NEPA: Ninth Circuit Orders Environmental Study of Completed Interchange
The U.S. Ninth Circuit Court of Appeals has ordered preparation of an environmental study on an already-completed freeway interchange in Washington state. On a 2-1 ruling, the three-judge panel said that the project was not exempt under the National Environmental Policy Act.
"While we decline to order the interchange torn down, we direct the district court to order the requisite environmental review …" the court concluded.
In 1985, the City of DuPont, between Seattle and Tacoma, identified the need for a new freeway interchange to serve a proposed Intel campus and a 3,200-acre, master-planned development proposed by Weyerhaeuser. Ten years later, the Federal Highway Administration granted preliminary approval for the South DuPont interchange subject to environmental review of the project. The state Department of Transportation planned a two-stage project. The first stage involved construction to allow access to the Weyerhaeuser project. Stage Two would entail a more complete interchange, rerouting of connector roads and reconstruction of an existing, nearby interchange.
The transportation department prepared environmental reports analyzing the effects on the Fort Lewis landfill (a former Superfund site), air quality, cultural resources and two endangered species. In April 1996, the state and the Federal Highway Administration (FHWA) released a joint environmental document that concluded there would be no significant environmental impact, and said they had satisfied the criteria for both a "documented categorical exclusion" under NEPA and a Notice of Nonsignificance under Washington's State Environmental Policy Act. Construction followed.
Arthur West, an attorney from Olympia, sued, claiming the project was not exempt from NEPA. District Court Judge Robert J. Bryan dismissed West's claims. When West appealed, Weyerhaeuser argued that the lawsuit was moot because Stage One of the project was in place. But the Ninth Circuit said the controversy was live. The court noted it could still order additional environmental review and even order "the interchange closed or taken down." Plus, Stage Two construction had yet to begin, noted the court, which then moved to the merits of the case.
West argued that the highway administration should have prepared an Environmental Impact Statement or an Environmental Assessment under NEPA, 42 U.S.C. §4332. But the state and federal agencies contended the project qualified for a documented categorical exclusion (DCE) because federal highway regulations list "approvals for changes in access control" as an example an exempt project.
The court said, "‘Approvals for changes in access control,' however, is not defined in the regulations, the legislative history, or case law." Judge Betty Fletcher continued, "None of the examples listed in the DCE regulations approaches the magnitude of this project — an entirely new, $18.6 million, four-lane, ‘fully-directional' interchange constructed over a former Superfund site and requiring 500,000 cubic yards of fill material, 30,000 tons of crush surfacing and 32,000 tons of asphalt concrete pavement. To the contrary, the other examples provided in 23 C.F.R. §771.117(d) suggest that the FHWA intends a very different scale of project to escape the more detailed environmental review that would occur in an environmental assessment."
"The FHWA regulations forbid the use of a categorical exclusion for projects that will have ‘significant impacts on travel patterns,'" Fletcher wrote. "The new South DuPont interchange was designed with the intent that it have significant impacts on travel patterns."
A fuller environmental review might identify mitigation measures that could still be implemented or could alter plans for State Two, which also must have further study, the court ruled.
In a dissent Judge Sidney Thomas said the case was moot. "The environmental damage of which Mr. West complains has been accomplished … No order of this Court can alchemize concrete and asphalt into blueprint," he wrote.
Thomas further said that the highway administration's interpretation of its own regulations was "not plainly erroneous" and, thus, should be upheld.
Arthur S. West v. Secretary of the Department of Transportation, No. 97-36118, 00 C.D.O.S. 2171, 2000 Daily Journal D.A.R. 2967, filed March 20, 2000.
For himself: Arthur West, Olympia, Washington.
For federal agencies: Brian Kipnis, Department of Justice, Washington, D.C.
For state agencies: Deborah Cade, assistant attorney general, Olympia.
For Weyerhaeuser: George Kresovich, Hillis, Clark, Martin & Peterson, Seattle.