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Corridor H Alternatives v. Slater

Citation: 29 ELR 20581
No. 97-5301, 166 F.3d 368/48 ERC 1155/(D.C. Cir., 02/09/1999)

The court holds that the Federal Highway Administration's (FHwA's) approval of a highway project in West Virginia violated the Department of Transportation Act § 4(f) historic sites review requirement. The court first holds that the plain language of § 4(f)'s regulations, 23 C.F.R. § 771.135(b) and (l), requires the § 4(f) process to be completed before the issuance of a record of decision (ROD) fixing the route of the proposed four-lane highway. The court next rejects the FHwA's argument that the applicable regulations permit the agency to use a separate evaluation in this case. While deference is normally due to an agency's interpretation of its own rules, that is not the case where an alternative reading is compelled by the regulation's plain language. The court then rejects the FHwA's argument that their sequential, segment-by-segment approach is authorized by 23 C.F.R. § 771.135(o). Subsection (o)(1) permits a preliminary, first tier § 4(f) determination in circumstances where the unavailability of critical information precludes the completion of the kind of evaluation § 4(f) requires. Here, however, the agencies have failed to make even the preliminary § 4(f) determination that subsection (o)(1) requires. The court also rejects the contention that § 771.105 of the regulations authorizes post-ROD compliance with § 4(f). While there is obvious merit in coordinating environmental reviews of the kind required by the National Environmental Policy Act (NEPA) and the Department of Transportation Act, the court does not read § 771.105 as authority for the agencies to disregard the explicit requirement in § 771.135(b) and (l) that they complete the § 4(f) process before the FHwA issues the ROD. Last, the court holds that the agencies have met NEPA's hard-look requirement and that they have adequately supported their determination that the highway project would not advance Congress' goal of providing West Virginia with the basic facilities essential for its economic growth.

Counsel for Appellants
Andrea C. Ferster
National Wildlife Federation
1400 16th St. NW, Washington DC 20036
(202) 797-5427

Counsel for Appellees
Sheila D. Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Wald and Tatel, JJ.