The Whittier Road case: the demise of Section 4(f) since Overton Park and its implications for alternatives analysis in environmental law.

• Author: Singer, Matthew
• Position: Citizens to Preserve Overton Park, Inc. v. Volpe, section 4(f

1. INTRODUCTION

   Whittier is a small town tucked into a cove in western Prince William Sound, Alaska. Originally a World War II military post, the town is now home to approximately 250 full-time residents. There is no road access to the little town, where all of the residents live in one military-era structure called the Begich Tower. During the summer months, Whittier is a popular destination for sport anglers, wildlife watchers, kayakers, and other tourists. The only connection between the town and the rest of the state is the Alaska ferry system and a twelve-mile railroad to Portage--a townsite forty-seven miles south of Anchorage that was leveled during the 1964 earthquake and is now one of the state's most popular recreation areas.

   In 1995, the Alaska Department of Transportation (ADOT) and Federal Highway Administration (FHWA) proposed the Whittier Access Project, which involved replacing the existing rail service with a new toll road linking Whittier to the Seward Highway south of Anchorage. The purpose of the Whittier Access project was, among other things, to provide greater capacity to meet projected demand for access and to build an improved transportation infrastructure capable of contributing to the state economy. The new road and a large parking lot would be constructed within Portage Glacier Recreation Area and Portage Lake Recreation Area; this is legally significant because building roads in parklands is prohibited by section 4(f) of the Department of Transportation Act of 1966 unless the Federal Highway Administrator finds that "there is no prudent and feasible alternative to using that land."(1) In response to this proposal, the Alaska Center for the Environment, other environmental groups, and wilderness tour operators (collectively referred to as "ACE") filed suit.(2) ACE challenged the agencies' Environmental Impact Statement and Section 4(f) Evaluation, in which FHWA concluded that there were no prudent and feasible alternatives to the proposed road because the avoidance alternatives would not meet the agencies' stated purpose and need for the project.(3) ACE argued that improving the existing rail service to Whittier was a prudent and feasible alternative to building a new road through the recreation areas.(4)

   The district court granted summary judgment to the defendant agencies, concluding that the agencies were not arbitrary and capricious in determining that the improved rail alternative was imprudent under section 4(f).(5) The Ninth Circuit affirmed the district court's ruling, upholding the agency decision that the rail alternative was imprudent because it would not meet the projected demand for travel to Whittier, and therefore did not meet the stated purpose and need for the project.(6) Although the Ninth Circuit ruling is inconsistent with the Supreme Court decision in Citizens to Preserve Overton Park, Inc. v. Volpe(7) and with existing Ninth Circuit law,(8) it joins a growing number of circuits that have abandoned the Overton Park standard in favor of greater deference to agency determinations about the feasibility and prudence of avoidance alternatives under section 4(f).

   In its 1971 Overton Park decision, the Supreme Court held that roads should not be constructed on parkland unless there are "truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes."(9) The Overton Park court interpreted the statute to mean that federal money is not to support highways through public parks unless avoidance alternatives present "unique problems."(10) The Court instructed judges to make a searching and careful review of agency decisions, to ensure that they were in compliance with the strict standard required by the statute.(11) Despite the Overton Park conclusion "that protection of parkland was to be given paramount importance,"(12) in recent years many courts have held that agencies did not need to demonstrate an avoidance alternative was imprudent if the alternative failed to meet the agency's stated purpose for the project.(13) In effect, this conclusion has sounded the death knell for meaningful consideration of alternatives under section 4(f). The implications for such analysis under the National Environmental Policy Act of 1969 (NEPA)(14) are equally grim. Rather than requiring agencies to demonstrate that there are truly unusual factors that make alternatives imprudent, the courts have allowed agencies to avoid the requirements of section 4(f) by drafting purpose and need statements that are so narrow as to preclude any alternative other than the proposed action. As a result, only one plaintiff has prevailed in a section 4(f) case since 1985.(15)

   This Chapter considers the demise of section 4(f) since Overton Park and the future of alternatives analysis under section 4(f) and other environmental laws in light of decisions like Alaska Center for the Environment (ACE) v. Armbrister.(16) Section II of the Chapter begins with a brief examination of the history of section 4(f), and then turns to the Supreme Court's decision in Overton Park. Section III discusses the result in ACE. The Ninth Circuit's conclusion in ACE, that an alternative is imprudent if it fails to meet the purpose of a project, ignored the standard established in Overton Park and adhered to in prior Ninth Circuit decisions:(17) that avoidance alternatives could be deemed imprudent only if the agency demonstrated truly unusual circumstances. Section IV examines the demise of section 4(f) in other circuits and the implications of this trend beyond section 4(f), as it relates to the alternatives analysis required by NEPA.(18) The Chapter concludes that if agencies are permitted to craft narrow purpose and need statements, knowing that the courts will not apply the careful and searching review required by Overton Park, then alternatives analysis will become process without meaning.

2. SECTION 4(F) AND OVERTON PARK

   1. Section 4(f) of the Department of Transportation Act

      In enacting section 4(f) of the Department of Transportation Act of 1966,m Congress declared that "special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands."(20) Congress hoped to achieve this national policy goal by creating two substantive mandates. First, Congress prohibited federal agencies from approving a transportation project that required use of a public park or recreation area unless there was no feasible and prudent alternative to using the parkland.(21) Second, a transportation project using parkland must include all possible planning to minimize harm to the parkland.(22)

      In addition to the substantive protection that section 4(f) created for the nation's parkland, the statute is significant because it is the grandfather of alternatives analysis in modern environmental law. By permitting construction of highways on parkland only in the absence of a feasible and prudent alternative, section 4(f) forced FHWA to look for less environmentally harmful means to accomplish transportation goals. The notion that an agency must first examine alternatives to a proposed action when scarce natural resources are at stake became a fundamental tenant of environmental law with the passage of NEPA(23) three years after Congress enacted section 4(f). NEPA requires federal agencies to prepare an environmental impact statement (EIS) for every major federal action that will have a significant impact on the environment.(24) The EIS must include an analysis of a reasonable range of alternatives to the proposed action and a discussion of the likely environmental impacts of each alternative.(25) Consideration of alternatives is now a basic theme in most environmental laws,(26) including the Clean Water Act,(27) Clean Air Act,(28) Endangered Species Act,(29) and Coastal Zone Management Act.(30)

   2. Citizens to Preserve Overton Park, Inc. v. Volpe

      The first significant judicial interpretation of 4(f) came in Citizens to Preserve Overton Park, Inc. v. Volpe,(31) where the Supreme Court overturned the Secretary of Transportation's approval of a six-lane expressway through a park in the center of Memphis, Tennessee. The Court determined that section 4(f) is "a plain and explicit bar to the use of federal funds for construction of highways through parks--only the most unusual situations are exempted.(32) Because concern for costs and community disruption would in most cases encourage use of parkland instead of private land, the Court held that exceptions to section 4(f) would be granted only when the Secretary of Transportation (Secretary) could show there were truly unusual factors demonstrating that the rejected alternatives would "present unique problems" or require costs or community disruption of "extraordinary magnitudes."(33)

      Overton Park was a 342-acre park in downtown Memphis.(34) The park consisted of a zoo, municipal golf course, outdoor theater, nature trails, bridle path, art academy, picnic areas, and 170 acres of forest.(35) Since the early 1950s, the Department of Transportation (DOT) planned to construct Interstate 40 across the Mississippi River at Memphis, bisecting Overton Park.(36) The proposed highway was to be built below ground level except where it crossed a small creek,(37) and the new expressway would sever the zoo from the rest of the park.(38) A small but active group of Memphis citizens formed Citizens to Preserve Overton Park to oppose the siting of Interstate 40 through the park(39) This group sued the Secretary of Transportation, arguing in part that it would be feasible and prudent to route Interstate 40 around Overton Park to the north or south or to tunnel under the park.(40)

      The district court rejected the plaintiff's argument and granted summary judgment to the Secretary.(41) The Court of Appeals for the Sixth Circuit affirmed.(42) The Supreme Court then reversed, in what has...