Contractor to gather more facts or
perform supplemental analysis on aspects of the project. To the extent that we are
able to review the district court’s findings in the absence of the entire
administrative record, we are convinced that the degree of supervision exercised
by CDOT protected the integrity and objectivity of the EIS in this case. 8
8
Plaintiff continues to rely on the Contractor’s belated filing of the required
disclosure statement as grounds for invalidating the EIS. Although we agree with
the district court that it was a violation of the NEPA regulations to file the
disclosure statement after the final EIS had been issued, see Forty Questions, 46
Fed. Reg. at 18,031 (noting that the purpose of the conflict provision is to screen
out contractors with conflicts of interest prior to beginning the EIS), we conclude
(continued...)
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B. Reasonable Alternatives
At “the heart of the environmental impact statement” is the obligation of
the lead agency to review “all reasonable alternatives” to the proposed action. 40
C.F.R. § 1502.14. To fulfill that obligation, “federal agencies must ‘[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.’” All Indian Pueblo Council v. United States , 975 F.2d
1437, 1444 (10th Cir. 1992) (quoting 40 C.F.R. § 1502.14(a)). The agency is not
required to evaluate “the environmental consequences of alternatives it has in
good faith rejected as too remote, speculative, or . . . impractical or ineffective.”
Id. (quotation omitted). We review an EIS under a “rule of reason” standard to
determine “‘whether the statement is a good faith, objective, and reasonable
presentation of the subject areas mandated by NEPA’” and whether the discussion
of alternatives in the EIS is sufficient to permit a reasoned choice among the
options. Id. (quoting Manygoats v. Kleppe , 558 F.2d 556, 560 (10th Cir. 1977)).
8
(...continued)
that the late filing does not require reversal. The record demonstrates that the
disclosure was filed prior to the Record of Decision, that it was reviewed as soon
as it came in, and that it was found to be accurate and satisfactory. Given the
extensive supervision by CDOT and given the agency’s evaluation of the
disclosure upon its filing, we conclude it is not appropriate to invalidate the EIS
on the basis of the late disclosure. See 40 C.F.R. § 1500.3; cf. Busey , 938 F.2d at
202 (remanding to agency for execution of an appropriate disclosure statement
and, if conflict found, for agency to determine appropriate measures to be taken).
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We are not to substitute our judgment for that of the agency’s; we may only
determine whether the necessary procedures have been followed. See id. at 1445.
Plaintiff asserts that the EIS is fatally defective because it fails to consider
mass transit independently as a reasonable alternative to the construction proposal
selected by defendants. 9
We disagree. Although definition of the term reasonable
is not self-defining, see Busey , 938 F.2d at 196, it is clear an agency need not
independently evaluate alternatives it determines in good faith to be ineffective as
a means to achieving the desired ends, see All Indian Pueblo Council , 975 F.2d at
1444; North Buckhead Civic Ass’n v. Skinner , 903 F.2d 1533, 1543 (11th Cir.
1990) (holding mass transit alternative properly eliminated because it did not
resolve the congestion problem targeted by the agencies involved). Defendants’
goal for the instant project is to relieve “[e]xtreme congestion . . . in the portion
of Parker Road within the project area.” Appellees’ Supp. App., Ex. B, vol. 1, at
1-3. Having reviewed both the EIS and the ROD, as well as the portions of the
9
Plaintiff argues that defendants admit that mass transit is a reasonable
alternative in the final EIS. See Appellant’s Br. at 23. This argument is without
merit. Appendix A of the EIS, to which plaintiff points for support, identifies
“feasible” congestion management strategies, see Appellees’ Supp. App., Ex. B.,
vol. 2, at A-1 to A-2; it does not state that any such strategies would be a
reasonable solution to the targeted problem—i.e., extreme traffic congestion on
Parker Road at the I-225 interchange. See id. , vol. 1, at 1-3. Moreover,
defendants have consistently maintained the position that the EIS did not consider
mass transit as an independent alternative because it was not a reasonable solution
to the stated problem.
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administrative record submitted on appeal, we conclude defendants reasonably
rejected the mass transit alternative on the basis that it would not ameliorate the
congestion problem in the project area. See, e.g. , id. at E-2 (“Heavy congestion
in the project area will hamper use of alternative modes of travel as well as motor
vehicles, making this interchange less viable for transit in the future if
improvements are not made.”); id. at 1-18 (noting that a Light Rail Transit
alternative “would not negate the need for this proposed project”); id. , vol. 2, at
B-2 (noting that additional bus service to the surrounding neighborhoods “would
not address the significant portion of vehicles” traveling through the project
area); id. , Ex. C., at A-8, A-12 to A-13 (same). We are therefore forced to agree
with the district court that defendants “satisfied the hard look, reasonableness
standard of NEPA.” Appellant’s App. at 56. 10
10
We do not mean to suggest that plaintiff could not have supported a
NEPA claim by showing that defendants’ decision to reject mass transit was ill-
informed or contrary to the evidence in the administrative record. See North
Buckhead , 903 F.2d at 1543 (upholding EIS in which agency failed to address no
build/heavy rail alternative primarily because scientific data in the administrative
record demonstrated that existing streets would not be able to accommodate future
traffic volumes). Because plaintiff has failed to submit the entirety of the
administrative record for our review, however, we are simply unable to review its
claim that the administrative record is insufficient to support the agency’s
conclusion on that point.
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III
Plaintiff’s final argument on appeal is that defendants failed to comply with
§ 4(f) of the Transportation Act by failing to consider “prudent and feasible”
alternatives to the use of 29 acres of publicly owned parkland. 49 U.S.C. §
303(c)(1). In evaluating alleged violations of the Transportation Act, we engage
in a three-tiered inquiry established by the Supreme Court in Citizens to Preserve
Overton Park, Inc. v. Volpe , 401 U.S. 402 (1971). First, we determine “whether
the Secretary acted within the scope of his authority.” Id. at 415. In that inquiry,
“the reviewing court must be able to find that the Secretary could have reasonably
believed that in this case there are no feasible alternatives or that alternatives do
involve unique problems.” Id. at 416. Next, we must determine that the
Secretary’s decision to authorize the project was not “‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’” Id. (quoting 5
U.S.C. § 706(2)(A)). To make this determination, we “must consider whether the
decision was based on a consideration of the relevant factors and whether there
has been a clear error of judgment.” Id. The court, however, “is not empowered
to substitute its judgment for that of the agency.” Id. Finally, we must determine
“whether the Secretary’s action followed the necessary procedural requirements.”
Id. at 417. According to plaintiff, the district court erred because structural mass
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transit is both feasible and prudent, and defendants improperly refused to consider
whether mass transit would obviate the need to use publicly owned lands.
Because we have already concluded that defendants did consider mass
transit during the preparation of the EIS, the only claim left for our review is
whether mass transit constitutes a “prudent and feasible” alternative to
construction. Although there appears to be no dispute that mass transit is, at a
minimum, feasible, we nevertheless conclude that defendants could properly
dismiss that alternative as imprudent. Whether an alternative is “prudent” for
purposes of the Transportation Act “involves a common sense balancing of
practical concerns, but § 4(f) requires the problems encountered by proposed
alternatives to be ‘truly unusual’ or ‘reach[] extraordinary magnitudes’ if parkland
is taken.” Committee to Preserve Boomer Lake Park v. Department of Transp. ,4
F.3d 1543, 1550 (10th Cir. 1993) (quoting Overton Park , 401 U.S. at 413).
Nevertheless, an alternative that does not solve existing or future traffic
problems, such as the congestion problem at issue in this case, may properly be
rejected as imprudent. See id. (citing Lake Hefner Open Space Alliance v. Dole ,
871 F.2d 943, 947 (10th Cir. 1989)). Because we have already concluded that
defendants reasonably rejected the mass transit alternative on the ground that it
fails to ameliorate the congestion problem in the project area, we conclude that
this alternative is imprudent for purposes of the Transportation Act. We have
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closely examined the final EIS, the ROD, and the portions of the administrative
record submitted for our review, and we conclude that the decision to construct
improvements in the project area “was based on a consideration of the relevant
factors” and followed “necessary procedural requirements.” Overton Park , 401
U.S. at 416-17.
IV
We are not unsympathetic to plaintiff’s position. Nevertheless, controlling
precedent dictates that we not evaluate the wisdom of the decision to construct
improvements at Parker Road. See Overton Park , 401 U.S. at 416; All Indian
Pueblo Council , 975 F.2d at 1445. To the extent we are able to review the
decision of the district court without the entirety of the administrative record, we
must conclude that defendants adequately complied with the requirements of
NEPA, its implementing regulations, and the Transportation Act. Accordingly,
the judgment is AFFIRMED.
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