# THE NATURAL LAWYER

## TRANSPORTATION RESEARCH BOARD

**COMMITTEE ON ENVIRONMENTAL ISSUES IN TRANSPORTATION LAW (A4006)**

VOLUME 8, NUMBER 4 RICHARD CHRISTOPHER, EDITOR

JULY, 2000 312/793-4838 PHONE

312/793-4974 FAX

E-MAIL [ChristopherRA@nt.dot.state.il.us]{.underline}

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**SUPREME COURT GRANTS *CERTIORARI *IN THE AMERICAN TRUCKERS' LITIGATION
AGAINST EPA's AIR QUALITY RULES;**

** WILL COST-BENEFIT ANALYSES NOW BE REQUIRED?**

Submitted by Scott Biehl, Assistant Chief Counsel, FTA

Phone: 202/366-4063

Faithful readers of *The Natural Lawyer *will recall the surprise among
academicians, environmentalists, air quality regulators and
transportation practitioners in May, 1999 when the U.S. Court of Appeals
for the D.C. Circuit struck down the tighter national ambient air
quality standards for ozone and small particulate USEPA had promulgated
two years earlier. In short: The Court of Appeals revived a case law
doctrine that had been dormant for fifty years-the doctrine of
*nondelegable duties-*in ruling that Congress cannot vest a regulatory
agency with inherently legislative powers absent an explicit set of
"intelligible principles" by which the agency can fashion a rulemaking.
[American Trucking Association v. EPA, ]{.underline}1999 USApp. LEXIS
9064. The ruling sent shivers beyond the environmental sector to all of
the executive branch in threatening the Congressional practice that has
given agencies wide discretion for protecting public health, safety, and
welfare under broad statutory mandates; a practice that began in earnest
with the Great Society initiatives of the Johnson administration and had
been upheld in several decisions of the Warren court.

Thus, for a moment, regulators and environmentalists were pleased when,
this past month, the US Supreme Court granted the Government's petition
for a writ of *certiorari *to review the [American Trucking
]{.underline}case. They took it as an omen that the high court is
prepared to reverse the DC Circuit, uphold the EPA's clean air rules,
and perhaps nip in the bud any resurgence of the *nondelegable duties
*doctrine. The elation was short-lived, however. Just a few days later,
the Supreme Court announced it would expand the writ of *certiorari * to
entertain the issue the truckers posited in the cross-appeal: whether
EPA must consider the *costs of compliance *in conducting a rulemaking,
as opposed to measuring only the expected *benefits *of that rulemaking.
Thus, the door has been opened to hear argument on a fundamental
objection to the 1990 amendments to the Clean Air Act: that the statute
and the regulations thereunder go far beyond what is needed to protect
the public health.

Lower court rulings dating back to 1980 interpreted earlier versions of
the Clean Air Act to prohibit EPA from weighing compliance costs when
setting the National Ambient Air Quality Standards (NAAQS). Only later
in the rulemaking process, once the NAAQS were established, could EPA
measure industries' costs to comply with NAAQS. Robin Conrad, counsel to
the US Chamber of Commerce, believes that a favorable ruling by the
Supreme Court in the [American Trucking ]{.underline} case could compel
EPA to make principled decisions on air quality, and prevent
codification of unneeded and infeasible NAAQS. The Chamber of Commerce,
National Association of Manufacturers, and the States of Michigan, Ohio
and West Virginia joined the American Trucking Association both in the
litigation below and the *certiorari *petition. (All three states are
home to tall smokestack industries.)

Conversely, Vickie Patton, counsel to the Environmental Defense Fund, is
aghast. "It's been a bedrock principle of the Clean Air Act that the
amount of pollution allowed in the air should depend on how it affects
the health of our children and the elderly...A decision by the \[Supreme
Court\] to change the long-standing clean air policy would tip the
scales away from public-health concerns and toward the economic concerns
of major polluters." Two states-Massachusetts and New Jersey-joined the
Government and environmentalists both in the litigation below and the
Government's *certiorari *petition. (Both states claim to be victims of
the high-smokestack emissions that float to the Northeast from the
Midwest.)

Likewise the *Washington Post *is concerned by the Supreme Court's grant
of *certiorari *. In its 5 June 2000 editorial, the paper opined that
"industry groups are right that society needs to consider the costs as
well as the benefits of regulation. But as a practical matter, more such
accounting already occurs than some of the rhetoric surrounding the
issue would suggest. In the case of clean air, only the first
decision-at what point does pollution begin to threaten health?-is
supposed to be made without regard to cost. Surely that's reasonable.
Even that decision will in the end be partly political and economic. The
science in these matters can take the regulators only so far."

The two petitions for *certiorari *in [American Trucking
]{.underline}(No. 99-1257 &1426) will be argued together next fall. The
Supreme Court is expected to rule next year.

**SUPREME COURT GRANTS *CERTIORARI * IN**

** WETLAND MIGRATORY BIRD RULE CASE**

Submitted by Russell Eggert at Mayer, Brown & Platt

Phone: 312/701-7350

The Clean Water Act gives the US Army Corps of Engineers jurisdiction
over the dredging and filling of "navigable waters," which the statute
defines as "waters of the United States." The Corps has extended its
authority under the Clean Water Act to intrastate waters and wetlands
"the use, degradation or destruction of which could affect interstate
commerce" (33 CFR 328.3(a)(3)(1998)) and to intrastate waters "which are
or could be used as habitat" by migratory birds which cross state lines
or are protected by migratory bird treaties (51 *Fed. Reg.
*41,206,41,217(Nov. 13, 1986)("migratory bird rule")). The Supreme Court
granted *certiorari *in *Solid Waste Agency of Northern Cook County v.
United States Army Corps of Engineers, *No. 99-1178, to determine
whether the Corps, consistent with the Clean Water Act and the Commerce
Clause of the US Constitution, may exercise jurisdiction over isolated
intrastate waters solely because those waters do or potentially could
serve as habitat of migratory birds.

The Solid Waste Agency of Northern Cook County ("SWANCC"), formed by 23
Cook County, Illinois municipalities, purchased a 500-acre-plus site to
construct an urgently needed balefill facility to dispose of
non-hazardous municipal waste for the approximately 700,000 people who
live in its member communities. SWANCC's plans called for filling some
17 acres of permanently or seasonally wet depressions left by earlier
strip mining operations. After twice informing SWANCC that it had no
jurisdiction, the Corps abruptly changed its mind, relying solely on its
so-called "migratory bird rule." Because the Corps asserted
jurisdiction, SWANCC was required to apply for a permit to fill the
waters on the site pursuant to Section 404 of the Clean Water Act, which
the Corps denied.

SWANCC brought suit, challenging the Corps' assertion of jurisdiction.
SWANCC agrued that the Corps' exercise of jurisdiction over intrastate
waters simply because they serve as habitat for migratory birds exceeds
its statutory authority under the Clean Water Act and violates the
Commerce Clause. The district court and Seventh Circuit rejected both
arguments in published opinions. *Solid Waste Agency of Northern Cook
County v. United States Army Corps of Engineers, *998 F. Supp. 946,
(N.D.Ill 1998), aff'd, 191 F.3d 845(7^th^ Cir. 1999). The Seventh
Circuit held that the scope of the Clean Water Act "reaches as many
waters as the Commerce Clause allows" and that the Commerce Clause was
satisfied even though the Corps made no showing that the use of SWANCC's
balefill site by migratory birds had any effect on interstate commerce.
The Court concluded that "destruction of the natural habitat of
migratory birds in the aggregate 'substantially affects' interstate
commerce" because "millions of people annually spend more than a billion
dollars on hunting, trapping, and observing migratory birds," including
by "trave\[l\] across state lines." 191 F.3d at 850-51.

The Seventh Circuit's decision is at odds with the position of the
Fourth Circuit, which struck down the Corps' attempt to regulate
isolated intrastate waters in *United States v. Wilson, *133 F. 3d 251
(4^th^ Cir.1997). The Fourth Circuit's opinion rejected the Corps'
jurisdictional reach on both statutory and constitutional grounds, and
conflicts not only with the Seventh Circuit's decision in *Solid Waste
Agency, *but also with the Ninth Circuit's decision in *Leslie Salt Co.
v. United States, *55 F. 3d 1388 (9^th^ Cir. 1995)(upholding migratory
bird rule).

## FHWA WINS TWO CASES IN MINNESOTA

Submitted by Glenn Harris, FHWA

Phone: 708/283-3559

**(1) **In a case filled with emotional unrest, the United States
District Court in Minnesota ruled in favor of the Federal and State
defendants' motion in opposition to plaintiffs' motion for preliminary
injunction on January 24, 2000.

The plaintiffs in this matter sought to enjoin the defendants from
widening County State Aid Highway One in Eden Prairie, Minnesota.
Plaintiffs argued that the defendants violated NEPA by improperly
issuing a FONSI on the project and by not requiring an EIS.
Specifically, plaintiffs claimed: (1) lack of sufficient public input;
(2) flawed noise tests and modeling; (3) flawed analysis of noise
abatement measures; and (4) no consideration of regional land use
policies against urban sprawl.

The Court ruled that the defendants carefully addressed each of the
plaintiffs' concerns

during the NEPA process. As a result, the court held that plaintiffs
failed to establish their

burden of proof to prevail in their request for injunctive relief.
Plaintiffs withdrew their Complaint, and the case was dismissed.
*Pioneer Trail v. USDOT, et al.*

**(2) **The United States District Court in Minnesota issued an order on
March 10, 2000 in favor of FHWA's motion for summary judgement.

The plaintiffs in this case wanted the defendants to prepare a
supplemental EIS for the Highway 55 expansion project in Minneapolis.
Plaintiffs request suggested a SEIS was necessary because of new
information regarding potential harm to a number of endangered species,
several sacred sites, and a possible Native American burial site. The
defendants denied plaintiffs' request for a SEIS and issued a response
addressing each of plaintiffs' concerns. Dissatisfied with the response,
plaintiffs filed an action in federal district court alleging violations
of (1) NEPA; (2) The Native American Graves Protection and Repatriation
Act; (3) The National Historic Preservation Act; (4) The Clean Water
Act;(5) The American Indian Religious Freedom Act, and (6) 42 USC 1983.

The court ruled that the defendants' response to plaintiffs' request was
carefully crafted and painstakingly addressed each contention regarding
the historical, archaeological, cultural and environmental impacts of
the project. As a result, the court held that plaintiffs' statutory
claims lacked sufficient evidentiary support to raise a triable issue of
fact. *Anderson v. Babbitt, et al. *

**KU KLUX KLAN ADOPTS MISSOURI HIGHWAY**

Submitted by Paula Lambrecht, Missouri HTC

Phone: 573-526-4096

On March 31, 2000 a three judge panel from the Eighth Circuit Court of
Appeals affirmed the trial court and found Missouri Dept. of
Transportation (MoDOT) had unconstitutionally denied the Ku Klux Klan's
(Klan) application to participate in the Adopt-A-Highway program. The
court found MoDOT's decision to deny the Klan's application was based on
the Klan's views. Although both MoDOT and the Klan had extensively
briefed and argued First Amendment forum issues, the court's opinion did
not discuss whether the Adopt-A-Highway program or the right-of-way was
a forum. Instead, the decision stated that whether the Klan's claim
arose under the equal protection clause (an alternative claim the Klan
brought in addition to its First Amendment claim) or the First
Amendment, a state may not deny the Klan access based on the Klan's
views. The Court struck down, as invalid and/or pretextual, all of
MoDOT's reasons for denial including: (1) MoDOT's regulations prohibited
participation to any applicant who unlawfully discriminates; (2) MoDOT's
regulations prohibited participation to any applicant with a history of
unlawfully violent and criminal behavior; and (3) MoDOT would violate
Title VI, and potentially lose federal funds, if it allowed the Klan to
participate.

As to MoDOT's first reason, the decision stated no federal or state law
had been cited prohibiting a group from having restrictive, or
discriminatory, membership criteria. In disposing of MoDOT's second
reason, the court cited the fact that no other applicant had been
questioned or investigated regarding their criminal history and found
this regulation was intended to target the Klan. The Court's analysis of
MoDOT's Title VI argument concluded that Title VI does not apply to the
Klan since it is not a direct recipient of federal funds. As to whether
Title VI prohibited MoDOT from allowing the Klan to participate, the
court found that allowing the Klan to participate doesn't preclude other

groups from adopting other stretches of highway so that MoDOT wouldn't
violate Title VI in granting the Klan's application.

MoDOT filed a petition for rehearing with suggestions for rehearing *en
banc * on April 14, 2000. On April 24, the court requested the Klan file
a brief addressing MoDOT's petition. No ruling had been issued on the
rehearing as of May 9, 2000. The Eighth Circuit decision can be found at
*Cuffley, et.al. v. Mickes, et al., *208 F.3d 702, 2000 W.L.336668
(8^th^ Cir. 2000).

**DELISTING ON STATE REGISTER DOES NOT KEEP PROPERTY OFF NATIONAL
REGISTER OF HISTORIC PLACES**

This is not a transportation case, but it bears noting because of the
fact pattern that may be familiar to many readers who have encountered
controversial listings of historic property. In 1993 a group of property
owners were opposed to an organic farm and composting facility. They
filed a petition to have the hamlet where the composting facility was
located listed on the New York State Register of Historic Places. After
the state board in charge of listing voted unanimously to list the
hamlet, the nomination was forwarded to the Keeper of the National
Register of Historic Places. The property was so listed shortly
thereafter. Meanwhile the owners of the composting facility filed suit
in state court and had the state listing thrown out for failure to
comply with notice procedures. The owners then went back to the state
board and asked them to forward their petition to the Keeper for
delisting. The state board sent the petition on to the Keeper but did
not recommend delisting. The Keeper decided that the procedural problems
did not affect the property's historic qualities and denied the
petition. The state board then failed to muster enough votes in 1995 to
renominate the site to the state register, but listing is automatic if
the property is listed on the National Register. The US District Court
overturned the Keeper's listing because of the improper state listing
which preceeded it. On appeal, the 2^nd^ Circuit reversed. The Court
ruled that the Keeper had independent authority to determine the
historic value of the site and was not bound by the state board. The
Court relied on two highway cases, the *Stop H-3 *decision in 1976 and
the *Named Individual Members of the San Antonio Conservation Society
*case, as authority that the Federal agencies are not bound by local
determinations of significance. The Court went on to hold that the
Keeper's decision was not arbitrary and capricious and did not violate
the owners' due process rights. *Moody Hill Farms Limited Partnership v.
US Dept. of the Interior, National Parks Service, *205 F. 3d 554 (2^nd^
Cir. 1999)

**NEW HIGHWAY INTERCHANGE NOT ELIGIBLE FOR CATEGORICAL EXCLUSION**

After Washington State DOT prepared a freeway access report which called
for a new interchange, a documented categorical exclusion was processed.
None of the studies showed significant impact so the categorical
exclusion was approved by FHWA. A local citizen brought suit in the US
District Court claiming that an EA or EIS should have been prepared.
After he lost, he brought an appeal. The 9^th^ Circuit ruled against
FHWA and Washington State DOT. First the Court ruled that even though
Phase ! was already constructed, the suit was not moot because
additional mitigation could come from additional study. The Court went
on to find that the portion of the project that was already built was a
great deal more than a change in access control and went past the
examples in FHWA's NEPA regs on what was appropriate for a categorical
exclusion. The Court also disapproved of the use of a categorical
exclusion for Phase 2 which was not clearly defined and was not even
funded for future construction. *West v. Secretary of the Dept. of
Transportation, et al., *206 F. 3d 920 (9^th^ Cir. 2000)

**TMDL's APPROPRIATE FOR STREAM POLLUTED ONLY BY NONPOINT SOURCES**

Case supplied by Russell Eggert at Mayer, Brown & Platt

Phone: 312/701-7350

The State of California listed the Garcia River as one of the streams
for which existing controls had not achieved the state water quality
standards. This meant that discharges of pollutants would have to be
allocated among the entities which were responsible for the violations.
A landowner sued because the river had only been polluted by nonpoint
sources from logging operations and was therefore not within the scope
of Congress intent in Section 303(d) of the Clean Water Act. The US
District Court ruled that even though Congress had not referred
specifically to nonpoint sources in Section 303(d), the allocation
program was not going to achieve the desired result if certain streams
were exempted because they had no point source discharges. The Court did
not allow USEPA to review the land use restrictions which would be
necessary to achieve compliance because this involves land use control
which is in the State's domain. An appeal is pending. *Pronsolino v.
Marcus, *91 F.Supp. 2d 1337 (N.D.Cal. 2000)

A similar result on the limits on EPA's ability to insist on state land
use practices to regulate nonpoint source water pollution was decided in
*American Wildlands v. Browner, *94 F. Supp. 2d 1150 (D. Colo. 2000). In
that case, EPA was allowed to approve a Montana water quality standard
which exempted existing activities which are nonpoint sources from its
antidegradation policy. Once again, to rule otherwise would put EPA in
the business of reviewing state land use practices.

**COMMERCIAL BUSINESS SITE OPERATING PURSUANT TO CONDITIONAL USE NOT
SUITABLE C/I AREA FOR OUTDOOR ADVERTISING**

Once the Missouri HTC found out that a billboard site was not zoned
commercial or industrial, the billboard permits were revoked. The
applicant applied for a rezoning of the property but was denied by the
county. Court action followed. Both the trial and appellate courts held
against the billboard owner. The state billboard law allowed signs in
areas zoned "industrial, commercial or the like," and this area was
zoned agricultural. The conditional use for this site only allowed
specific commercial activity so it could not be expanded to include
outdoor advertising. *State ex rel. Straatman Enterprises, Inc., et al.,
v. County of Franklin, et al., *4 S.W.3d 641 (Mo. App. 1999).

**"SAVE OUR VALLEY" DRAWS A NEW LINE OF TITLE VI/ENVIRONMENTAL JUSTICE
LITIGATION AGAINST LIGHT RAIL IN SEATTLE**

Submitted by Scott Biehl, Assistant Chief Counsel, FTA

Phone: 202/366-4063

The Central Puget Sound Transit Authority ("Sound Transit") is planning
a 23-mile "LINK" light rail line to run north-south through metropolitan
Seattle, from the Northgate district to the City of Sea-Tac below
Sea-Tac International Airport. Following completion of an EIS last year,
the Federal Transit Administration issued a Record of Decision for LINK
this past January. Currently, FTA and Sound Transit are negotiating a
Full Funding Grant Agreement whereby FTA would provide \$500 million in
capital new starts funds for a minimum operable segment of LINK
("MOS-1"): a 7.2 mile stretch from the University of Washington to the
central business district. Sound Transit intends to break ground this
fall.

Several portions of the 23 mile alignment will be tunnelled; several
other portions will be elevated. Approximately half the alignment will
run at grade, on municipal streets, including a 4.5 mile stretch along
Martin Luther King, Jr. Boulevard in Rainier Valley: a community
comprised largely of minority and low-income residents that lies
southeast of MOS-1 and downtown Seattle.

On April 25, 2000 "Save Our Valley"-a non-profit organization comprised
of residents and business owners in Rainier Valley-brought suit against
Sound Transit and FTA in US District Court in Seattle seeking to enjoin
design, construction and funding for LINK, alleging violations of Title
VI of the Civil Rights Act; the Fair Housing Act. 42 USC 1981-1983; and
NEPA. *Inter alia:*

· Save Our Valley alleges that Sound Transit's decision to tunnel
beneath a number of white, affluent neighborhoods, while running at
grade through Rainier Valley, has the effect of imposing
disproportionately high and adverse safety hazards and environmental
impacts on residents of Rainier Valley, and a disproportionate number of
takings of homes and commercial properties;

· Save Our Valley alleges that Sound Transit will spend approximately
\$133 million per mile to tunnel various portions of the alignment but
only \$44 million per mile to run at grade through Rainier Valley, and
that this disparity in expenditures constitutes a denial of "equal
transit...opportunities" in violation of Title VI; and

· Save Our Valley alleges that Sound Transit intentionally misled the
public about the costs versus benefits of tunneling beneath Rainier
Valley and the feasibility of various alternative alignments.

Conversely, the crux of Sound Transit's position is two-fold: First,
that the hilly topography of greater Seattle dictates the need to tunnel
various portions of the alignment, given the inability of light rail to
traverse steep inclines-whereas Rainier Valley is one of the portions of
the alignment that is relatively flat. Second, that the experience of
the transit industry has been that at-grade light rail is preferable to
tunnel or aerial alignments for sake of urban renewal and economic
revitalization of low-income neighborhoods. Moreover, Sound Transit
maintains that the light rail will enhance vehicular and pedestrian
safety in the valley; that the construction impacts will be far fewer
with an at grade alignment; and cost-per-rider is basically the same
over the entire 23-mile system, given the high densities of ridership in
north Seattle.

Meanwhile Sound Transit and FTA face two additional, unrelated suits
against LINK. In the first, filed 15 May 2000, "Friends of the Monorail"
allege that "an extensive automated monorail system" would be better for
Seattle than light rail, and that the EIS gave inadequate study to the
desirability of that modal alternative. (Visitors to the Emerald City
will recall that a short, first generation monorail has been running
between the shopping district and the Space Needle since the World's
Fair in 1962.) In the second, by letter dated 2 May 2000 the "Citizens
for Mobility" served a 60-day notice of intent to sue under the Clean
Air Act, averring that LINK would create carbon monoxide "hot spots"
over downtown intersections and contribute to localized violations of
the national ambient air quality standards for small particulate.

**BROADSIDE FILED AGAINST CORPS OF ENGINEERS, FISH & WILDLIFE SERVICE
AND FHWA ON BEHALF OF FLORIDA PANTHER**

A coalition of national and Florida conservation groups have filed suit
to stop the Federal government from issuing any permits or approvals
which result in the loss of habitat for the panther. The Corps is
accused of issuing permits after no consultation with FWS or after an
erroneous "no jeopardy" opinion from FWS and/or without considering
cumulative or indirect impacts. FHWA is accused of approving specific
projects and the local MPOs' and Florida DOT's planning processes
without consulting with FWS. The suit asks for programmatic EIS's from
each affected agency and concerted action on behalf of the panther.
*National Wildlife Federation, et al. v. Caldera, et al., *D.D.C. \#
1:00CV01031, filed 5/9/00.

**FHWA CAN PARTICIPATE IN SOME COSTS INCURRED BY TRIBAL HISTORIC
PRESERVATION OFFICERS **

On April 14, 2000 the Chief Counsel of FHWA issued an opinion to the
FHWA Rhode Island Division that certain costs incurred by Tribal
Historic Preservation Officers (THPO's) who act on behalf of tribes
instead of State Historic Preservation Officers can be reimbursed by
FHWA. FHWA will only reimburse for those costs which are reasonable and
which are over and above general operating or overhead costs. There also
must be a MOU or written contract before the services are rendered. The
opinion recognizes that there will be instances when special oversight
is necessary by locally affected tribes in advance of and during
construction of federal-aid projects.

**COMMITTEE CHAIR'S CORNER**

Submitted by Helen Mountford, FHWA

[Helen.Mountford@igate.fhwa.dot.gov]{.underline}

At our July meeting in Minneapolis, Rich Christopher is heading a panel
on Compliance with Title VI of the Civil Rights Acts and Environmental
Justice. As many of you have noticed, issues surrounding Environmental
Justice are being raised with increasing frequency by project opponents,
so this will be an opportunity to delve into these issues in depth.

Our Committee will meet on Wednesday from 8:00 to 9:30 a.m. We will have
a short presentation/discussion on cumulative impacts, which is becoming
another hot issue. We will also discuss possible program topics for next
summer's meeting. Please bring your ideas.

We need new members. Please invite someone who might be interested in
joining us. And, we need a Secretary to take notes and prepare the
minutes for our meetings. Please call me at 415/744-2642 to volunteer.

**NEXT COPY DEADLINE IS SEPTEMBER 15, 2000**

Please submit your notes and articles for the October, 2000 *Natural
Lawyer *by 5:00 p.m. on Friday, September 15, 2000. If you use the mail,
send to Rich Christopher, Illinois DOT, 310 S. Michigan, Room 1607,
Chicago, IL 60604. If you use the FAX, send to 312/793-4974. E-mail is
available at [ChristopherRA@nt.dot.state.il.us]{.underline}.