# Presentation: 814826

## Section 4(f): A Legal Perspective

## Substantive v. Procedural

**Section 4(f)**
_** **__**is Substantive**_
- More than a process
- Requires a certain outcome

**NEPA **
_**is Procedural**_
- No specific outcome required
- Any alternative can, *in theory*, be selected

## Law - 49 U.S.C. § 303(c)

- The Secretary may approve a transportation program or project requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge, or land of an historic site of national, State, or local significance ... only if -
- there is no prudent and feasible alternative to using that land; and
- the program or project includes all                 possible planning to minimize harm ....

## Regulations - 23 CFR 771.135

- (a)(i) The Administration may not approve the use of land  from a significant publicly owned public park, recreation area, or wildlife and waterfowl refuge, or any significant historic site unless a determination is made that:
- (ii) There is no prudent and feasible alternative to the use of land from the property; and
- (iii) The action includes all possible planning to minimize harm  to the property resulting from such use.

## Case Law !

## Feasible and Prudent

*Citizens to Preserve Overton Park v. Volpe, *401 U.S. 402 (1971)
- The Supreme Court established a high standard for the “prudent and feasible” statutory language.

## Key Overton Park Language

- “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***.”

## Feasible 

- An alternative is not feasible
- only if “*as a matter of sound engineering*
-  it would not be feasible to build the
- highway along any other route.”

- Feasible = Technically Possible

## Prudent

*“*Unique” problems
- “Unusual” factors
- “Extraordinary magnitude”

## 23 CFR § 771.135(a)(2)

- “Supporting information must demonstrate that there are ***unique problems*** or ***unusual factors*** involved in the use of alternatives that avoid these properties or that the ***cost, social, economic, and environmental impacts, or community disruption*** resulting from such alternatives reach ***extraordinary magnitudes***.”

## Louisiana Environmental Society v. Coleman;537 F.2d 79  (5th Cir. 1976)The “law” in the 5th and 11th Circuits            (and essentially the 9th)

- The “Black Box” Test

**“****[A]ny park use, regardless of**
** ****degree, invokes 4(f).”**

## Stop H-3 Ass’n v. Coleman; 533 F.2d 434 (9th Cir.), cert. denied, 429 U.S. 999 (1976)

- Historic Sites

**If historic site is eligible for **
**National Register, locals cannot **
**declare site “insignificant.”**

## Timing of Determination

*Corridor H Alternatives, Inc. v. Slater; *166 F.3d 368 (D.C. Cir. 1999)
- -- FHWA’s Section 4(f) regulations do **NOT** allow the agency to postpone the final Section 4(f) determination until after issuance of the ROD.

## Extraordinary Magnitude 

- 31 residences, 1church, and 4 business relocations;
- Increased cost of $42 million ($386 million budget);
- Increased noise, air quality, and visual impacts to residences in the vicinity
**NOT**
- Community disruption of extraordinary magnitude

- Stop H-3 v. Dole; 740 F.2d 1442 (9th Cir. 1984),
- cert. denied, 471 U.S. 1108 (1985)

## Cumulative Drawbacks

*Eagle Foundation v. Dole;** *813 F.2d 798 (7th Cir. 1987)
- -- Said the Supreme Court was merely being emphatic in using word “unique.”

- “A prudent judgment by
- an agency is one that takes into account
- everything important that matters.”

## Eagle Foundation v. Dole

-  Court’s main holding became FHWA policy:
- “When making a finding that an alternative is not feasible and prudent, it is not necessary to show that any single factor presents unique problems.  Adverse factors such as environmental impacts, safety and geometric problems, decreased traffic service, increased costs, and any other factors may be considered collectively.”
- 				      FHWA Policy Paper

## Purpose and Need

*Arizona Past and Future Foundation v. Lewis; 772 F.2d 1423 (9th Cir. 1983)*

- “Alternatives that do not
- meet the purposes of the project may
- properly be rejected as imprudent.”

- An alternative that does not meet purpose and need is *de facto* imprudent.

## Programmatic Evaluations 

*Friends of the Pioneer Street Bridge v. FHWA; *150 F.Supp. 2d 637 (D. Vt. 2001)
- -- Upheld use of Nationwide Programmatic Agreement for Historic Bridges
- -- First (and only) case to involve use of a programmatic 4(f)

## Section 4(f) Evaluations

- No self-serving or unsupported statements in prudency determinations – For example
- -- “Avoidance Alt. A would not be prudent because it would cost too much.”
- -- “Avoidance Alt. B would not be        prudent because it would have         greater environmental impacts than        the Preferred Alternative.”

## The Eagle Foundation Method

- _Look at the cumulative effect of_:
-   Additional Costs
-   Social impacts
-   Economic impacts
-   Environmental impacts
-   Community disruption ....

## Remember Overton Park!

-   Unique problems
-   Unusual factors
- FHWA Website:
- http://www.environment.fhwa.dot.gov/projdev/pd5sec4f.asp