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Associations Working for Aurora's Residential Env't v. Colorado Dep't of Transp.

ELR Citation: 28 ELR 21459
Nos. No. 97-1418, 153 F.3d 1122/(10th Cir., 07/27/1998)

The court holds that a state transportation agency did not violate the National Environmental Policy Act (NEPA) when it allowed a private contractor with a possible conflict of interest to assist in the preparation of an environmental impact statement (EIS) for a highway interchange construction project. The court first holds that even if the contractor had a conflict of interest, the degree of supervision exercised by the state agency protected the integrity and objectivity of the EIS. The contract between the contractor and the state agency did not create an agreement with an enforceable promise or guarantee of future work for the contractor. A 1994 supplemental contract between the contractor and the state agency supplanted the scope-of-work provision under the original contract, thereby eliminating any contractual guarantee the contractor had to perform final design work. Moreover, the degree of oversight exercised by the state agency is sufficient to cure any defect arising from a conflict of interest created by the contractor's expectation of receiving the final design contracts for the project. The managers for the state agency made all major decisions, and the contractor's representatives reported to those managers to receive direction. In addition, the state agency prepared, without the contractor's assistance, several sections of the EIS. And the state agency 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 the 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.

The court next holds that the state agency satisfied the hard look, reasonableness standard of NEPA for alternatives to the proposed action. The EIS is not fatally defective because it fails to consider mass transit independently as a reasonable alternative to the construction proposal selected by the state agency. The state agency's goal for the instant project is to relieve extreme road congestion within the project area. The state agency reasonably rejected the mass transit alternative on the basis that it would not ameliorate the congestion problem in the area. The court also holds that the state agency did not violate Transportation Act §4(f) by failing to consider the mass transit alternative. An alternative that does not solve existing or future traffic problems, such as the congestion problem in this case, may be properly rejected as imprudent.

Counsel for Plaintiff
Robert S. Ukeiley
Law Offices of Robert S. Ukeiley
1942 Broadway St., Boulder CO 80302
(303) 440-3643

Counsel for Defendants
Gregory A. Jamieson, Ass't Attorney General
Attorney General's Office
Department of Law
1525 Sherman St., Denver CO 80203
(303) 866-3052

Before Henry and Holloway, JJ.