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4 ELR 20534 | Environmental Law Reporter | copyright © 1974 | All rights reserved Environmental Defense Fund, Inc. v. BrinegarNos. 72-419; 70-2651 (E.D. Pa. April 25, 1974)In deciding whether a feasible and prudent alternative exists to construction of a federally funded highway through parkland, the Secretary of Transportation may defer to local opinion as to whether an area is a public park, but may not defer to local preference as to its use, and instead must consider parkland preservation as of paramount importance, even in decisions made by the Secretary prior to the Overton Park case. The court therefore remands the routing of Interstate Highway 78 to the Secretary for further consideration. The court finds that a highway environmental impact statement may not be attacked by judicial proceeding until the EIS has been submitted to the CEQ and has been approved by the Federal Highway Administration. The Court finds that although public notice of location and design public hearings may have been misleading and statements by the Pennsylvania Department of Transportation at the hearings may have appeared unduly to restrict the scope of such hearings to economic issues only, such irregularities cannot be considered prejudicial agency error in the absence of a showing that a member of the public relied to his detriment upon such misleading notices and statements, especially where, as here, the agency provided full, correct information for public inspection at its offices. Counsel for Plaintiff Dowler, Mackson, Hauff, & Hettinger Counsel for Defendants John N. Hrubuvcak Fullam, J. This action seeks to enjoin further steps towards the construction of a new segment of Interstate Route 78 (I-78) south of the Allentown-Bethlehem-Easton tri-city area in Pennsylvania. The litigation surrounding the plans for this "southern bypass" was initiated by two lawsuits. The first was brought by four Pennsylvania townships purportedly suing on their own behalf and as representatives of the class of land owners within their boundaries. The second suit was filed by the Environmental Defense Fund and the Saucon Association for a Viable Environment, two organizations concerned with environmental protection. In August 1972, this Court ordered that these actions be consolidated, and permitted several individual property owners to intervene. Although the issue of whether a municipality may assert federal claims against its creator, the state, remains unresolved, there is no need to decide that question at this juncture. The relief granted at this stage of the proceeding is appropriate whether or not the townships are permitted to remain as plaintiffs. I. The Proposed Southern Bypass When completed, I-78 will extend from its eastern terminus at Interstate 695 in New York City, through New Jersey and into Pennsylvania, to its western terminus at Interstate 81, approximately 22 miles east of Harrisburg. At present, the interstate highway consists of portions of existing U.S. Route 22, a four-lane limited access highway which runs from New York City to Cincinnati, Ohio. The 23-mile stretch of Route 22 which passes immediately north of the Allentown-Bethlehem-Easton area is one of the portions of Route 22 which does not currently carry the "I-78" designation. This stretch of highway, in addition to serving interstate travelers en route between New York City and western Pennsylvania, is very heavily used to service the local needs of the Allentown-Bethlehem-Easton metropolitan area. The proposed southern bypass would connect an existing segment of I-78 which ends in the vicinity of Still Valley, New Jersey, east of the tri-city area, with an existing segment of I-78 which ends near Haafsville, Pennsylvania, west of the tri-city area. The bypass would be 35 miles long and vary between four and six lanes wide. For purposes of preparing environmental impact statements and holding public hearings, the proposed route has been divided into four segments. 1. The Western Part. For this segment of the southern bypass, technically labeled Legislative Route 1045, section HOO, two alternate alignments have been considered in depth. The first alignment, or "southern corridor," begins in the vicinity of Haafsville on existing I-78 and Route 22 in Lehigh County. From there, it diverges from Route 22 and proceeds southeasterly passing between the Boroughs of Macungie and Emmaus, and then curves in an easterly direction to the south of the Village of Vera Cruz. This alignment then proceeds in a northeasterly direction, crossing Route 309 near Lanark, and reaches its eastern end point near Stones Throw Road, just west of the Lehigh-Northhampton County line. Here, it connects with the Eastern Part of the bypass. The alternate alignment for the Western Part, the "northern corridor," begins at the same location. However, rather than diverging from Route 22 immediately, this alignment continues easterly along that existing highway to Ruppsville, where it diverges and runs in a southeasterly direction to Route 309 near the interchange of Routes 309 and 22. It then proceeds along a reconstructed Route 309 to Lanark, where it turns into a northeasterly direction to reach the same end point near Stones Throw Road. The draft environmental impact statement covering both alignments was completed on June 25, 1971, and was subsequently circulated to federal, state and local agencies for their review. A public hearing on the location of the Western Part of the bypass was held on July 21, 1971. The final impact statement has now been prepared by the Pennsylvania Department of Transportation (PennDOT), but it has not yet received the approval of the Federal HighwayAdministration (FHWA). Nor has the FHWA granted location approval for either alignment. 2. The Eastern Part. This segment is comprised of part of section 1, sections 2-6, and part of section 7 of legislative Route 1045. The proposed alignment begins at the end point of the Western Part, near Stones Throw Road, and proceeds in a northeasterly direction, passing into Lower Saucon Township, Northampton County. Continuing in a northeasterly direction, the alignment crosses Route 191 in the Colesville-Wydnor area and then passes into the southern part of the City of Bethlehem. Turning in an easterly direction, it runs north of Hellertown, through Bethlehem's Saucon Park, and then back into Lower Saucon Township. The alignment then turns in a northeasterly direction and proceeds into Williams Township. After running parallel to the Lehigh River, it turns more easterly and passes south of the City of Easton to its terminal point, approximately 0.7 miles west of the Delaware River. A public hearing on the corridor for this part was held on May 22, 1968, and a hearing on its design aspects was held on July 30, 1969. Because the proposed eastern alignment traversed Saucon Park, no federal aid could be approved until the Secretary of Transportation determined that there was no feasible and prudent alternative to such a route. This Secretary Volpe did on June 23, 1970. The draft impact statement was completed on August 9, 1971, [4 ELR 20535] and circulated for review. The final impact statement was then prepared by PennDOT and approved by the FHWA on January 19, 1972. The FHWA has granted both location and design approval for this part. 3. The Eastern Terminus Part. This part of the southern bypass is not challenged in this action. It consists of a very short segment, approximately 0.7 miles, running from the eastern end point of the Eastern Part to and including a proposed bridge over the Delaware River. 4. The New Jersey Part. This part, too, is not challenged in this action. It proceeds easterly from the proposed Delaware River Bridge for some 2.4 Miles and connects with existing I-78 in the vicinity of Still Valley, New Jersey. The plaintiffs in the consolidated action have moved for partial summary judgment in their favor on the following four issues: 1. Has an environmental impact statement on the proposed highway been prepared which satisfies the requirements of § 102(2)(c) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4322(2)(c)? 2. Is this highway project based on a "continuing comprehensive transportation planning process" carried on in conformance with the objectives stated in 23 U.S.C. § 134? 3. Have public hearings on the proposed highway been held which compaly with the requirements of 23 U.S.C. § 128 and the regulations promulgated thereunder? 4. Has there been a sufficient and correct determination by the United States Secretary of Transportation that there is "no feasible and prudent alternative" to the traversing of Bethlehem's Saucon Park by the proposed highway, as mandated by § 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f) and 23 U.S.C. § 138? Plaintiffs allege that PennDOT and the United States Department of Transportation (USDOT) have failed to satisfy these federal requirements, and,by way of relief, demand that those agencies be enjoined from taking or permitting further steps towards construction of the southern bypass — other than those steps necessary to secure compliance with federal law — until they have fully complied with the above statutes. On September 28, 1973, this Court held a hearing on plaintiffs' motion for a preliminary injunction against any contemplated expenditure for design, right-of-way acquisition, or construction related to the southern bypass, pending a decision on the merits. At the hearing, PennDOT agreed voluntarily that it would immediately halt all further steps towards the construction of the highway project, except for those steps necessary to comply with statutory requirements, until the issues could be resolved on their merits. By a subsequent statement, filed on February 11, 1974, PennDOT has represented that it will abide by this agreement until September 1, 1974. It is anticipated that, by that date, all issues not disposed of herein will be ripe for adjudication. With respect to the first issue, viz, the adequacy or inadequacy of the environmental impact statements prepared in connection with the proposed bypass, adjudication at present would be premature. PennDOT and the New Jersey Department of Transportation recently prepared a "Draft Continuing Environmental Evaluation Document" which is intended to demonstrate how the impact statements for the four sections of the southern bypass relate to one another, and to supplement several areas of discussion with new or additional information. This draft document was circulated among federal, state and local agencies, and private groups, including the plaintiffs herein, to elicit their comments and criticisms. A final document, which includes this commentary and the state agency's analysis of all adverse comments, is now being prepared; when finished, it will be submitted to the FHWA for federal approval. If approval is forthcoming, the document will thereupon be forwarded to the Council on Environmental Quality (CEQ). With the exception of the right-of-way acquisition of certain "hardship parcels," no expenditures by the State qualify for 90-10 federal funding until 30 days after the final document is received by the CEQ. It now appears that this review and approval process will not be completed until June 1, 1974. If and when the FHWA approves this final environmental impact statement, the question of whether defendants have complied with § 102(2)(c) of NEPA can be decided. It is clear that it would be premature for this Court to decide that question now in view of the number of federally-funded projects which have been cancelled or amended as a result of the administrative review process. See, Council on Environmental Quality, 3rd Annual Report (1972), pp. 224-30. The other questions raised by plaintiffs' motion for summary judgment are, however, ripe for adjudication. Moreover, the pretrial record reveals that there is no genuine issue of fact with respect to these questions, and that summary judgment is appropriate.Although the defendants have not filed a cross-motion for summary judgment, once the Court is convinced that the material facts are not in dispute, judgment may be rendered against as well as for the party moving for summary judgment. Pinkus v. Reilly, 71 F. Supp. 993 (D.N.J. 1947), aff'd 170 F.2d 786 (3d Cir. 1948), aff'd 339 U.S. 269 (1949). Without meaning to prejudge the issue of what relevant economic, social and environmental considerations surround the decision to build the southern bypass and therefore should be set forth in the environmental impact statements, it would be helpful to describe briefly the general parameters of the controversy, as they appear at this time. As noted above, a 23-mile stretch of U.S. Route 22 immediately north of Allentown, Bethlehem, and Easton currently carries both heavy local metropolitan traffic and through traffic en route between New York City and Pittsburgh and points west. By 1964, when the volume of traffic on the segment between Allentown and Bethlehem exceeded 30,000 ADT (average daily trips), Route 22 was considered to be pressed to its full capacity. In view of the expected growth of the Lehigh Valley area and predictions of a concomitant increase in cars and vehicle trips, there was an obvious need to relieve the growing traffic pressure on many roads in the area, and especially the strain on Route 22. Those who advocate the construction of a major highway south of the tri-city area believe that such a bypass, carrying the "interstate 78" designation, would divert much or all of the through traffic away from Route 22. The hope is that, by separating local and through traffic functions, highway use will be safer and more efficient, and Route 22 will be freed for strictly local use. However, even if the southern bypass actually relieves the pressure on Route 22 to the extent predicted, it now appears likely that some widening of Route 22 will be needed in the near future. In opposing the idea of a southern bypass, plaintiffs have declined to dispute seriously PennDOT's evaluation of the highway's adverse impact on the environment. Instead, their attack is primarily leveled at PennDOT's analysis of the need to relieve pressure on Route 22, the effectiveness of the proposed southern bypass in relieving this pressure, and the feasibility of alternative solutions to the problem, such as the widening of Route 22 or a mass transit system. Put simply, plaintiffs' argument is not that PennDOT has ignored environmental costs or assigned them too little weight; rather, it is that, either through capriciousness or corrupt purpose, PennDOT has both misjudged the potential benefits of the southern bypass and exaggerated the costs of alternative transportation plans. I do not wish to imply that there is complete agreement that PennDOT has adequately analyzed the effects that the bypass will admittedly have on air pollution, noise levels, the water table, and other environmental variables. In particular, plaintiffs have seriously questioned whether there has been sufficient consideration of the "secondary effects" of the highway, including the possible stimulus to an exodus from the urban core and the development of suburban sprawl in the rural countryside to the south of the metropolitan area. But, to date, the major controversy has raged over whether PennDOT's updated traffic projections for the year 1990 are correct, what volume of traffic will be diverted from Route 22 to the southern bypass, whether Route 22 could be widened to accommodate future traffic needs, and how much this sidening would cost. With this as background, I turn to the issues raised by plaintiffs' motion for summary judgment. III. Is the Proposal for the Southern Bypass Based on a "Continuing Comprehensive Transportation Planning Process' Carried on in Conformance with the Objectives Stated in 23 U.S.C. § 134? Title 23 U.S.C. § 134(a) states that: "It is declared to be in the national interest to encourage and promote the development of transportation systems, embracing various modes of transport in a manner that will serve the states and local communities efficiently and effectively. To accomplish this objective the Secretary shall cooperate with the states, as authorized in this Title, in the development of long-range highway plans and programs which are properly coordinated with plans for improvements in other affected forms of transportation and which are formulated with due consideration to their probable affect on the future development of urban areas of more than 50,000 population. After July 1, 1965, the Secretary shall not approve . . . any program for projects in any urban area of more than 50,000 population unless he finds that such projects are based on a continuing comprehensive transportation planning process carried on cooperatively by the states and local communities in conformance with the objectives stated in this section." Pub. L. 87-866, Oct. 23, 1962, as amended, Pub. L. 91-605, Dec. 31, 1970. In support of their argument that the proposed southern bypass is not a project which meets these requirements, plaintiffs point to a number of facts, statements, and studies which in their view indicate that the highway project was not founded on a basis of objective and rational planning, buth rather resulted from the arbitrary, preconceived decision of PennDOT. A review of the historical conception and continuing study of the proposal for a new, major highway south of the Allentown-Bethlehem-Easton area demonstrates that this contention is without merit. Until 1962, the Cities of Allentown, Bethlehem, and Easton approached their transportation problems independently and developed highway plans to meet their own local needs. These early proposals recognized the need to improve or re-route some of the highways south of the cities. In January 1962, the Joint Planning Commission (JPC) for Lehigh and Northampton Counties began its work on a comprehensive regional plan, and in May 1964, the Commission issued a "Comprehensive Plan for the Lehigh Valley, 1980." The plan discussed the appropriate roles of highway, mass transit, railroad and air carrier systems in the development of the region, concluding that "during the period between now and 1980, the highway and the means of transport which use it — the truck, bus, and automobile — will continue to be the dominant transportation facility of the Lehigh Valley." It was this plan that first proposed the construction of a southern bypass: "At present, connection to New York and to Harrisburg is provided by Route 22. The effectiveness of Route 22 in the region is limited because it passes close to the core of the region and consequently serves as a local expressway. As Route 22 is developed as an interstate highway (I-78), the section from Easton to Allentown should be located not where it is now, but south of the three cities, thereby separating the local function of Route 22 from the through traffic function of Interstate 78." The Lehigh Valley Transporation Study (LVTS) was instituted in 1964 to meet the requirements of § 134, added to Title 23 by the 1962 Federal Highway Act, Pub. L. 87-866, Oct. 23, 1962. This is a continuing study of the urbanized area of Allentown, Bethlehem, and Easton, and the surrounding territory likely to become urban within 20 years. Both the study's Coordinating Committee, the policy-making body, and its Technical Committee, which provides technical guidance to the Coordinating Committee, include members from the Cities of Allentown, Bethlehem, and Easton, the Counties of Lehigh and Northampton, and state and federal agencies. The LVTS is being undertaken in four broad stages: Phase I involved the collection of data on existing population, land uses, traffic patterns, and transportation facilities. In Phase II, present trends were used to project future traffic levels for 1975 and 1990, and this projected traffic was then assigned to the existing network of transportation facilities in order to anticipate future transportation deficiencies and needs. Phase III, currently in progress, is designed to evaluate the capability of alternative transportation systems to remedy the projected deficiencies and serve the future needs of the area. Included in this phase is the eventual selection of some optimum transportation plan. Phase IV of the study is the establishment and operation of a planning organization to maintain current data and to update the transportation plan as conditions change from those previously forecasted. The consulting firm of Wilbur Smith & Associates was retained to perform the technical studies for the LVTS. By September 1966, the second phase of the study having been completed and the deficiency of existing Route 22 for projected traffic levels being clear, the study concluded that "alternative routings will, therefore, be investigated in Phase III — to help satisfy this heavy demand in the corridor serving principal east-west traffic in the A-B-E area." In studies by the Wilbur Smith firm, seven possible alignments of new or improved east-west highways were analyzed for their effects on relieving 1990 traffic levels. These routings all passed either through or south of the Cities of Allentown and Bethlehem; Route 22, the existing east-west highway to the north of the cities, was linked with these southern routes by new north-south expressways. It appears that the traffic effect of a new east-west highway north of Route 22 was never analyzed in depth. Ultimately, two transportation plans were fully developed, their traffic capabilities analyzed, their costs and benefits weighed, and their land use implications considered. To solve anticipated east-west traffic problems, both plans recommended the following stpes: the widening of Route 22; the upgrading of Lawrence Street, an east-west route through the heart of Allentown and Bethlehem, to an expressway facility; the addition of a new east-west expressway 1-1/2 miles north of Route 22; and the construction of a new segment of I-78 south of the tricity area. The recommended southern route conformed to the routes described as the public hearings and in the impact statements, with one plan proposing the northern corridor for the Western Part and the second plan favoring the southern alignment for that part. In 1972, after further study, the LVTS finally published a single "Recommended Transportation Plan for 1990." Included among the "high priority" improvements — those to be realized by 1980 — is the southern corridor alignment of the southern bypass. Although the upgrading of many of the interchanges on Route 22 is also accorded high priority, the widening of Route 22 to six lanes is described as a low priority project to be undertaken some time after 1990. While the work on the LVTS was in progress, several other studies were undertaken, each casting light on the problem of improving the region's transportation network. In 1965, a study by the Urban Coordinator for District 5 of PennDOT's predecessor, the Pennsylvania Department of Highways, compared "road user benefits" to capital costs for six east-west highway alignments through the Allentown-Bethelehem-Easton area. Two of the alignments consisted of upgrading Route 22 to varying degrees, while the others were southern routes. Of the six alignments, the one corresponding to the southern bypass had the highest benefit-to-cost ratio. In 1966, the firm of Edwards & Kelcey released a statewide origin and destination study of automobile traffic in Pennsylvania. It projected much less growth in traffic levels along Route 22 than did other studies of the area, and concluded that the Route 22 alignment was a feasible location for I-78. However, this study's 1975 and 1990 highway plans both indicate the need for a new, highspeed expressway south of the Allentown-Bethlehem-Easton area. Clarke and Rapuano, an engineering consultant commissioned by PennDOT to study the feasibility of alternative routes within the southern corridor, released its report in February 1967. On the basis of "cost-comparison" of different highway alignments, and traffic projections made on the basis of data compiled by Wilbur Smith & Associates, Clarke and Rapuano recommended the construction of a route corresponding to the southern corridor of the proposed bypass. In 1968, a study on the feasibility of upgrading Route 22 to Interstate standards was performed by still another consultant, Berger Associates. This study concluded that it would be "an extremely difficult and prohibitively costly" to improve Route 22 sufficiently to accommodate projected traffic levels, and that, even then, the highway would not fully satisfy interstate highway criteria. [4 ELR 20537] The report pointed out the need for another route to carry the expected growth in east-west travel. Faced with this considerable mass of planning literature, most of which supports the proposal for the southern bypass, plaintiffs argue that political pressures within PennDOT and the financial interest of the consultants make the studies suspect. The undisputed facts provide no basis for such suspicions. Plaintiffs have correctly noted that in 1965, when PennDOT first requested the relocation of I-78 from its present route along U.S. 22 to a location south of the tri-city area, the Federal Bureau of Public Roads (the predecessor agency of the FHWA), rejected the idea. This fact, plaintiffs contend, should have been given some weight in the planning process, but apparently was not. However, a full reading of the letter from the Bureau of Public Roads (BPR) to the Secretary of the Pennsylvania Department of Highways makes it clear that the objection was only to the financing of the proposed highway on an interstate highway funding basis, and not to the merits of the southern route. In fact, the letter suggested that, "Since the need for the proposed route seems well esbablished, we would urge you to consider its designation as a state highway and federai-aid Primary System route," eligible for financing on a 50-percent federal — 50-percent state basis. This initial refusal of the BPR to approve the southern bypass for funding on a 90-percent — 10-percent basis was founded on the view that the proposed highway was needed primarily to solve local, rather than interstate, traffic problems. It certainly did not reflect an opinion that the proposal was inconsistent with sound transportation planning. Apparently the Federal Highway Bureau persisted in its view that the southern bypass would not qualify for interstate funding until the spring of 1968, but then became more amenable to PennDOT's proposal. Plaintiffs attribute this shift in the Bureau's position to political pressure applied by members of Congress, and claim that such an influence is at odds with any objective planning process. It does appear that, in the spring of 1967, Congressman Fred Rooney, of Bethlehem, introduced a bill in the United States House of Representatives to require the BPR to relocate I-78 from the Route 22 corridor to a new, southern route, and that shortly thereafter Senator Joseph Clark of Pennsylvania introduced parallel legislation in the United States Senate. Presumably, these bills never became law.Although no proof has been offered that the BPR was aware of these expressions of legislative interest, this fact may be reasonably inferred. From an administrator's mere awareness of Congressional pressure, however, it does not follow that his decisions cannot be made impartially and according to objective criteria. D.C. Federation of Civil Associations v. Volpe, 316 F. Supp. 754 (D.D.C. 1970). But in any event, even if the change in the position of the BPR was the result of extraneous political pressure, the change did not involve a new and skewed evaluation of the proposal, for it appears that the Bureau had never challenged the need for the southern highway; the effect of the political influence, if any, was the new willingness of the BPR to consider the southern bypass eligible for interstate highway (90-10) funding rather than primary (50-50) funding. Whatever the reason for the shift in the attitude of the BPR towards the relocation of I-78, it did not constitute a defect or inconsistency in the "transportation planning process carried on cooperatively by the states and local communities," mandated by 23 U.S.C. § 134. There will come a time, of course, when the BPR (now the FHWA), will finally review the merits of PennDOT's proposal, on the basis of the final impact statements, and will then decide whether the project qualifies for federal aid. If the FHWA does approve PennDOT's proposal, the question of whether political pressure distorted the federal review process can be answered by deciding whether the FHWA's action is fairly supported by an objective view of the merits.At present, however, federal funds have not been committed to the project. In addition, plaintiffs have attempted to impeach the integrity of PennDOT's planning process by reference to a letter sent in late 1969 by Pennsylvania's former Secretary of Transportation, Robert Bartlett, to Secretary Volpe of USDOT, in which Mr. Bartlett expressed his strong support for the proposed southern bypass and his dissatisfaction with the "federal bureaucratic bungling" that was delaying federal approval under § 4(f) of the Department of Transportation Act. Several key PennDOT personnel have admitted their awareness of the position taken by their higher-up, Mr. Bartlett. It is contended that their awareness, together with their recognition "that their further promotion could be blocked by the Pennsylvania Secretary of Transportation, that they could be transferred by him, forcing them to sell their homes and uproot their families," renders suspect the studies and conclusions of PennDOT's staff. Plaintiffs' reasoning is premised on the regrettable assumption that public servants are utterly lacking in independence and integrity. Without some evidence that the Secretary of PennDOT applied more direct pressure on his subordinates than a mere statement of his official position, I refuse to take such a dim view of human nature. Besides, this argument ignores the fact that by the time Secretary Bartlett expressed this strong view, in December of 1969, both PennDOT and private consultants had already undertaken a great deal of study, much of which supported the Secretary's position. Rather than show that the planning process was manipulated to conform to Secretary Bartlett's conclusions, the evidence tends to show that his conclusions followed from the planning process. Furthermore, since Victor Anskaitis had succeeded Mr. Bartlett as Secretary of PennDOT by the summer of 1970, the coercion, if any, effected by Mr. Bartlett's letter was very short-lived. Finally, plaintiffs have attacked the reliability of the consulting work done by the firms of Berger Associates and Clarke and Rapuano on the ground that they were both interested in obtaining lucrative design contracts in connection with the construction of the southern bypass. Ultimately, these firms were awarded contracts to perform the final design work on two of the eight sections of the Eastern Part of the project. No evidence has been introduced, however, to show that PennDOT departed in any way from its established procedures for selecting engineering consultants. Four other consulting firms were awarded contracts to do the design work on the remaining six sections of the Eastern Part. No explanation has been advanced by plaintiffs for why Berger Associates and Clarke and Rapuano would corruptly warp their findings to favor the southern bypass route over an expansion of the Route 22 corridor, in the face of engineering opinion to the effect that the widening of Route 22 would probably involve more design work — and larger contracts for the consultants. IV. Have Public Hearings on the Proposed Highway Been Held Which Comply with the Requirements of 23 U.S.C. § 128 and the Regulations Promulgated thereunder? Until 1968, federal funding for a highway project bypassing or going through a municipality was conditioned upon certification by the State Highway Department that it had held public hearings, or afforded the opportunity for such hearings, and had considered the economic effect of the highway's location. 23 U.S.C. § 128(a), Pub.L. 85-767, Aug. 27, 1958. The Federal Highway Act of 1968 amended that section to require certification by the State Highway Department that: ". . . it has held public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community." Pub.L. 90-495, § 24, Aug. 23, 1968. To implement § 128(a), the Secretary of Transportation has issued Policy and Procedure Memorandum (PPM) 20-8, 23 C.F.R. Appendix A (1971). The Third Circuit has intimated that these directives may have a vitality of their own, independent of § 128, by virtue of the Secretary's rule-making powers under § 9(e)(2) of the Department of Transportation Act of 1966, 49 U.S.C. § 1657(e)(2) (1971). The current PPM 20-8, which became effective on January 29, 1969, requires two public hearings to be held: First thereis a corridor public hearings at which the economic, social and environmental effects of the highway's location are considered. Then, after the FHWA has approved the location of the highway, a design public hearing is held to consider the effects of its design features. Until this directive was promulgated, a single public hearing was all that federal law required. In Wildife Preserves, Inc. v. Volpe, 443 F.2d 1273 (3d Cir. 1971), the Third Circuit decided that the "date of design approval is critical to the application of the statutes [Inter alia, the 1968 amendment to § 128(a)]" to a particular highway project. In that case, the Court held that because design approval for a new segment of Interstate 280 had been given before the effective dates of the 1968 amendment to § 128(a) and revised PPM 20-8, there was no duty to hold a new hearing to consider social and environmental effects and no requirement that two hearings be held to consider location and design questions separately. Implicit in the Court's decision is the suggestion that if design approval has not been granted by August 23, 1968, or January 29, 1969 (the effective dates of the 1968 amendment and revised PPM 20-8, respectively), then the added hearing requirements must be satisfied before an ongoing highway project receives further approval. All of this is mentioned because it appears that, in connection with the bypass' Eastern Part, PennDOT may not have complied with the hearing requirements as interpreted in the Wildlife Preserve case. For the Eastern Part, a corridor hearing was held on May 22, 1968, location approval was granted on August 13, 1970. Thus, both the 1968 amendment to § 128(a) and revised PPM 20-8 became effective before either location or design approval was granted. At the corridor hearing, the presiding state official made the following opening statement: "This public hearing will be conducted in the following manner: Following may opening remarks, I will call upon [certain officials from PennDOT's District 5-0] to explain the plans the proposed route will follow and the district's opinion as to the Economic effect this proposed highway will have on the area through which it passes. Next I will call on those persons who have entered their names on the appearance sheet to give testimony that they wish to give. Of course, this proceeding this evening is limited to the economic effect — whether it is beneficial or detrimental to the area through which it traverses." Arguably, another location hearing should have been held to consider the Eastern Part's environmental and social effects and its consistency with urban planning objectives. Somewhat surprisingly, in all their briefs, plaintiffs have not made this argument. In any event, the argument that a new location hearing is required appears weak in view of the following facts: First, regardless of public notices and introductory remarks to the effect that the May 22 hearing would be limited to the consideration of the highway's economic effects, the transcript reveals that environmental and social factors were discussed at the hearing. Several persons voiced opinions with respect to the impact of the bypass on the water table and water supply, on land fill areas, on noise levels, and on the scenic character of the countryside south of Allentown and Bethlehem. Second, the public notice of the design public hearing on the Eastern Part clearly stated that "the purpose of the hearing is to determine the economic and social effects of [the approved location], its impact on the environment, its consistency with the goals and objectives of . . . urban planning . . . ." Notwithstanding the fact that the scope of a design hearing is properly limited to consideration of variations of alignment and design within a preapproved corridor, it is clear from a summary of the transcript that there was a full discussion of alternatives to the southern corridor. The enlarged scope of discussion at this hearing probably eliminated any prejudice resulting from the failure to hold a second public corridor hearing. It is conceivable that, feeling constrained by the terms of PennDOT's public notice, some interested citizens might have limited their participation in the corridor hearing to the consideration of economic effects, and limited their participation in the design hearings to the consideration of environmental and social effects of design variations within the pre-selected corridor. But it is clear that many citizens did not feel so constrained. More importantly, no one has complained that his participation would have been greater if not for the terms of the public notice. Plaintiffs have raised a number of objections relating to PennDOT's conduct of the hearings. First, plaintiffs contend that PennDOT officials erred in refusing to permit questions from the floor to be put to the witnesses who testified at the hearings on the Eastern Part. However, though the questioning of witnesses was not allowed while they were testifying, it was announced at the outset of the hearing that PennDOT's personnel "will be here after this meeting [of May 22, 1968] is concluded to answer any and all questions you may have." It appears that questions were in fact answered by PennDOT officials both before and after the formal hearing on May 22, 1968. And at the design hearing, on July 30, 1969, in response to the 1969 revision of PPM 20-8 directing "highway officials to be present at public hearings . . . and to be responsive to questions which may arise," PPM 20-8(8)(b)(4), PennDOT officials made a question and answer period a part of the formal hearing. Contrary to plaintiffs' assertion, there is no requirement that questioning of the witnesses be allowed while they are testifying. To view the hearings required by 23 U.S.C. § 128 as adversary proceedings is to misconstrue their purpose. "The hearing [under 23 U.S.C. § 128] is non-adjudicatory, quasi-legislative in nature. It is not designed to produce a record that is to be the basis of agency action . . . ." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415 (1970). Under the regulations promulgated pursuant to 23 U.S.C. § 128: "Provision shall be made for submission of written statements and other exhibits in place of, or in addition to, oral statements at a public hearing. . . . The final date for the receipt of such statements or exhibits shall be at least 10 days after the public hearing." PPM 20-8(8)(d)(2). After the hearing, the transcript of the oral testimony plus any written statements are reviewed and analyzed by PennDOT. If cross-examination of witnesses were deemed necessary, it would be objectionable to allow written statements to be made part of the record without providing an opportunity for the cross-examination of their authors. Practical considerations also come into play. Approximately 1,200 citizens attended the corridor public hearing on May 22, 1968, and 32 persons testified. Many persons would have questions which are of narrow interest to them but not of general concern to the audience; these questions can be answered before and after the hearing. To have allowed questions from the floor to be put to the witnesses while they were testifying would have excessively and unnecessarily lengthened the hearing. Moreover, the prospect of cross-examination would very likely have inhibited many citizens from taking the witness chair and freely expressing their feelings about the highway. The opening remarks at the hearing were clearly aimed at encouraging civic participation: "I would also like to state at this time that this is not an adversary proceeding. By that I mean there won't be any cross-examination . . . The purpose of this is to elicit direct testimony from anyone who wishes to testify. We are not making limitations or anything else. If you feel you want to come up here and state that you are opposed to this route, you are free to do so." Another objection raised by plaintiffs is that, at the corridor hearing on the Western Part, despite their personal lack of expertise in traffic forecasting, certain PennDOT officials asserted that the proposed highway was needed to relieve anticipated traffic congestion on Route 22. These officials have admitted that their testimony was based on the conclusions of technical traffic studies done by other public agencies or private firms. Plaintiffs argue that the public was misled by PennDOT's failure at the hearing to make clear the qualifications of its representatives. This argument, too, rests on the mistaken assumption that public hearings under § 128(a) are adversary proceedings, at which a witness' opinions and credibility are to be tested. The true purpose of the public hearings is twofold: (1) "To make sure that state planning officials are apprised of the nature and depth of local residents' feelings about the wisdom of a particular project," D.C. Federation of Civil Associations, Inc. v. Volpe, 434 F.2d 436, 440 (D.C.C. 1970); and (2) "To give all interested persons an opportunity to become fully acquainted with highway proposals of concern to them," 23 C.F.R. § 790.1(b). This [4 ELR 20539] latter aim can be adequately accomplished by having responsible officials relate the many and sometimes technical opinions which are held by supporting staff and outside consultants. The hearing on the Western Part lasted from 7 p.m. until 1:30 a.m. The resulting transcript was over 800 pages long. If the authors of each planning study had been called to state their qualifications and to support their methodology, the hearing would have continued hours longer. And, given that most people are not equipped to evaluate the pro's and con's of traffic studies, the accompanying gain in public understanding would have been negligible. Technical inquiries can be answered before or after the hearing, assuming that qualified persons are made available at that time. Plaintiffs claim that PennDOT failed to "make suitable arrangements for responsible highway officials to be present at public hearings as necessary . . . to be responsive to questions which may arise," as required by PPM 20-8(8)(b)(4). Specifically, plaintiffs point to the fact that, when asked, "What is the projected traffic volume of the airport road interchange on Route 22 in th e year 1990 with the southern route of I-78 constructed and without the southern route of I-78 constructed?", no one from PennDOT could furnish an immediate answer. The question was eventually answered by mail, after an unfortunate delay of several months. Although they could not answer this particular question at the hearing, representatives were present from Wilbur Smith & Associates, the private consulting firm which developed the traffic projections for the LVTS, and from the Bureau of Advance Planning, the state agency concerned with traffic forecasting. Their inability to answer immediately one fairly technical question does not render the 6-1/2 hour hearing defective. Plaintiffs have also raised several objections relating to the public notices published in advance of the hearings on both the Eastern and Western Parts. First, the notices are said to have been defective because they described only the corridors proposed by PennDOT — a single corridor for the Eastern Part and alternate northern and southern corridors for the Western Part — and failed to include the Route 22 corridor or other possible routings. Second, it is asserted that the hearing notices were defective because, for purposes of consideration at the hearings, they severed the southern bypass into the Eastern and Western Parts and described only one part or the other, rather than suggest that the proper subject of the hearing was the bypass as a whole. The effect of this severance, plaintiffs contend, was to convey the idea that consideration at the hearings would be limited to one part alone with the corridor of the other part taken as a given fact. If citizens attending a hearing on one part were led to believe that the construction of the other part were a certainty, they would find themselves faced with drastically narrowed alternatives. It is no means clear what relationship should properly exist between the statutory public hearing requirement and the consideration of alternatives to a proposed highway project. This general question can be particularized in terms of the following issues: (1) To what degree should a state highway department be attached to one particular proposal at the time of the location hearing?Put otherwise, must the hearing be held before the department has selected a favorite from among the possible alternatives? And if not, how deeply held can its favortism be at the time of the hearing? (2) Assuming that a state highway department may be supporting a particular proposal when the location hearing is held, what responsibility does the department have to present and outline to the persons attending the hearings alternative proposals? To what degree should these alternatives have been prepared and analyzed beforehand, and must they be presented even if the highway department has concluded that they are not feasible? (3) Assuming that a state highway department has no obligation to present alternatives to its favored proposal, must the scope of the hearing be sufficiently broad to allow citizens to propose and support their own alternatives? May consideration of certain alternatives be disallowed on the grounds that the department has determined that they are not feasible? In partial answer to the first question, it is clear that a state highway bureau cannot be "committed to a specific proposal" at the time of the hearing. PPM 20-8(4)(a)(1) (1969). Were it otherwise, the hearing requirement would be, at best, ameaningless formality, or worse, a cruel hoax holding out "an opportunity . . . for effective participation by interested persons in the process of determining the need for, and the location of, a federal-aid highway," PPM 20-8(4)(a)(2) (1969), but affording none. Plaintiffs have alleged that PennDOT was already irrevocably committed to the southern bypass, before any of the public hearing. In support of this claim, plaintiffs cite a letter, dated April 4, 1968, sent from Berger Associates to a district engineer at PennDOT, which concerns the completion of the study on upgrading Route 22 to interstate highway standards. The letter states: "We have concluded our studies and are in the process of writing the draft report. Since we started the project, the decision has been made to route I-78 to the south of Allentown, Bethelem instead of updating U.S. 22. We understand that we are to complete our study merely as a matter of record." As already noted, the conclusion of that study was that the improvement of Route 22 to meet interstate criteria was not feasible. When confronted with this letter, PennDOT officials have not attempted to characterize the views expressed therein as a misunderstanding; rather, they assert that, though solidly on record as favoring the southern bypass, they have never closed their minds to alternatives and would readily support a different proposal if it were shown to be superior from a planning standpoint. As evidence, defendants point to a number of studies that have been conducted since April 1968, some in connection with the continuing LVTS, others for use in the environmental impact statements on the southern bypass. Of course, no amount of additional study, no willingness to listen to further argument or hold new hearings, can conclusively establish that PennDOT was not irrevocably committed to the concept of a southern bypass from the start, unless the further study and hearings produced evidence so overwhelmingly against the merits of the bypass that PennDOT's refusal to abandon its position could only be interpreted as an admission of utter intransigence. In this case, however, the studies completed and the hearings held after April 1968, at which time PennDOT was allegedly committed to its proposal, did not produce such evidence. The views on the southern bypass expressed at the hearings appear to have been divided, but certainly not one-sided. And the results of the studies were generally consistent with PennDOT's proposal. It is uncertain, in this situation, what effective relief the Court could grant if it were somehow established that PennDOT was already committed to one proposal by the time the hearings were held. Since it has not been alleged that new hearings would produce new information or a different registering of public sentiment, it is highly unlikely that anything would be accomplished by ordering PennDOT to, first, "uncommit" itself and, then, hold new hearings. Presumably PennDOT would come away from the new hearings still supporting the southern bypass, and, assuming that the new hearings were like those already held, who could show that PennDOT has not kept an open mind? On the basis of the record, I conclude that as of April 1968, before holding the first public hearing, PennDOT officials were of the firm opinion that the proposed relocation of I-78 south of the tri-city area was the best solution for anticipated traffic needs. However, firmly held opinions may be changed in the light of new evidence, if they are held by reasonable and good-intentioned men. Despite almost unlimited access to PennDOT's records, plaintiffs have failed to produce any evidence that defendants were irrationally or corruptly attached to the proposal for a southern route. But even if the conclusion is reached that hearings should have been held at an earlier date, before PennDOT had grown so partial to one proposal, I fail to see what relief would now be effective or appropriate. The third of the three questions posed above, viz, what limits, if any, a state highway department can impose on the scope of discussion at the hearings, need not be fully considered here. The purpose of the public hearings is to: ". . . provide a medium for free and open discussion and . . . [to] encourage early and amicable resolution of controversial issues that may arise." PPM 20-8(1)(a) (1969). A rational discussion of a highway's location must entail, almost by definition, consideration of alternatives. And, in 1970, the public hearing statute was amended to provide that, after holding public hearings, the State Highway Department must send to the United States Secretary of Transportation ". . . a report which indicates the consideration given to . . . various alternatives which were raised during the hearing or which were otherwise considered." 23 U.S.C. § 128, as amended, Pub.L. 91-605, Dec. 31, 1970. It is unnecessary to decide whether a state highway department may limit discussion to those alternatives which it has determined to be "feasible," or may exclude consideration of "nonstructural" alternatives, such as mass transit systems, staggered work shifts, and so on. It is clear that several witnesses at the hearings did express the view that the Route 22 alternative — which PennDOT has characterized as not feasible — should be adopted in place of the southern bypass. There is absolutely no evidence that the PennDOT officials presiding at the hearing disallowed or curtailed discussion of any alternative, no matter how unpopular or how impractical. No witness has complained that his presentation was in any way monitored or limited by PennDOT. The second question above, viz, whether a state highway department must present alternatives to its favored proposal at the hearings, is more difficult to answer. It is admitted that the public notice of the hearing scheduled for May 22, 1968, referred only to one proposal, PennDOT's proposal, for the Eastern Part, while the notice of the location hearing on July 21, 1971, described two corridors (the "northern" and "southern" alignments), both proposed by PennDOT for the Western Part. And it appears that PennDOT's presentations at the hearings were limited to an explanation of only these proposals. Little guidance can be gained from the language of the statutory public hearing requirements. Under 23 U.S.C. § 128(a), when a state highway department submits its plans for a federal aid highway project to the FHWA, it must certify "that it has held public hearings, . . . and has considered the economic and social effects of such a location [and] its impact on the environment . . . ." It might be argued that this should be interpreted to mean that the department need only present "such a location," i.e., its own plans, for consideration at the hearings. The directives of the Bureau of Public Roads which were in force at the time of the location hearing on the Eastern Part seem to supprt this view: "Public hearings required by § 128 should be held before the specific location of a proposed project is selected, but not until after the State Highway Department has selected a corridor location from among the alternates studied, and has developed preliminary plans in sufficient detail to enable the public and the state to consider and discuss the principle features of the proposed project at the public hearing." PPM 20-8(4)(a) (1959). Thus, with respect to the hearing on May 22, 1968, I do not consider PennDOT's failure to describe alternatives to its proposal in the hearing notice or at the hearing itself to be a breach of the regulations then applicable. However, revised Policy and Procedure Memorandum 20-8, effective January 28, 1969, defines a corridor public hearing as a hearing that ". . . provides a public forum that affords a full opportunity for presenting views on each of the proposed alternative highway locations and the social, economic, and environmental effects of those alternate locations." PPM 20-8(4)(a)(3) (1969). ". . . at each required corridor public hearing, pertinent information about location alternatives studied by the State Highway Department shall be made available." PPM 20-8(8)(b)(3) (1969). These portions of the regulations certainly suggest that a state highway department should come to the hearings with alternatives to its favored proposal, that it should have studied them beforehand, and that it should at least briefly describe them and refer interested persons to the background studies. Although the alternatives presented by PennDOT at the public hearing on the Western Part both consisted of the relocation of I-78 to a route south of Allentown, the choice between them was not meaningless. The "northern corridor" would be located immediately south of the city, and, in fact, would pass through several miles of the southern tip of the city. Of its 14.6 mile length, only about five miles would involve the construction of a new route; the greater length of the project would require the upgrading of existing Route 309, a divided four-lane expressway. Since this northern corridor utilizes an existing highway corridor, it passes through built-up areas for approximately 60% of its length. The "southern corridor," on the other hand, bulges out well around Allentown, running three to five miles to the south of the northern corridor. The full length of this 17.6-mile proposal would involve the construction of a completely new highway. At present, the surrounding land is generally undeveloped. PennDOT contends that it did not need to present the Route 22 alternative because it was not feasible.As will be discussed later, the evidence before the Court is inconclusive as to whether the widening of Route 22 to interstate standards is or is not a feasible alternative. That determination is properly left to the administrative agencies charged with the responsibility for determining highway location. Unless the determination is arbitrary or unreasonable — and, in this case, it is not — the Court should not substitute its judgment for that of the agencies. And, although the presentation of two alternatives did not provide the public with a great deal of choice, I refuse to interpret the hearing regulations torequire a state highway department to present alternatives which it has determined to be unfeasible. I now turn to plaintiffs' objections based on the division of the southern bypass into two parts for purposes of fulfilling the hearing requirement. It is admitted by PennDOT that the public notice of the hearing scheduled for May 22, 1968, referred only to the eastern half — a segment approximately 15.7 miles long — of the proposed 35-mile southern bypass; and the notice of the July 21, 1971 hearing described only the 17.6-mile long western section of the bypass. There was no suggestion in either notice, however, that the end points of the part under consideration were fixed and unalterable because of an irreversible commitment to the location of adjacent parts of the highway. Furthermore, the records of the proceedings at the two hearings show no attempt by representatives of PennDOT to portray the situation confronting the public as one requiring a choice among alternatives severely limited by the fixed and given terminal points of adjacent segments of the bypass. In fact, it is clear that the hearings included considerable debate on the need for the southern bypass, as a whole, and the feasibility of widening Route 22 as an alternative to the southern bypass, again, as a whole. Such debate was never restricted on the putative grounds that the only question still open for consideration was the corridor of a segment of the bypass between given end points. Because of the large number of citizens interested in the location of the highway, it would have been difficult to hold a single, unified hearing for all citizens affected by the entire length of the southern bypass. The original hearing on the Eastern Part alone had to be rescheduled when it became obvious that the Bethlehem Civic Center would not accommodate all those wishing to attend; when the hearing was ultimately held on May 22, 1968, in a larger auditorium, an estimated 1,200 persons attended. At the location hearing on the Western Part, some 800 persons were present, though it is possible that some of these persons were included among those attending the hearing on the Eastern Part. Moreover, as the size of a hearing becomes greater, so does the danger of limiting or foreclosing the opportunity for all concerned persons to be heard. Thus, it was preferable to break the highway into subsections for purposes of satisfying the public hearing requirement. At a hearing on a particular part of the bypass, individuals uniquely affected thereby could attend and express their views on the exact location of that part, always on the condition that the scope of the hearing [4 ELR 20541] allow consideration of the need for and general corridor of the bypass as a whole. In sum, the size of the hearings and the length of the highway under immediate consideration must be sufficiently small to insure full and fair public participation; but, at the same time, the hearings should inform the public of how that segment of the highway relates to the larger highway plans and must permit the inquiry into the merits and demerits of, and alternatives to, those larger plans. Undoubtedly, the public notices could have — and should have — more clearly expressed the matters for consideration at the hearings. While plotting with exactness the proposed course of the part of the bypass of immediate concern to those at the hearing, the notices neither described, in more general terms, the entire southern bypass project, nor invited discussion of that larger concept. This defect was lessened, of course, by the fact that the notices referred interested persons to PennDOT's Allentown office for the impact statement and other background materials which would have provided a description of the southern bypass as a whole. In any event, as already mentioned, members of the public clearly did address themselves at the hearings to the merits of the bypass as a whole. Moreover, in this case "[plaintiffs] are unable to cite a single instance in which an interested party was deprived of an opportunity to be heard, nor are they able to indicate any additional information that was not submitted at the hearing as a result of the deficiency in the notice. In dealing with errors committed by administrative agencies we are required to take due account of the rule of prejudicial error. 5 U.S.C. § 706." Citizens to Preserve Overton Park v. Volpe, 432 F.2d 1307, 1314 (D.C. Cir. 1970), rev'd on other grounds, 401 U.S. 402 (1970). Finally, plaintiffs point to the guidelines of the Council on Environmental Quality which require agencies to make the draft impact statement on a project available to the public at least 15 days prior to the hearings on that project, Guidelines for Statements on Proposed Federal Actions Affecting the Environment, 36 Fed. Reg. 7724-29, Apr. 23, 1971, and argue that defects and omissions in the impact statement therefore render the subsequent hearing itself defective. But there is no warrant for a strict rule that condemns as per se invalid any public hearing held on the basis of an inadequate draft impact statement. It is true, as plaintiffs say, that the CEQ guidelines require that information about the federally-funded project be conveyed to the public prior to a hearing by the vehicle of a draft impact statement. And, admittedly, effective public participation at a hearing depends on an informed citizenry. But not every shortcoming of an impact statement will so affect the degree or direction of community participation as to require a new hearing. This conclusion is supported by the CEQ guidelines themselves, which provide that the draft, rather than the final, impact statement be made available as a basis for public participation at a hearing. The procedure by which draft impact statements are circulated, reviewed, and then changed or supplemented in light of the comments solicited, clearly recognizes that the statements may not be adequate or complete in their draft form. Yet, the CEQ guidelines rely on draft impact statements to educate interested citizens prior to public hearings. This is not to say that a draft impact statement may never contain deficiencies or inaccuracies which fatally taint a public hearing and give rise to the need for a new hearing. In determining whether a new hearing must be held on the basis of a new, improved impact statement, the critical inquiry is this: Does the information set forth in the new impact statement differ from that published in the original, deficient statement so substantially that either (1) members of the public who did not consider themselves affected by the proposed highway on the basis of the original impact statement, and who therefore had no reason to attend the hearing, now would recognize the possible impact of the highway on their interests; or (2) members of the public who did consider themselves affected by the proposed highwayon the basis of the original impact statement, and who therefore may have expressed their views at the hearing, now would have quite different views to present? This approach flows logically from the law which governs the issue of whether a new public hearing must be held following a change in the proposed nature, scope, or location of a highway project. Under federal regulations, a new hearing is required if there is a change in plans which would result in a highway that "(1) is on a new location, or (2) would have a substantially different social, economic, or environmental effect. . . ." 23 C.F.R. § 790.5(a). One court of appeals has held that no new public hearing is required following a change in the location of a proposed highway if the change is "so insubstantial that the public would not be affected any differently than by the original proposal which formed the basis for the first hearing. . . ." D.C. Federation of Civil Associations v. Volpe, 459 F.2d 1231, 1243 (D.C. Cir. 1972). That court decided, however, that a change in the proposed location of an interstate highway bridge of 1,500 feet did necessitate a new public hearing. In Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972), the Fourth Circuit decided that a new hearing on a highway project was required in view of the new and unexpected development of plans for a rapid rail system in the area. This change, the Court said, might have produced new economic effects significantly different from those anticipated at the time of the original hearing. However, certain other changes, such as a change in the job distribution between Washington, D.C. and the Virginia suburbs, or a change in Washington's highway network, were considered "not so unforeseeable as to require a new hearing." 458 F.2d at 1338. Since one of the central purposes of the hearing requirement is to permit participation by segments of the public affected by a proposed highway, the need for a new hearing is equally strong whether that participation would be substantially different because of a change in highway plans or because of a change in the public information about unchanged plans. The corridor and design hearings on the Eastern Part of the bypass were held before the enactment of the NEPA and its requirement of environmental impact statements. While information about a highway proposal was not conveyed to the public by the vehicle of impact statements, the regulations did provide that: "The notice of public hearing shall specify that maps, drawings, and other pertinent information developed by the State Highway Department and written views received [from other interested agencies and organizations] will be made available for public inspection and copying. . . ." 23 C.F.R. § 790.7(a)(3). Plaintiffs have not alleged that such information was not made available, as required, or that it was inadequate to permit full and informed public participation. Nor is it suggested that new hearings on the Eastern Part must be held simply because there are now impact statements which could serve as a basis for such hearings. When the location hearing on the Western Part of the bypass was held, the CEQ guidelines were in effect. As required by those guidelines, PennDOT made the draft environmental impact statement on that part of the highway available to the public in advance of the hearing. Whether the draft statement was so deficient, when viewed against the information that an adequate impact statement should contain, as to require a new location hearing, is a question that can be best answered when the adequacy or inadequacy of the final impact statement is determined. At that point, the omissions or inaccuracies, if any, of the draft statement will be clear, and their significance in connection with the public hearing requirement and the CEQ guidelines can be weighed. V. Has There Been a Sufficient and Correct Determination by the Secretary of Transportation That There is No Feasible and Prudent Alternative to the Crossing of Bethlehem's Saucon Park by the Proposed Highway? No federally-funded highway project requiring the use of public parkland "of national, state, or local significance" can be approved by the United States Secretary of Transporation unless he first determines that: "(1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such part . . . resulting from such use." § 4(f) Department of Transportation Act of 1966, 49 U.S.C. § 1653(f), amended Pub.L. 90-495 § 18(b), Aug. [4 ELR 20542] For any project not approved by April 1, 1967, compliance with these requirements must be measured by the standards set forth in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). See Wildlife Preserves, Inc. v. Volpe, 443 F.2d 1273, 1275 (3d Cir. 1971). PennDOT's proposal for the southern relocation of I-78 would carry the highway straight through the widest part of Saucon Park, a 193.5-acre park owned by the City of Bethlehem. The "local significance" of Saucon Park is not in doubt.It is one of the City's largest parks, second in size only to Bethlehem's Monacacy Park, and provides the community with a large swimming pool, athletic fields, children's play facilities, and a tree-shaded picnic area and pavilion. Located along the banks of Saucon Creek, the park has an elongated shape, its length stretching 1-1/2 miles from north to south, its width varying from 1/4-mile to narrow spots of a few hundred feet. The proposed route for the southern bypass would sever the linear park almost exactly at its midpoint, and, as noted above, this crossing would occur at the park's widest part. PennDOT's plans call for a "spur route," Interstate 378, to branch off from I-78 at the eastern border of the park and to wind north, through Bethlehem's downtown area, until it meets Route 22 on the north side of the City. In all, the crossing of I-78 and its interchange with the Bethlehem spur route will require 42 acres of parkland — almost one-third of the park's present area. Seeking to discount the adverse impact of the highway crossing, PennDOT has emphasized the following facts: (1) The land to be taken by the southern bypass is characterized as "undeveloped" recreational land. While it does appear that the most intensively used areas of the park — the swimming pool, the playgrounds, the picnic pavilion, and parking facilities — lie to the north of the proposed crossing and will not be disrupted, PennDOT's exhibits reveal that three "frequently used" softball fields will be displaced by the highway. (2) The southern bypass would be elevated above Saucon Creek sufficiently to allow a 130-foot wide underpass for pedestrians and vehicles along the creek's western bank, thereby providing access between the parkland to the north and that to the south of the highway crossing. Admittedly, however, no such access would exist on the eastern bank; and the elevated highway would created a visual barrier dividing the park. (3) The City of Bethlehem has agreed that the funds received from the State for the right-of-way through Saucon Park will be earmarked for the acquisition and development of new recreational areas within the City. In particular, the City plans to use these proceeds to purchase additional land bordering Saucon Creek, thereby extending Saucon Park three-quarters of a mile north, to the point where the creek empties into the Lehigh River, and two miles south, into Lower Saucon Township. If Saucon Park is expanded as planned, it eventually will form a four-mile long linear barrier, and, PennDOT argues, an east-west highway crossing at some point will be unavoidable. On June 23, 1970, John Volpe, then Secretary of USDOT, approved PennDOT's proposed routing of I-78 through Saucon Park as satisfying the requirements of § 4(f). The responsibility for making the determination mandated by § 4(f) lies, of course, with the Secretary of USDOT and not with this Court. But while this Court will not substitute its judgment for that of the Secretary, it must review the administrative action to determine, first, whether Secretary Volpe properly construed the scope of his authority under § 4(f), Citizens to Preserve Overton Park, supra, at 415-16, and second, whether the Secretary's action was reasonable and taken only after consideration of all factors relevant to the determinations required by § 4(f), Citizens to Preserve Overton Park, supra, at 416-17. Plaintiffs argue that when Secretary Volpe approved the crossing of Saucon Park by I-78, he did not apply the correct legal standard to determine that there was "no feasible and prudent alternative to the use of such land." The Supreme Court's Overton Park decision made plain the meaning of this requirement of the parkland statute. In enacting § 4(f) of the Department of Transportation Act, Congress intended that protection of parkland be given "paramount importance." Citizens to Preserve Overton Park, supra, at 412. "The few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems." Citizens to Preserve Overton Park, supra, at 413. In issue, then, is whether Secretary Volpe recognized the extent to which Congress had "specified only a small range of choices that the Secretary can make" under the parklands statute. Citizens to Preserve Overton Park, supra, at 416. I have concluded that, from the limited evidence introduced on this issue, it is difficult to draw any inference but that the Secretary did not fully appreciate the narrow constraints within which his authority was to be exercised when he approved the use of 42 acres of Saucon Park for the southern bypass. It was not until March 2, 1971 — some eight months after Secretary Volpe had made his § 4(f) determination with respect tothe crossing of the park — that the Supreme Court rendered its Overton Park opinion which narrowly delineated the Secretary's authority under the statute. Until then, it had been the position of the Secretary, at least for purposes of legal argument, that the parklands statute gave him wide discretion. The Supreme Court summarized the Secretary's contention as follows: "[R]espondents argue that the Secretary has wide discretion . . . [and] that the requirement that there be no other 'prudent' route requires the Secretary to engage in a wide-ranging balancing of competing interests. They contend that the Secretary should weight the detriment resulting from the destruction of parkland against the cost of other routes, safety considerations, and other factors, and determine on the basis of the importance that he attaches to these other factors whether, on balance, alternative feasible routes would be 'prudent.'" Citizens to Preserve Overton Park, supra, at 411. To the contrary, the Supreme Court ruled, "No such wideranging endeavor was intended." When the Secretary's early interpretation of the scope of authority is so compared to the much narrower scope ultimately set forth in Overton Park, it is questionable whether the presumption of regularity traditionally accorded administrative actions should be extended to § 4(f) approvals given before the date of that decision. Indeed, it has been argued that a presumption of irregularity should attack to all pre-Overton Park § 4(f) approvals. See Grey, "§ 4(f) of the Department of Transportation Act," 32 Md. L. Rev. 327 (1973). Certainly, if Secretary Volpe's action in approving the interstate route through Saucon Park is entitled to any presumption of regularity at all, that presumption is weak, and, on the facts of this case, it must fail. First, the plaintiffs have introduced the affidavit of Oscar Grey, who was director of the Office of Envirnmental Impact in the office of the Secretary of Transportation between December 1968 and May 1970, and, as such, "personally involved in advising the Secretary of Transportation of the determinations he made pursuant to § 4(f) of the Department of Transportation Act. . . ." Mr. Grey's account of the Secretary's approach to § 4(f) approval is rather devastating: "I was aware of his [the Secretary's] views, and those of his other advisors (from the Federal Highway Administration) concerning the requirements of § 4(f). I know from this experience, at the time, they (including the Secretary himself) took a markedly different view of the requirements of § 4(f) than that later taken by the Supreme Court in Citizens to Preserve Overton Park v. Volpe. "Specifically, they took the view that § 4(f) required the Secretary to decide only whether, on the basis of a necessarily imprecise balancing process the benefits of avoiding parkland sufficiently outweighed the costs to make such [4 ELR 20543] avoidance 'prudent,' and, if such avoidance was not 'prudent,' whether all possible planning had occurred to minimize harm to the parkland. They did not interpret § 4(f) to require, as the Supreme Court subsequently held in Overton Park, that 'protection of parkland was to be given paramount importance,' 401 U.S. at 412-413, and that 'public parks were not to be lost unless there were truly unusual factors present . . . or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. Id. at 413. "The practical effect of this pre-Overton Park interpretation of the Secretary's mandate under § 4(f), as just described, was that the Department of Transportation was not as protective of parkland, nor as broadly inquiring in its consideration of alternatives, as the Supreme Court required it to be in Overton Park." Furthermore, Mr. Grey asserted that, because of the Department's relaxed attitude towards the requirements of § 4(f), certain information pertaining to the merits of the southern bypass and alternatives thereto was never brought to his attention. At the time, "my routine sources of information in the Federal Highway Administration considered such matters irrelevant for the purposes of § 4(f). However, I would now consider them highly relevant for purposes of § 4(f) . . . in light of the Overton Park decision." Having qualified himself as the officer personally responsible for obtaining information for Secretary Volpe on whether there were feasible and prudent alternatives to the use of Saucon Park, Grey's statements are entitled to serious consideration. Yet, when faced with this damaging affidavit, defendants have permitted it to go virtually uncontroverted. Defendants have not challenged, by affidavit or otherwise, Grey's account of the Secretary's pre-Overton Park interpretation of his authority and discretion under the Parklands Statute; nor have they disputed Grey's qualifications to give such an account. If defendants believed Grey to be mistaken in his conclusions, one very obvious response would have been to introduce the affidavit of Secretary Volpe himself. But neither the federal nor the state defendants have availed themselves of this opportunity, despite the Supreme Court's suggestion that an inquiry into the Secretary's deliberative processes may sometimes be helpful or even necessary, especially in situations like the instant case, where the Secretary has not made findings of fact which might otherwise have illuminated the administrative action now in question. Citizens to Preserve Overton Park, supra, at 420. Rather than take issue with the opinions set forth by Grey in his affidavit, defendants point out that Grey left his post at the Secretary's office seven weeks before Secretary Volpe made the § 4(f) determination with respect to the use of Saucon Park, and contend that Grey's assertions, even if taken as true, do not conclusively establish that on June 23, 1970, the date of the § 4(f) approval, Secretary Volpe remained unaware of the "small range of choices" which he was authorized to make. But this argument asks the Court to presume too much. Defendants have not explained why, during those seven weeks, the Secretary might sudenly have reconstrued the scope of his authority. The administrative record for the pertinent period fails to reveal the slightest hint of a change in Secretary Volpe's views. And the fact remains that, eight months later, the Secretary's legal counsel were claiming that § 4(f) empowered him to take discretionary action within very broad limits. What the administrative record does disclose, however, is a history of inter-governmental communications — culminating in the Secretary's approval of the use of Saucon Park — which further cements the conclusion that the Secretary did not fully appreciate the limited constraints within which his authority was to be exercised when he gave that approval. On October 7, 1969, PennDOT submitted to FHWA's Pennsylvania division various documents in support of its position that there existed no prudent or feasible alternative to the proposed bisection of Saucon Park by I-78. For the most part, this material is limited to consideration of alternatives to PennDOT's "adopted line" for the highway within the southern bypass corridor. "Scheme A-1" would take 37 acres of parkland and 66 buildings in nearby Hellertown Borough, and would cost $12.6 million. "Scheme B" would take only 23 acres of the park and only 12 buildings, but would cost $21.7 million. "Scheme C" would require 37 acres of parkland and take 22 buildings in Hellertown Borough, at a cost of $16.9 million. The adopted alignment, by comparison, would require the most parkland — 42 acres — and would cost $13.9 million (how many buildings would be taken by this routing is unclear). Alternatives B and C were rejected because of their relatively high cost. The proposed alignment was then chosen over Scheme A-1 after a meeting with representatives of local government and business. Through the State's supporting material, there is repeated emphasis on the concurrence of the Mayor of Bethlehem, the City of Council, and the Director of City Parks and Public Property. In all the material submitted to FHWA on October 7, 1969, there is only this short discussion of possible alignments outside the southern bypass corridor, that is, alignments which would avoid Saucon Park's present boundaries altogether: "It is readily apparent from [an accompanying] drawing that an alternate alignment to the north is impossible because of the Bethlehem plant and railroad yards. It is equally apparent that any alternate alignments to the south would still cut across existing or proposed parkland, irrespective of other effects such alternates would have upon the local communities. Indeed, an alternate alignment south of the proposed location would have a greater adverse impact upon Saucon Creek Park for three reasons: (1) it would cut across areas which are to be preserved in their natural state; (2) I-78 would cut Saucon Creek Park into two large parts instead of being located at the northern extremity of the park; and (3) it would extent L.R. 1007, south Boulevard extended [the Bethlehem spur route], further south, requiring even greater acquisition of existing or proposed parklands." On December 31, 1969, having received no response to the State's application for § 4(f) approval, Robert Bartlett, Secretary of the Pennsylvania Department of Highways, sent Secretary Volpe a letter complaining of "bureaucratic bungling" and requesting quick federal approval of the selected alignment. Shortly thereafter, on January 9, 1969, Mr. F.C. Turner, the Federal Highway Administrator, sent an "action document" to Secretary Volpe. This provided the Secretary with a short summary of information bearing on the determinations to be made under § 4(f), and recommended that PennDOT's plan be approved. With respect to the Route 22 alternative to the north and an alignment further south, both of which would completely avoid the park, the summary explained that "[n]either of these corridors were acceptable to the State for the interstate routing, primarily because of inferior traffic service and inherent lower standards involved." The memorandum to the Secretary concluded: "In summary, our review did not reveal any disagreement between city, state or park officials regarding the relationship of the highway and the park. We consider that the information furnished by the State demonstrates compliance with the pertinent laws. It is recommended that the State's documentation be accepted as fulfilling the requirements of § 4(f) and § 138. Your concurrence is requested." It appears that the "action document," along with supporting material, was referred to Mr. J.D. Braman, the Assistant Secretary for Environmental and Urban Systems and then to Mr. Oscar Grey, the then Acting Director for the Office of Environmental and Urban Research, for their review. Assistant Secretary Braman advised that he was satisfied with the proposed route for I-78, "[i]n view of the fact that we have heard no opposition to the project, and the statement in [sic] approval of the [Bethlehem] Park Department." However, in early February 1970, when Mr. Grey received from the Mayor of Bethlehem a letter objecting to the crossing of Saucon Park (on the grounds that more of the highway should be elevated above the park by a bridge structure, instead of raised on fill, in order to provide a wider underpass area), there was a sudden hitch in the federal review process. The record reveals that, until then, this review had included little or no independent, critical [4 ELR 20544] evaluation of PennDOT's plans and had produced nothing but the unhesitating concurrence of federal officials. Upon learning of the opposition of local officials, Assistant Secretary Braman immediately declared that "a careful second look at this project" was needed. Whether or not the plans to bisect Saucon Park required a "careful second look" at that point, it is clear that they were not subjected to further independent scrutiny by federal officials. And, accordingly, when PennDOT's plans were finally approved by Secretary Volpe on June 23, 1970, the federal agencies responsible for making § 4(f) determinations knew virtually nothing more of the underlying merits of PennDOT's plans than they knew in February 1970. What had changed, in the interim, was the position of Bethlehem City officials. This shift was apparently the result of PennDOT's agreement to widen the access area beneath the highway in accordance with the City's demands. On April 14, 1970, the Deputy Secretary of PennDOT forwarded to FHWA's Pennsylvania division a copy of a resolution of the Bethlehem City council in support of the I-78 route through Saucon Park, and renewed the request for federal approval.On May 22, 1970, the Federal Highway Administrator submitted to Secretary Volpe a second "action document," again recommending that a favorable § 4(f) determination be made to permit the taking of Saucon Park. The discussion of alternatives to PennDOT's proposed route was essentially unchanged. New Emphasis was placed upon the fact that the mayor and city council of Bethlehem had agreed to support the State's plans, and a copy of the city council's resolution was attached. On June 23, 1970, the Secretary approved the use of Saucon Park for I-78. Having thoroughly reviewed the administrative record that was before Secretary Volpe when he granted § 4(f) approval in this case, I reach the unavoidable conclusion that federal decision makers deferred totally to the views held at the state and local levels. Complete reliance was placed on the "bottom line" conclusions of planning studies performed by or for PennDOT. If there was any independent federal scrutiny of the I-78 parklands issue, or any federal review of the assumptions and analytical methods employed in the State's supporting documentation, it cannot be discerned from the administrative record, nor from the wider record of the present action. The concurrence with the State's position by federal officials throughout the review process, given easily and unquestionably, interrupted only by the objections of local leaders and readily renewed upon word of local acceptance, reinforces my conclusion that the Secretary did not appreciate the responsibilities required of him by Congress in enacting § 4(f) of the Department of Transportation Act. Congress intended that the Secretary should not limit his consideration to information supplied by state and local officials, but rather should look beyond this information and reach his own independent decision. Citizens to Preserve Overton Park, supra, at 412, ftn. 28. The Court of Appeals for the Third Circuit has made it clear that while the Secretary may defer to the opinion of local officials on the question of whether publicly owned land qualifies as a public park, recreation area, or wildlife refuge, once it is determined that the area is parkland the Secretary may not rely upon a local preference as to its use. Pennsylvania Environmental Council, Inc. v. Bartlett, 454 F.2d 613, 622 (3d Cir 1971). The Fifth Circuit has stated the law succinctly in a passage quoted with approval in the Third Circuit's Bartlett opinion: "The question, therefore, is whether Congress intended to leave the choice between parks of local significance and federal-aid highway to local authorities; or whether Congress, in passing § 4(f), has already made the choice between the two uses. Only one construction fairly can be given to § 4(f), and that is that Congress itself has made the choice between the two uses. Clearly, Congress did not intend to leave the decision whether federal funds would be used to build highways through parks of local significance up to the city councils across the nation. If there was any doubt about this question before Overton Park, there most assuredly is no longer any doubt." Named Individual Members of the San Antonio Conservation Society v. The Texas Highway Commission, 446 F.2d 1013, 1026 (5th Cir. 1971). Some courts and commentators have read the Supreme Court's Overton Park decision to mean that the preference of local officials cannot properly be given any weight by the Secretary in making his § 4(f) determinations. Citizens to Preserve Overton Park, Inc. v. Volpe, 335 F. Supp. 873 (W.D. Tenn. 1972) (on remand from Supreme Court); "the Supreme Court, 1970 Term," 85 Harv. L.Rev. 315 (1971). While this may or may not be the implicit holding of the Supreme Court's decision, the facts of this case leave no doubt that the weight given to the positions of state and local officials was so great, and the extent of independent federal input so minimal, that the § 4(f) determination was inadequate. Defendants argue that, whether or not Secretary Volpe correctly construed his statutory authority in approving the route through Saucon Park, his § 4(f) determination was and is supportable when measured against the standards of Overton Park. In defendants' view, this Court can avoid the necessity of remanding the case to the Secretary for his reconsideration if it finds that the record reasonably supports the § 4(f) approval of the proposed southern bypass, even when the correct legal standard is applied. If, on the recond of this case, the Secretary of Transportation could not reasonably decide that there was a feasible and prudent alternative to the use of Saucon Park for the I-78 route, no purpose would be served by a remand. But this is not such a case. While the evidence does not conclusively rule out a reasonable finding that there was no feasible and prudent alternative, neither does it rule out a reasonable finding to the contrary. In this situation, the case must be remanded to the Secretary for his decision. "It is also familiar appellate procedure that where the correctness of the lower court's decision depends upon a determination of fact which only a jury could make but which has not been made, the appellate court cannot take the place of the jury. Like considerations govern review of administrative orders. If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment. For purposes of affirming no less than reversing its orders, an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency." Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 88 (1942). This principle was recognized and adhered to by the District Court hearing the Overton Park case on remand from the Supreme Court. Noting that the statute directs that the Secretary, exercising expertise, make the determination of whether there is a feasible and prudent alternative, that Court concluded: "If this reviewing court refused to remand, even though the Secretary had applied an incorrect standard, simply because, on the record, he could have, applying the correct standard, within reason approved the park route, we would thereby substitute our judgment for his in applying the statute." Citizens to Preserve Overton Park, Inc. v. Volpe, 335 F. Supp. 873, 880 (W.D. Tenn. 1972). Since this case must be remanded to the Secretary for his reconsideration, there is no need to decide whether Secretary Volpe's § 4(f) approval was based on a record that apprised him of all factors relevant to that determination. On remand, the record for purposes of the Secretary's review should include the impact statements for both the Eastern and Western Parts of the southern bypass, the draft Continuing Environmental Evaluation Document, and all comments thereon and criticisms thereof elicited upon the circulation of those impact statements. In conformity with the views expressed in this Opinion, an Order will be entered granting summary judgment in favor of defendants on plaintiffs' claim based on 23 U.S.C. § 134, granting partial summary judgment in favor of defendants on plaintiffs' claim based on 23 U.S.C. § 138, and remanding this case to the Secretary ofTransportation for reconsideration of the § 4(f) determination to be made in connection with the taking of Saucon Park for I-78. AND NOW, this 25th day of April, 1974, for the reasons set [4 ELR 20545] forth in the accompanying Opinion, it is ORDERED: 1. That plaintiffs' motion for summary judgment on the cause of action stated in paragraph 45 of the Complaint, based on § 102(2)(c) of the National Environmental Policy Act, is hereby DENIED. 2. That plaintiffs' motion for summary judgment on the cause of action stated in paragraph 50 of the Complaint, based on 23 U.S.C. § 134, is hereby DENIED, and summary judgment in favor of defendants on that cause of action is hereby GRANTED. 3. That plaintiffs' motion for summary judgment on the cause of action stated in paragraphs 48 (with the exception of 48(e) and 49 of the Complaint, based on 23 U.S.C. § 128, is hereby DENIED, and summary judgment in favor of defendants on that cause of action is hereby GRANTED in part. New public hearings on the Western Part of the proposed Southern Bypass need only be held by PennDOT if, under the standard set forth in the Opinion, new information contained in the final Impact Statement so requires. 4. That plaintiffs' motion for summary judgment on the cause of action stated in paragraph 47 of the Complaint, based on § 4(f) of the Department of Transportation Act of 1966 and 23 U.S.C. § 138, is hereby GRANTED. This case is hereby remanded to the Secretary of Transportation for reconsideration of the § 4(f) determination to be made in connection with the taking of Saucon Park for I-78. 5. That, until the Secretary has reconsidered the § 4(f) determination to be made in this case, PennDOT shall abide by its agreement not to take further steps towards the design or construction of I-78, except insofar as necessary to comply with this Order and applicable statutory requirements; and that, thereafter and until the issues not disposed of herein are adjudicated, PennDOT give notice to the Court and all parties to this action at least fourteen (14) days in advance of taking such further steps towards the design or construction of I-78. 4 ELR 20534 | Environmental Law Reporter | copyright © 1974 | All rights reserved |