Corridor H Alternatives, Inc. v. Slater

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 23, 1998 Decided February 9, 1999

No. 97-5301

Corridor H Alternatives, Incorporated, et al.,

Appellants

v.

Rodney Slater, Secretary,

U.S. Department of Transportation, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 96cv02622)

Andrea C. Ferster, with whom Thomas R. Michael was on
the briefs, for appellants.

Elizabeth S. Merritt, with whom Paul W. Edmondson,
Laura S. Nelson, Thomas S. Martin, and Thomas B. Wilner

were on the brief, for amici curiae National Trust for Historic
Preservation, et al.

Sheila D. Jones, with whom Lois J. Schiffer, Assistant
Attorney General, U.S. Department of Justice, John A. Bry-
son, and Marta Hoilman, Attorneys, U.S. Department of
Justice, Brett J. Gainer, Attorney-Advisor, Federal Highway
Administration, and William G. Malley were on the brief, for
appellees. Greer S. Goldman, Attorney, U.S. Department of
Justice, and Eliot R. Cutler entered appearances.

Before Wald and Tatel, Circuit Judges, and Buckley,
Senior Circuit Judge.

Opinion for the court filed by Senior Circuit Judge
Buckley.

Buckley, Senior Judge: Corridor H Alternatives, Inc., and
several other environmental and public interest groups (col-
lectively, "CHA") challenge a highway project in West Virgi-
nia that had been developed and approved by various federal
and state agencies. Specifically, they assert (1) that the
Federal Highway Administration violated the Department of
Transportation Act by failing to identify all the historic sites
it was charged with protecting prior to its decision approving
the route of the proposed highway and by erroneously con-
cluding that the highway would not "use" two of the sites it
did identify; and (2) that the agency violated the National
Environmental Policy Act by failing to give adequate consid-
eration to the improvement of existing roads as an alternative
to the construction of the new highway.

The district court held that the agencies had complied with
both statutes. Because we conclude that the Federal High-
way Administration was required to identify the historic sites
that might be at risk before it issued its decision approving
the highway's proposed route, we affirm in part and reverse
in part with instructions to the district court to remand the
matter to the Administration.

I. Background

Congress enacted the Appalachian Regional Development
Act of 1965, 40 U.S.C. app. ss 1 et seq. (1994), in order to

stimulate economic development in Appalachia by providing
the "basic facilities" that were believed essential for the
region's growth. These facilities were to include an "Appala-
chian development highway system" and a supporting net-
work of local access roads. See id. ss 2(a), 201(a).

Congress assigned responsibility for planning the new sys-
tem to the Appalachian Regional Commission, which is com-
posed of representatives of the Federal Government and the
participating States. Id. s 101(a). The Commission was
directed to designate "general corridor locations and termini
of the development highways." Id. s 201(b). Pursuant to
this authority, the Commission approved a plan for a 13-state
regional highway system that called for the establishment of
23 corridors, each of which would contain a highway that
would permit anticipated traffic to proceed in safety between
major termini at an average speed of 50 miles per hour,
commensurate with the terrain. See Joint Appendix ("J.A.")
at 289, 486.

The Commission did not map the corridors; it merely
identified their terminal points. The task of determining
their exact routes was left to the Federal Highway Adminis-
tration ("FHWA" or "Administration") and the affected
states. In the case of Corridor H, which is the subject of this
litigation, the Commission merely established that it was to
extend from Interstate 79 ("I-79") near Weston, West Virgi-
nia, eastward to Interstate 81 ("I-81") near Strasburg, Virgi-
nia. J.A. at 455.

Between 1982 and 1994, a 40-mile section of the new
Corridor H highway was built from its I-79 terminus to a
point just west of Elkins, West Virginia. In 1996 the State of
Virginia decided to withdraw from the project, with the result
that the eastern terminus is now located in West Virginia just
west of its border with Virginia. The present plan calls for
the building of approximately 100 more miles.

Federally funded highway projects must comply with a
number of statutory requirements. Those relevant here are
section 106 of the National Historic Preservation Act, codified
at 16 U.S.C. s 470f (1994) ("section 106"); section 4(f) of the

Department of Transportation Act, codified at 49 U.S.C.
s 303 (1994) ("section 4(f)"); and the environmental impact
analysis mandated by the National Environmental Policy Act,
42 U.S.C. ss 4321 et seq. (1994) ("NEPA").

Section 106 of the National Historic Preservation Act pro-
vides that before a federal agency may authorize the expendi-
ture of funds for a federal or federally assisted undertaking,
it must first consider the effects of such an undertaking on
"any district, site, building, structure, or object that is includ-
ed in or eligible for inclusion in the National Register." 16
U.S.C. s 470f.

The U.S. Department of Transportation regulations imple-
menting section 106 establish three steps that an agency must
take in order to comply with section 106. First, the agency
must identify the properties that are listed or eligible for
listing in the National Register. 36 C.F.R. s 800.4 (1998).
Next, it must evaluate the effects of the proposed undertak-
ing on those properties. Id. s 800.5. Finally, if the agency
determines that the project would have an adverse effect on a
historic property, it must consider measures to mitigate the
potential damage. Id.

Section 4(f) of the Department of Transportation Act states
that the Secretary of Transportation

may approve a transportation program or project ...
requiring the use of ... land of an historic site of
national, State, or local significance ... only if--

(1) there is no prudent and feasible alternative to
using that land; and

(2) the program or project includes all possible plan-
ning to minimize harm to the ... historic site resulting
from the use.

49 U.S.C. s 303(c). The Secretary has delegated this respon-
sibility to the FHWA. 49 C.F.R. s 1.45(4) (1997). The
FHWA's regulations implementing section 4(f) identify the
historic sites that are subject to the section as "all properties
on or eligible for the National Register of Historic Places."
23 C.F.R. s 771.135(e) (1998). Because the historic proper-

ties protected by section 106 are similarly defined, it follows
that the agency must complete its section 106 determinations
before it can comply with section 4(f).

The National Environmental Policy Act requires that an
environmental impact statement ("EIS") be prepared for any
"major Federal action[ ] significantly affecting the quality of
the human environment." 42 U.S.C. s 4332(C). The EIS
must include, among other things,

a detailed statement ... on--

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot
be avoided should the proposal be implemented, [and]

(iii) alternatives to the proposed action....

Id. In a case requiring an EIS, the agency must prepare a
"concise public record of decision" that identifies all the
alternatives it has considered and describes all the factors it
has taken into account in reaching its decision. 40 C.F.R.
s 1505.2 (1998).

The U.S. Department of Transportation, the FHWA, and
the West Virginia Department of Transportation ("WVDOT")
(collectively, "the agencies") began planning for the Corridor
H project in the late 1970's. They produced a draft environ-
mental impact statement in 1981 but suspended work on the
project until 1990. They then decided to proceed with the
environmental review in two stages, each of which resulted in
the issuance of a draft EIS.

The first of these, the Corridor Selection Draft EIS
("CSDEIS"), was issued by WVDOT in 1992. It was con-
cerned with the demarcation of the actual 2,000-foot-wide
route that Corridor H would take from Elkins, West Virginia,
to its eastern terminus, which was then located on I-81 in
Virginia. In conducting this review, WVDOT considered five
alternatives, including: the construction of a new four-lane
highway (the "Build Alternative"), improvements of existing
two-lane roads (the "Improved Roadway Alternative"), and
the self-described "No Build Alternative." It concluded that
only the Build Alternative and the No Build Alternative

merited more detailed evaluation because the Improved
Roadway Alternative would not be able to achieve the pro-
ject's speed and safety objectives. J.A. 292.

The second study, the Alignment Selection Draft EIS
("ASDEIS"), was completed two years later, in 1994. Its
purpose was twofold: to evaluate the environmental impact of
numerous 200- to 250-foot-wide "alignments" of the highway
itself, i.e., the actual ground within Corridor H that the
proposed four-lane highway would occupy, and to reexamine
the Improved Roadway Alternative. WVDOT issued its Fi-
nal EIS ("FEIS") on April 8, 1996, establishing the bound-
aries of Corridor H and reaffirming its decision to proceed
with the four-lane Build Alternative.

The FEIS adopted a "Programmatic Agreement," earlier
entered into by the FHWA and the relevant historic preser-
vation officials, which established the procedures that would
be followed by the FHWA in complying with the require-
ments of section 106. The Programmatic Agreement divided
Corridor H into 14 segments or sections and required the
FHWA to identify the historic properties in each of them in
the sequence set forth in the agreement, to assess the pro-
ject's impact on the properties, and to "utilize all feasible,
prudent and practicable measures to avoid adverse effects" to
them. It also stipulated that "[n]o work shall proceed in any
section which precludes consideration of alternate alignments
in [s]ections where treatment of historic properties has not
yet been finalized." Programmatic Agreement, reprinted in
J.A. at 185-98.

Four months later, in August 1996, the FHWA issued its
Record of Decision for the Corridor H project ("ROD"). The
ROD approved the FEIS's selection of the four-lane Build
Alternative as the preferred basis for the project as well as
its adoption of the corridor route and highway alignments
favored in the CSDEIS and ASDEIS, as modified to avoid
the constructive use of the Corricks Ford and Moorefield
Civil War battlefields. The FHWA concluded that by virtue
of these modifications, the highway would not "substantially
impair" the battlefields.

The ROD also incorporated the Programmatic Agreement's
segment-by-segment approach to compliance with section 106.
In recognition of the fact that the section 4(f) process could
not be completed prior to the identification of the protected
historic sites pursuant to section 106, the ROD specified that
its approval of the project was conditional only and would not
become final, as to any section of the corridor, "until the
Section 106 process has been completed for that section and
for any immediately adjacent section(s)." Record of Decision
at 16, reprinted in the J.A. at 302.

CHA challenged the approval of the Corridor H project in
district court. In considering the parties' cross motions for
summary judgment, the court observed that both parties had
advanced reasonable arguments in support of their respective
positions; but because of the deference due to agency deci-
sions that are not arbitrary or capricious, the court felt
obliged to grant summary judgment in favor of the agencies
on all counts of the complaint. See Corridor H Alternatives,
Inc. v. Slater, 982 F. Supp. 24, 35 (D.D.C. 1997).

II. Discussion

On appeal, CHA argues that the FHWA (1) violated section
4(f) both by deferring the investigations of the historic sites
until after the issuance of the ROD and by adopting the
Programmatic Agreement's incremental, segment-by-segment
approach to implementing the section; (2) acted arbitrarily
and capriciously and contrary to section 4(f) when it deter-
mined that the project would not substantially impair the two
Civil War battlefields; and (3) violated NEPA by rejecting
the improvement of existing two-lane roads as a reasonable
alternative to achieving the objectives of Corridor H. We
address these claims in turn.

A.Section 4(f)

FHWA regulations establish the procedures that must be
followed in complying with section 4(f). We defer to the
FHWA's interpretation of its regulations unless "it is plainly

erroneous or inconsistent with the regulation itself." Canadi-
an Am. Oil Co. v. NLRB, 82 F.3d 469, 473 (D.C. Cir. 1996).

CHA and the agencies base their cases on different sec-
tions of the regulations. In support of their claim that the
FHWA is required to complete the section 4(f) process for the
entire Corridor H project before issuing the ROD, CHA cites
sections 771.135(b) and (l) of the agency's regulations. Sec-
tion 771.135(b) directs that

[a]ny use of lands from a section 4(f) property shall be
evaluated early in the development of the action when
alternatives to the proposed action are under study.

23 C.F.R. s 771.135(b) (1998) (emphasis added). Section
771.135(l) (1998) provides that in cases requiring the prepara-
tion of an EIS, the agency "will make the section 4(f) approv-
al either in its approval of the final EIS or in the ROD." Id.
s 771.135(l) (emphasis added).

The agencies, on the other hand, contend that sections
771.135(m) and (n) permit the FHWA to prepare separate 4(f)
evaluations after it has issued the ROD. Section (m) states in
relevant part:

Circulation of a separate section 4(f) evaluation will be
required when:

(1) A proposed modification of the alignment or design
would require the use of section 4(f) property after the
... draft EIS, or final EIS has been processed;

(2) The Administration determines, after processing
the ... draft EIS, or final EIS that section 4(f) applies to
a property;

(3) A proposed modification of the alignment, design,
or measures to minimize harm (after the original section
4(f) approval) would result in a substantial increase in the
amount of section 4(f) land used, a substantial increase in
the adverse impacts to section 4(f) land, or a substantial
reduction in mitigation measures; or

(4) Another agency is the lead agency for the NEPA
process, unless another [Department of Transportation]
element is preparing the section 4(f) evaluation.

23 C.F.R. s 771.135(m) (1998). Section (n) continues:

If the Administration determines under s 771.135(m)
or otherwise, that section 4(f) is applicable after the ...
final EIS has been processed, the decision to prepare and
circulate a section 4(f) evaluation will not necessarily
require the preparation of a new or supplemental envi-
ronmental document.

23 C.F.R. s 771.135(n) (1998) (emphasis added). The agen-
cies argue that while subsection (n) requires the FHWA to
issue a separate section 4(f) evaluation in any of the four
circumstances listed in section (m), it does not state that
these are the only circumstances in which a separate 4(f)
evaluation is permitted. They then point to the phrase "or
otherwise" in subsection (n) which, they claim, would be
meaningless if it did not permit separate analyses under
circumstances other than those described in the prior subsec-
tion. Thus, they maintain, the regulations permit the FHWA
to use a "separate evaluation" in this case.

This argument is more resourceful than persuasive. Be-
cause they do not claim that any of the four situations
described in subsection (m) apply here, the agencies are
asking us to give greater weight to their creative interpreta-
tion of "or otherwise" than to the crystalline command, in
subsections (b) and (l), that the 4(f) evaluations be made while
"alternatives to the proposed action are under study" and
that the FHWA complete the 4(f) process no later than in the
ROD. Id. s 771.135(b), (l). While deference is normally due
an agency's interpretation of its own rules, that is not the
case where "an alternative reading is compelled by the regu-
lation's plain language." Thomas Jefferson Univ. v. Shalala,
512 U.S. 504, 512 (1994) (internal quotation marks omitted).
It is hard to imagine less ambiguous directives than those on
which CHA relies.

Nor are we impressed by the agencies' remaining argu-
ments. They assert that their sequential, segment-by-segment
approach is authorized by subsection (o) of the regulations,
which provides in relevant part:

(o) An analysis required by section 4(f) may involve
different levels of detail where the section 4(f) involve-
ment is addressed in a tiered EIS.

(1) When the first-tier, broad-scale EIS is prepared,
the detailed information necessary to complete the sec-
tion 4(f) evaluation may not be available at that stage in
the development of the action. In such cases, an evalua-
tion should be made on the potential impacts that a
proposed action will have on section 4(f) land and wheth-
er those impacts could have a bearing on the decision to
be made....

(2) A section 4(f) approval made when additional de-
sign details are available will include a determination
that:

(i) The preliminary section 4(f) determination made
pursuant to paragraph (o)(1) of this section is still val-
id....

23 C.F.R. s 771.135(o) (1998).

This section permits a preliminary, first tier 4(f) determina-
tion in circumstances where the unavailability of critical infor-
mation precludes the completion of the kind of evaluation
section 4(f) requires. Even then, the validity of the final,
second tier 4(f) approval is dependent on the ability of the
agency to affirm that the preliminary determination remains
valid. Here, however, the agencies have failed to make even
the preliminary section 4(f) determination subsection (o)(1)
requires.

Finally, we also reject the agencies' contention that section
771.105 of the regulations authorizes post-ROD compliance
with section 4(f). Section 771.105 sets forth the FHWA
policy that "[t]o the fullest extent possible, all environmental
investigations ... be coordinated as a single process...." 23
C.F.R. s 771.105(a) (1998). While there is obvious merit to

coordinating environmental reviews of the kind required by
NEPA and section 4(f), we do not read section 771.105 as
authority for the agencies to disregard the explicit require-
ment, in sections 771.135(b) and (l), that they complete the
section 4(f) process before the FHWA issues the ROD.

Because we conclude that the agencies have failed to
comply with section 4(f), we need not address their finding
that Corridor H will not "use" the Corricks Ford and Moore-
field Civil War Battlefields.

B.NEPA

CHA also claims that the ROD failed to comply with
NEPA's requirement that adequate consideration be given to
the Improved Roadway Alternative ("IRA"). The agencies
respond that they sufficiently evaluated the IRA and decided
that it could not meet the needs of the project.

At "the heart of the environmental impact statement," 40
C.F.R. s 1502.14 (1998), is the requirement that it identify
the reasonable alternatives to the contemplated action and

present the environmental impacts of the proposal and
the alternatives in comparative form, thus sharply defin-
ing the issues and providing a clear basis for choice
among options by the decisionmaker and the public.

Id. The statute, however,

directs agencies only to look hard at the environmental
effects of their decisions, and not to take one type of
action or another, [and we] correspondingly enforce the
statute by ensuring that agencies comply with NEPA's
procedures....

Citizens Against Burlington, Inc. v. Busey IV, 938 F.2d 190,
194 (D.C. Cir. 1991). We have recognized that a "rule of
reason" applies both to an agency's identification of the
available alternatives and to its examination of their relative
merits, and we have declared that we will defer to its conclu-
sions "so long as the alternatives are reasonable and the
agency discusses them in reasonable detail." Id. at 196.

We are satisfied that the agencies have met NEPA's "hard
look" requirement and that they have adequately supported
their determination that the IRA would not advance Con-
gress's goal of providing West Virginia with the "basic facili-
ties" essential for its economic growth. See Appalachian
Regional Development Act of 1965, 40 U.S.C. app. s 2(a). In
section II of the CSDEIS, entitled "Alternatives Considered,"
the WVDOT reviewed the merits and deficiencies of five
alternatives, including the No Build Alternative, the four-lane
Build Alternative, and the IRA in light of Congress's objec-
tive of developing a regional highway system and the design
standards established for the system by the Appalachian
Regional Commission. In its review of the IRA, the WVDOT
discussed in detail the reasons why that alternative could not
adequately address issues such as roadway deficiencies, safe-
ty considerations, and regional system linkage. We therefore
defer to the agencies' decision to proceed with the four-lane
Build Alternative.

III. Conclusion

We hold that the plain language of section 4(f) regulations
771.135(b) and (l) requires the agencies to complete the
section 4(f) process prior to the issuance of an ROD fixing the
route of the proposed four-lane highway. We also find that
the agencies took the "hard look" at the IRA that is required
by NEPA. For these reasons we affirm in part and reverse
in part the district court's grant of summary judgment for the
agencies, and we direct the court to return the matter to the
agencies with instructions to complete the section 4(f) process
before proceeding further with the Corridor H project.

So ordered.