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West v. Secretary of the Dep't of Transp.

Citation: 30 ELR 20444
No. No. 97-36118, 206 F.3d 920/(9th Cir., 03/20/2000)

The court holds that the Federal Highway Administration's (FHwA's) use of a documented categorical exclusion (DCE) for a two-stage highway interchange project in DuPont, Washington, was arbitrary and capricious and was not in compliance with the National Environmental Policy Act (NEPA). The FHwA concluded that the project qualified for a DCE based on an example in FHwA regulations for "approvals for changes in access control." The court first holds that the case is not moot. Although stage one of the project is complete, stage two has not yet begun and, upon finding that the FHwA failed to comply with NEPA, the court's remedial powers would include remanding for additional environmental review and, conceivably, ordering the interchange closed or taken down. Therefore, the controversy is live and the alleged injuries admit of specific relief.

The court next holds that the FHwA violated NEPA by using a DCE for the highway interchange construction project. NEPA was triggered in this case because the FHwA must approve any new points of access to or exits from the interstate highway system. However, the FHwA's decision that the project qualified under the "approvals for changes in access control" DCE example was erroneous. The types of projects described in the regulations for DCEs suggest strongly that a DCE is not appropriate for a highway interchange construction project. The statutory requirement that the FHwA approve a state's plans to add access and exit points to an interstate highway is not synonymous with the "approval for changes in access control" for which a DCE may be used. Additionally, the interchange project fails the first prong of the test for a DCE, which is satisfying the general categorical exclusion (CE) criteria, because a CE is forbidden for projects that will have significant effects on travel patterns. The court further concludes that an environmental assessment was required for the project. Stage one of the project does not need to be torn down, but the existing DCE may not be used to satisfy the FHwA's NEPA obligations. The type of environmental review that will ultimately be required for stage two will depend on the scope of stage two when it takes shape more clearly.

Counsel for Plaintiff
Arthur S. West
Law Offices of Arthur S. West
2817 41st Way SE, Olympia WA 98501
(360) 753-3970

Counsel for Defendants
Brian C. Kipnis
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Reinhardt, J., with Thomas, J., dissenting