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Coalition Against a Raised Expressway v. Dole

ELR Citation: 18 ELR 20407
Nos. No. 86-7892, 835 F.2d 803/27 ERC 1019/(11th Cir., 01/13/1988) Aff'd

The court holds that the impacts from an elevated downtown expressway constitute "constructive use" of a historic city hall, a railroad terminal, and a park and therefore trigger the requirements of §4(f) of the Department of Transportation (DOT) Act. The court first holds that the failure of the Federal Highway Administration (FHwA) to include as part of the environmental impact statement (EIS) a federal study on harmful effects that raised expressways have had on downtown redevelopment in other cities did not illustrate any bad faith on the part of the agency. The FHwA later attached the report as an addendum to the EIS. The agency's failure to publicize the report earlier does not illustrate bad faith since it extended the public comment period after adding the report and adequately evaluated the report before selecting the preferred highway route. The court holds that the FHwA examined the two primary alternatives to the preferred route in good faith. Letters written by transportation officials indicating that the other alternatives should only be studied until proven unfeasible do not prove bad faith in view of evidence previouslygathered by the FHwA indicating that the other alternatives were unlikely to succeed. Moreover, the large amount of scientific data in the record shows that the FHwA took the required hard look at the alternatives.

The court holds that the FHwA did not violate the Federal Aid Highway Act's requirement that there be continuing, comprehensive, and cooperative planning involving state and local officials (3C's requirement). Although there were discrepancies between the plans of the city and the interagency metropolitan planning organization, the statute does not require consistency and the FHwA was within its discretion in viewing the inconsistencies as occurring in spite of the best efforts at cooperation. The court holds that the three-year time period during which the state conditionally certified compliance with the 3C's requirement was not unreasonable, since the record indicates that the two organizations continued to communicate and succeeded in resolving most of their differences during that period.

The court rules that reasonableness is the proper standard for reviewing the Secretary of Tranportation's decision not to comply with the requirements of §4(f) of the DOT Act. The decision not to comply with §4(f) is similar to an agency's decision not to prepare an EIS under the National Environmental Policy Act, which is reviewed in this circuit under the reasonableness standard. The court then holds that the Secretary unreasonably concluded that an elevated expressway would not significantly impair the historic city hall and railroad terminal and a city park. The court holds that the cumulative impacts from the expressway would be substantial enough to constitute a constructive use of the sites. The properties would be immediately adjacent to the expressway and thus particularly susceptible to adverse impacts. The record indicates that the highway would significantly increase the amount of traffic passing by the properties, increase air and noise pollution levels, and impair the view from the sites of the city and the river.

[The district court's decision is published at 17 ELR 20466.]

Counsel for Plaintiffs
Wade B. Perry Jr.
Johnstone, Adams, Bailey, Gordon & Harris
104 St. Francis St., P.O. Box 1988, Mobile AL 36633
(205) 432-7682

Counsel for Defendant
Edward J. Vulevich Jr., Ass't U.S. Attorney
P.O. Drawer E, Mobile AL 36601
(205) 690-2845

Before FAY, Circuit Judge, HENDERSON[*], Senior Circuit Judge, and FORRESTER[**], District Judge.