alia, impacts on wetlands that cannot be mitigated and the use of Public Recreation Areas.
Additionally, the Corridor Analysis Document states that these alternatives present possible
contact with hazardous waste sites, potential engineering problems due to current grades and
other socioeconomic factors. See id, After analyzing the potential impacts of each alternative,
the Corridor Analysis Document concludes that there are no prudent and feasible alignments
which could avoid or mitigate these adverse impacts. See id,

Conversely, the Corridor Analysis Document determines that the Bolz Bridge Project is
not likely to present any major issues under Section 4(f) or NEPA. See FHWA 2208-12. Asa
result, it recommends that only the Bolz Road corridor advance for further study, thereby
declaring that the other three alternatives in the North Region are not prudent or feasible given
the purpose and need for the project. See id.

Based on this information, the FHWA was satisfied that the Bolz Road corridor, with its
proposed alignments, was the only reasonable alternative for the North Region. This is all that

NEPA requires. See Concerned Citizens Alliance, 176 F.3d at 706 (concluding that NEPA

allows agencies to exclude from further study alternatives that were examined and rejected for
not meeting the project's goals). Additionally, Plaintiffs have not offered any evidence
suggesting that these alternatives, or any others, could better fulfill the purpose of the project
with causing less harm to the environment. See Morongo Band of Mission Indians v. Federal
Aviation Administration, 161 F.3d 569, 576 (9th Cir. 1998) (indicating that the burden is on the
party challenging the agency action to offer feasible alternatives when not satisfied with the
alternatives chosen for study). Therefore, after reviewing the analysis of reasonable alternatives

in the Final EIS, which references the analysis contained in the Corridor Analysis Document, the

19


methodology available. See Highway J Citizens Group, 349 F.3d 960 (citing that the court only
reviews the sufficiency of the agency’s consideration of the issues, not its substantive judgment);
see also Sierra Club v. Marita, 46 F.3d 606, 621 (7th Cir. 1995) (stating that agencies are entitled
to use their own methodology provided it is rational). The court is only to determine whether
Defendants thoroughly considered the impact the proposed project would have on these air
quality levels, Seg Laguna Greenbelt, Inc, 42 F.3d at 526.

After analyzing the issues, the Final EIS concludes that the overall project is in
compliance with a state and federal air quality statutes. See FHWA 8594-95. Because one of
the objectives of the proposed project is to relieve traffic congestion within the region, adverse
impacts on air quality were determined to be positive, rather than negative. Thus, based on the
numerous studies conducted over a period spanning more than ten years, Defendants concluded
that the adverse impacts on air quality were not significant. See FHWA 8536. Applying the rule
of reason approach, the analysis presented in the Final EIS was reasonably thorough under the
circumstances and NEPA has been satisfied. See Highway J Citizens Group, 349 F.3d 960; see
also City of Los Angeles, 138 F.3d at 808, Therefore, the FHWA’s decision approving the Final
EIS, with respect to air quality, was not arbitrary or capricious. See Citizens Against Burlington,
938 F.2d at 201.

3. Socioeconomic Impacts

Plaintiffs also argue that the Final EIS does not adequately discuss the socioeconomic
impacts associated with the construction of the Bolz Bridge project. Essentially, Plaintiffs make
two arguments on the issue. First, Plaintiffs contend that Defendants did not seriously consider
the impact the project would have on the Fox View Apartment Complex (“Fox View”), which is
located to the south the proposed alignment, Fox View is subsidized with Section 8 federal

13


«

IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Summary Judgment is DENIED;

Defendants’ Motions for Summary Judgment are GRANTED.

LUarte’,

CHARLES RONALD NORGEE, Judge
United States District Co’

IT IS SO ORDERED.

DATED: (FO Oe :

23


based on several factors, including that the common goal was to provide for projected significant
increases in east-west traffic volumes across the Fox River. These increases were due to
residential expansion into western Kane County and economic growth in eastern DuPage
County. Upon making this determination, FHWA directed KDOT to evaluate twelve Toadway-
bridge corridors as part of the EIS for the bridge project. KDOT eventually reduced their
evaluation from twelve corridors to five.

On November 1, 2001, Defendants issued the Final Environmental Impact Statement and
Section 4(f) Evaluation (“Final EIS”). The Final EIS divided the analysis of the five proposed
corridors into three regions-North, Central and South. Of the five proposed corridors, the Final
EIS recommended the construction of three. At issue in this case is the corridor recommended
for construction in the North Region, defined as bounded by McHenry County on the North and
Interstate 90 on the south. This project is commonly referred to as the Bolz Road corridor
(hereinafter “The Bolz Bridge Project”)

On May 13, 2002, the Division Administrator of the FHWA issued its Record of
Decision (“ROD”) approving the Final EIS. The ROD states that the “build alternatives” for the
three bridge crossings recommended in the EIS: (1) best satisfied the purpose and need
developed for the study; (2) posed the least impact to the natural and human environment; (3)
had been selected based on processes in compliance with NEPA and other applicable
requirements; and (4) remained eligible for Federal Highway funding. As a result, FHWA
determined that Kane County, as project sponsor, could advance each crossing through the

project development process.

2Plaintiffs’ Complaint does not address the adequacy of the Final EIS with respect
to the corridors proposed for the Central and South Regions.

4



court finds that the discussion is sufficient under the circumstances, and the FHWA’s decision to
issue the ROD was not arbitrary and capricious.
D. Section 4(f) of the Transportation Act

Section 4(£) of the Transportation Act requires that the FHWA take “certain measures if
it determines that a transportation project will ‘use’ natural and historic resources protected by
the statute.” City of Bridgeton v. FAA, 212 F.3d 448, 460 (8th Cir. 2002) (quoting 49 U.S.C. §
303(c)). The statute prohibits the Secretary of Transportation from approving any project
requiring the use of a public park, recreation area, or any significant historic site unless “(1)
there is no prudent and feasible alternative to using that land and (2) the program or project
includes all possible planning to minimize harm to the [protected property].” 49 U.S.C. §
303(c). By the very existence of the statute, the protection of parkland is to be given “paramount
importance.” Citizens to Preserve Overton Park, Inc, v. Volpe, 401 U.S. 402, 412-13 (1971).

When reviewing whether an agency’s decision to use Section 4(f) property is appropriate,
the court must ask “whether a responsible, well-informed public official could think the decision
to build through [the Section 4(f) property] ‘prudent.’ Eagle Foundation, Inc. v. Dole, 813 F.2d
798, 804 (7th Cir. 1987) (emphasis in original), The Secretary’s decision for deciding what is
prudent “calls for judgment, for balancing, for practical settlement of disputes, on which
reasonable people will disagree.” Id, Like NEPA, review of an agency action under Section 4(f)
of the Transportation Act is deferential, and the Secretary’s decision will only be set aside if it is
arbitrary and capricious. Citizens _to Preserve Overton Park, 401 U.S. at 414-16; Eagle
Foundation, 813 F.2d at 804,

Plaintiffs make three arguments with regard to Section 4(f) properties, First, they argue
that the Final EIS Section 4(f) analysis is flawed because it is limited to looking at variations of

20


An alignment shift to the south to avoid the park would displace a school and

approximately 60 residences. To accomplish an alignment shift to the north . . .

would require the use of substandard design in the form of sharp curves and

minimal tangents. A substandard design would compromise safety ....

FHWA 10275, This summary was compiled from the analysis presented in the Administrative
Record, including the Final EIS. Additionally, these impacts, along with numerous mitigation
measures, were discussed and analyzed with great detail in the Final EIS. See FHWA 8744-45;
8749-50. Thus, before making its decision, the FHWA considered the displacement of a school
and approximately 60 homes, the perceived danger of the proposed alignments, and the
mitigation efforts of parties involved before making its decision. As such, the court finds that
the FHWA took a hard look at the issue and reached a prudent decision. See Eagle Foundation,
Inc, 813 F.2d at 807 (stating that “(t]he Secretary’s obligation is to look at enough alternatives to
make possible an informed judgment about whether one is likely to be feasible and prudent.”),
Such action was not arbitrary and capricious. See id, at 808.

Finally, Plaintiffs’ argument that the Section 4(f) analysis does not give proper weight to
the effect the Bolz Bridge Project would have on the Perry Lathrop House also fails. Much like
the Section 4(f) analysis for Hickory Hills Park, the Final EIS considers three different
alignments to avoid using the Perry Lathrop House property, as well as numerous potential
mitigation measures. See FHWA 8749-50. After thoroughly examining the issue, the FHWA
issued the ROD, satisfied that these alternatives were neither prudent nor feasible. See Eagle
Foundation, 813 F.2d at 807. Because Plaintiffs do not contend that any other alternatives

should have been considered, aside from those which were previously dismissed, this claim also

fails. See Morongo Band, 161 F.3d at 576.

22


FHWA 8537. As the Final EJS explains, the No-Build Alternative is inconsistent with the
purpose and need of the proposed project. Section 1.2.1 of the Final EIS clearly identifies that
the regional purpose and need for the project “is to provide transportation improvements which
would increase access across the Fox River in the North Region of Kane County . . . [and] to
provide access to proposed land uses in the Northem region which are compatible with Kane
County’s 2020 Land Resource Management Plan and local land use plans.” FHWA 8341, 8346.
This is supported in the record by, among other things, the Transportation Study and the Traffic
Study. By its very nature, the No-Build Alternative cannot satisfy these objectives. Finding that
this is adequately explained in the Final EIS, the court concludes that no further analysis is
needed. Thus, after considering the “No-Build Alternative” section of the Final EIS along with
the entire Administrative Record, the FHWA followed the proper procedures and reached a
reasonable decision. See Colorado Environmental Coalition, 185 F.3d at 1176; see also
Simmons, 120 F.3d at 669.

Also, the court is not persuaded by Plaintiffs’ argument citing the insufficiency of the
analysis of reasonable alternatives for the North Region.. NEPA states that an EIS “should
present the environmental impacts of the proposal and the alternatives in comparative form, thus
sharply defining the issues and providing a clear basis for choice among options by the decision
maker and the public.” 40 C.F.R. § 1502.14. In defining the scope of this analysis, NEPA
mandates that agencies “[rJigorously explore and objectively evaluate all reasonable alternatives,
and for alternatives which were eliminated from detailed study, briefly discuss the reasons for
their having been eliminated.” 40 C.F.R. § 1502.14(a).

The alternatives for the North Region were discussed in Section 1.2.2 of the Final EIS.
See FHWA 8341. As this section indicates, aside from the Bolz Road corridor, three others were

17


In addition to evaluating all reasonable alternatives within the EIS, NEPA also requires
federal agencies to consider and discuss the environmental consequences of a particular action.
40 C.F.R. § 1502.16. This includes a discussion of both the direct and indirect effects the
proposed project will have on the environment. See id, Indirect effects are the reasonably
foreseeable effects cused by the action which appear later in time or further in distance. See
40 C.F.R. § 1508. 8(b), They may include “growth inducing effects and other effects related to
induced changes in the ten of Jand use, population density or growth rate, and related effects
on air and water and ‘ie natural systems, including ecosystems.” See id, Conclusory
statements that growth will occur with or without the proposed project, by themselves, are
insufficient; agencies must provide adequate discussions of growth-inducing impacts. Davis v
Mineta, 302 F.3d 1104, 1122-23 (10th Cir. 2002). The extent of these discussions, however, is
determined by the overall level of significance the agency places on the impacts. See Highway J
Citizens Group, 349 F.3d at 960. This is commonly referred to as the rule of reason approach.
See id. Ultimately, to determine the adequacy of the EIS with regard to these impacts, the court
“must examine the administrative record, as a whole, to determine whether the [Agency] made a
reasonable, good faith, objective presentation of those impacts sufficient to foster public
participation and informed decision making.” Colorado Environmental Coalition v. Dombeck,
185 F.3d 1162, 1177 (10th Cir, 1999).

1. Growth and Traffic Inducing Impacts

Plaintiffs first contend that the Final EIS fails to provide a detailed assessment of growth
and traffic inducing impacts as required under NEPA. Specifically, Plaintiffs argue that the
Final EIS “reveals no analysis of whether the projected traffic impacts or population impacts
took into account the potential growth in the area induced by construction of the Bolz Bridge

9


EIS and the Section 4(f) evaluation of impacts arising out of the construction of the proposed
bridge projects. The parties do not dispute the nature of the documents in the administrative
record. The parties only dispute whether the FHWA’s decision to issue the ROD complies with
the standards set forth under the APA. Therefore, the standard of review is that provided by the
APA.
B, Standard of Review under the Administrative Procedures Act

Review of an agency action under NEPA and the Federal Transportation Act is governed

by the APA. Highway J Citizens Group v, Mineta, 349 F.3d 938, 952 (7th Cir. 2003). Under the

APA, the court will set aside the agency action only if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). Although the
overall standard is narrow in scope, it still requires the court to conduct a “searching and careful”
inquiry. Highway J Citizens Group, 349 F.3d at 952 (citations omitted). To determine whether
the agency action falls within this standard, the court “must consider ‘whether the decision was
based on consideration of the relevant factors and whether there has been clear error of
judgment.’” Indiana Forest Alliance, Inc. v. United States Forest Service, 325 F.3d 851, 858-59
(7th Cir. 2003) (quoting Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378

(1989)). “If an agency considers the proper factors and makes a factual determination on
whether the environmental impacts are significant or not, that decision implicates substantial
agency expertise and is entitled to deference.” Indiana Forest Alliance, 325 F.3d at 859. This
deferential standard requires that the court not substitute its judgment for that of the agency. Id.;

Heartwood, Inc. v. United States Forest Service, 230 F.3d 947, 953 (7th Cir. 2000). As long as

the “federal agency has heard all of the objections to a plan and considered all of the sensible

options before it, the agency has fulfilled its duty.” Simmons v. U.S. Anny Corps, Of Engineers,
6


On August 21, 2002, Plaintiffs filed this lawsuit challenging the FHWA’s decision to
issue the ROD and the sufficiency of the Final EIS. All parties have filed cross-motions for
summary judgment, which are now before the court.

II. DISCUSSION
A. Summary Judgment

Summary judgment is permissible when “there is no genuine issue as to any material fact
and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
non-moving party cannot rest on the pleadings alone, but must identify specific facts, see
Cornfield v. Consolidated High Sch. Dist. No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993), that
raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See
Murphy v. ITT Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999). In deciding a
motion for summary judgment, the court can only consider evidence that would be admissible at

trial under the Federal Rules of Evidence. See Bombard y. Fort Wayne Newspapers, Inc., 92

F.3d 560, 562 (7th Cir. 1996), The court views the record and all reasonable inferences drawn
therefrom in the light most favorable to the party opposing the motion. Fed. R. Civ. P. 56(c); see
also Perdomo v. Browner, 67 F.3d 140, 144 (7th Cir.1995). “In the light most favorable” simply
means that summary judgment is not appropriate if the court must make “a choice of
inferences.” See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); see also First Nat’]
Bank of Arizona v. Cities Service Co., 391 U.S. 253, 280 (1968); Wolf v. Buss (America) Inc.,
77 F.3d 914, 922 (7th Cir. 1996). The choice between reasonable inferences from facts is a jury
function. See Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 255 (1986).

In this case, there are no genuine issues of material fact presented. The FHWA’s
decision to issue the ROD was based on a voluminous administrative record which contains the

5


considered, including corridors along County Line Road, Miller Road/Lake Marian Road and
Boncosky Road, Section 1.2.2 states:

Only the Bolz Road corridor survived the screening process of the Corridor

Analysis Document. Based on the Corridor Analysis Document, Kane County

concluded that County Line Road, Miller Road/Lake Marian Road and Boncosky

Road were unacceptable because of adverse impacts to the human and natural

environment that were obvious and unavoidable.

Id, Although brief, this section contains an adequate discussion as to why the three other
alternatives for the North Region were eliminated from the detailed study. See 40 C.F.R. §
1502.14(a). Mainly, this was because of adverse impacts to the human and natural environment
which are outlined in the Corridor Analysis Document. See FHWA 8341. In other words, these
other three alternatives were not prudent and feasible under the circumstances.

Nevertheless, Plaintiffs argue that the Corridor Analysis Document is flawed because it
does not adequately compare the destruction of Section 4(f) properties between the four
alternatives. However, the Corridor Analysis Document does not require such a comparison.
The Corridor Analysis Document seeks only to identify major issues associated with the
construction of each corridor. This allows agencies to determine which alternatives are

reasonable candidates for further study and should be included in the EIS. See Concerned

Citizens Alliance, Inc. v. Slater, 176 F.3d 686, 706 (3d. Cir. 1999).

Here, the Corridor Analysis Document recommends that three corridors in the North
Region, excluding the Bolz Road corridor, be dismissed for various reasons. See FHWA 2208-
12. For example, it states that County Line Road would displace 40-60 homes and pose serious
engineering problems due to the existing grades. FHWA 2209. It also states that the Miller
Road/Lake Marion Road and Boncosky Road corridors pose adverse impacts on Section 4(f)
properties which are unacceptable to Kane County. See FHWA 2210-12. These include, inter

18


“simply prescribes the necessary process” federal agencies must follow when evaluating the
environmental consequences of a proposed project. See id. This process acts as a means of
safeguarding against environmental harms. See Davis v. Mineta, 302 F.3d 1104, 1115 (10th Cir.
2002). As long as “the adverse environmental effects of a proposed action are adequately
identified and evaluated,” NEPA does not prohibit the agency from deciding that other values
outweigh the environmental costs. Highway J Citizens Group, 349 F.3d at 953 (quoting
Robertson, 490 U.S, at 349).

NEPA is administered by the Council on Environmental Quality (“CEQ”). See 42 U.S.C.
§ 4342. The CEQ promulgates regulations related to NEPA which are binding on federal
agencies. See 42 U.S.C. § 4344(3); 40 C.F.R. §§ 1501-08; see also Heartwood, 230 F.3d at 949.
All federal agencies must adopt their own procedures to supplement the CEQ regulations and
publish them in the Federal Register. See Rhodes v. Johnson; 153 F.3d 785, 777-78 (7th Cir.
1998). Prior to publication, the agency must consult with the CEQ to ensure that its procedures
are in conformity with NEPA and the CEQ regulations. See § 40 C.F.R. 1507.3(a).

NEPA requires an agency to prepare an EIS whenever it determines that the proposed
action is a “major Federal action(]” which significantly affects the quality of the human
environment. See 42 U.S.C. § 4332(2)(C). The EIS itself is a “detailed analysis and study
conducted to determine if, or the extent to which, a particular agency action will impact the
environment.” Heartwood, 230 F.3d at 949, NEPA requires that the EIS “fr)igorously explore
and objectively evaluate all reasonable alternatives” to the proposed action included in the
detailed study. See 40 C.F.R. § 1502.14(a), For those alternatives that are eliminated from the
detailed study, NEPA requires a brief discussion containing the reason for the elimination. See

id,


‘Minute Order Form (06/97)
~ “2

Ye

United States District Court, Northern District of Illinois

L

Oth
ramestanincsinee | Charles Norgle sig dr fOr
CASE NUMBER 02 C 5962 DATE 3/30/2004
CASE Citizens Advocate Team, et al. Vs. United States Dep’t of Transportation, et al.
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., ai, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.}

MOTION:
Motions for Summary Judgment
DOCKET ENTRY:
(1) Q Filed motion of { use listing in “Motion” box above.]
2) o Brief in support of motion due.
(3) Oo Answer brief to motion due___. Reply to answer brief due__.
(4) QO Ruling/Hearingon__setfor__at
(5) QO Status hearing[held/continued to] [set for/re-set for] on____—ssetfor__—s—s at.
(6) im Pretrial conference[held/continued to] [set for/re-set forjon__——ssetfor_— at.
(7) Oo Trial[set for/re-set for]on__at
(8) oa (Bench/Jury trial] [Hearing] held/continuedto__at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (O)Local Rule 41.1 OFRCP41({a(1) © FRCP41(a)(2).

ao if [Other docket entry] Before the court are Plaintiffs’ Motion for Summary Judgement [37-1] and
Defendants’ Motions for Summary Judgment [45-1], [47-1] and [51-1]. For the reasons stated on the
attached order, Plaintiffs’ motion [37-1] is DENIED; Defendants’ motions [45-1], [47-1] and [51-1] are
GRANTED. The Clerk shall enter judgment in favor of all Defendants pursuantgo Fed. R. Civ. P. 58.

(See attached Opinion and Order). Cheater’ /e_

Q) 4@ [For further detail see order attached to the original minute order.]

No notices required.

No notices required, advised in open court.

Notices mailed by judge's staff.
Notified counsel by telephone.

W } Docketing to mail notices,
V_ | Mail Ao 450 form.
Copy to judge/magistrate judge. “ la tae
L8N89 JOMASIO “SN
courtroom ” VQ
deputy’s
initials — — >
“ “Dateltimé received in '* ‘°°
central Clerk's Office



in Kane County and enhancing development along the Bolz Road corridor. Additionally, these
objectives are also consistent with those of the overall tegional bridge project. In terms of land
use and transportation issues, the Final EIS identifies three objectives for the regional bridge
Project: (1) to enhance Kane County’s transportation network by reducing traffic congestion and
providing alternate and more direct routes of travel; (2) to serve efficient land use through
efficient access to central business districts, public services, and employment and commercial
centers; and (3) to serve proposed land use in performance with Kane County’s 2020 Land
Resource Management Plan. F.H.W.A. 8341.

When addressing growth-inducing impacts in light of these issues, the Final EIS states:

Improved accessibility across the Fox River and the associated projected traffic

increases will enhance the planned development potential of the undeveloped

parcels of the Bolz Road Corridor. Growth in these areas is consistent with the
policies of local governmental units as reflected in their Comprehensive Plans and

Zoning Ordinances (see Section 2.2.1.1),

FHWA 8609. Additionally, when issuing the ROD, the FHWA declared:

[The Bolz Bridge] alternative satisfies the objectives of the Purpose and Need of

this project. It reduces congestion on the existing Kane County transportation

network by providing alternate and more direct crossings of the Fox River and is

compatible with County and local land use plans, while not causing excessive
impacts on the human and natural environment.
FHWA 10172,

Thus, the FHWA concluded that the growth-inducing impacts associated with the Bolz
Bridge Project were consistent with the overall purpose of the proposed project. When analyzed
within the context of the entire administrative record, see Colorado Environmental Coalition,
185 F.3d at 1176, it is clear that the Agency concluded that the growth-inducing impacts from
the Bolz Bridge project were insignificant. Satisfied with the studies conducted on the issue, the
FHWA determined that there was no basis to quantify all possible traffic and population growth-

i


Project.” See Pls.” Mot. For Summ. J., at 7-8. Plaintiffs further contend that the Final EIS
contains only conclusory statements which indicate that growth will occur regardless of whether
the Bolz Bridge Project is constructed. See id., at 9. Without offering any evidence of negative
potential impacts, Plaintiffs conclude that the Final EIS, on its face, does not comply with
NEPA’s mandate; therefore the FHWA’s decision to issue the ROD was arbitrary and
capricious, See id.

The court is not persuaded by Plaintiffs’ argument. Although the Final EIS contains only
a limited discussion of the projected traffic and population increases associated with the
construction of the Bolz Bridge Project, the FHWA’s decision to issue the ROD was not
arbitrary and capricious in light of the minor role these growth-inducing impacts were
determined to have on the surrounding area. To comply with NEPA’s mandate, an Agency must
provide an adequate discussion of growth-inducing impacts in the EIS. See Davis, 302 F.3d at
1123. “A conclusory statement that growth will increase, with or without the project, or that

development is inevitable, is insufficient ....” Id. (citing Laguna Greenbelt, Inc. v. Unites

States Dep’t of Transp., 42 F.3d 517, 526 (9th Cir. 1994)). Where the growth-inducing impacts
or effects are determined to be minor, however, the agency is not required to quantify all
possible effects provided it has reasonably explained why such a quantification is not necessary
or feasible. See City of Los Angeles v. Federal Aviation Administration, 138 F.3d 806, 808 (9th
Cir. 1998).

As Plaintiffs indicate, the Final EIS does not contain a detailed analysis of the growth-
inducing impacts associated with the construction of the Bolz Bridge Project. However, in this
instance, such an analysis is unnecessary because the projected impacts at issue are consistent
with the overall purpose and need for the project, which focuses on relieving traffic congestion

10


120 F.3d 664, 667 (7th Cir. 1997). In other words, in applying the arbitrary and capricious
standard under the APA, the court’s only obligation is to ensure that the agency has taken a
“hard look’ at the environmental consequences.” Highway Citizens Group, 349 F.3d at 953
(quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976).

In this case, Plaintiffs’ argue that the FHWA’s decision to issue the ROD was arbitrary
and capricious because it was based on an inadequate Final EIS. Plaintiffs contend that the Final
EIS is insufficient for several reasons. Specifically, Plaintiffs argue that the Final EIS: (1) fails
to address the consequences of growth-inducing and traffic-inducing impacts associated with the
Bolz Bridge Project; (2) fails to measure the impact of the proposed bridges upon projected
ozone and carbon monoxide levels; (3) does not support the dismissal of the socioeconomic
effect of the Bolz Bridge project on the neighboring lower-income areas; (4) does not consider a
sufficient range of alternatives to the Bolz Bridge Project; and (5) does not justify the use of
property protected by Section 4(f) of the Transportation Act.’ First, the court will address
Plaintiffs’ claims under NEPA. It will then address Plaintiffs’ claims under the Section 4(f)
Transportation Act.

C, National Environmental Policy Act
NEPA establishes a “broad national commitment to protecting and promoting the

environment.” Highway J Citizens Group, 349 F.3d at 953 (citing Robertson v. Methow Valley
Citizens Counsil, 490 U.S. 332, 349 (1989)). Rather than mandating particular results, NEPA

Defendants argue that Plaintiffs are barred from seeking judicial review of their
claims because they either failed to raise their objections during the administrative
process, or, if raised, failed to demonstrate why the impacts were significant to the
project. Unless otherwise indicated in the text, the court only addresses Plaintiffs’ claims
on their merits.


only the Bolz Road corridor, thereby excluding possible variations of the other three corridors
proposed for the North Region. However, as the court has already discussed, these alternatives
were dismissed early in the administrative process because they did not meet the purpose and
need for the project, or because they had unique environmental problems of their own. See
supra, Part TI.C.4. Section 4(f) provides that the agency take a hard look when deciding
whether to use public parkland for a highway project. However, it does not require that the
Secretary thoroughly exhaust every possible alternative, particularly when an alternative is
declared imprudent or infeasible for various reasons. See Concerned Citizens Alliance, 176 F.3d
at 706. Further, Plaintiffs do not suggest how these other three alternatives may be more
practical. They only claim that by not analyzing the issues in the Final EIS, the Secretary failed
to take a hard look at possible alternative to using Section 4(f) land. This is not enough to
challenge an agency’s choice of reasonable alternatives, See Morongo Band, 161 F.3d at 576
{indicating that the burden is on the party challenging the agency action to offer feasible
alternatives when not satisfied with the alternatives chosen for study). Therefore, this challenge
cannot stand.

Second, with regard to Section 4(f), Plaintiffs argue that the Final EIS fails to provide a
detailed assessment of alternative alignments that were considered for the Bolz Road corridor
itself. Specifically, Plaintiffs argue that the discussions on alternative alignments to avoid both
the Hickory Hills Park and the Perry Lathrop House (a property eligible for inclusion on the
National Register of Historic Places) are insufficient. However, this argument also fails because
the proposed alignments, which would avoid these Section 4(f) properties, were thoroughly
considered and determined not to be prudent or feasible.

With respect to Hickory Hills Park, the ROD states:

21


(“KDOT”); Jeffrey Dailey, in his official capacity as Director of KDOT; and the Kane County
Board (collectively “Defendants”).
Il. BACKGROUND!

In 1989, to relieve traffic congestion on existing bridges, KDOT initiated procedures to
develop and construct alternative bridge crossings over the Fox River. In February 1990, the
Fox River Bridge Advisory Committee (“Advisory Committee”) was formed consisting of
representatives from townships, municipalities and counties located near the Fox River. The
Advisory Committee was charged with reducing the myriad of bridge proposals made within the
prior ten year period, thereby allowing for a reasonable number of site and engineer feasibility
studies to be conducted. In April 1991, the Chicago Area Transportation Study published two
studies: (1) the 1990 Kane County Transportation Study (“Tr ransportation Study”) and (2) the
1990 Fox River Bridge Traffic Study (“Traffic Study”). After evaluating the Traffic Study, the
Advisory Committee selected four sites for further investigation. The Advisory Committee then
directed KDOT to conduct a site engineering feasibility study for each of the four sites. KDOT
hired Alfred Benesch & Company to conduct these studies. In 1993, Alfred Beneshch &
Company published the Feasibility Studies of Four New Bridges Crossing the Fox River
(“Feasibility Studies”).

After reviewing the Transportation Study, the Traffic Study and the Feasibility Studies,
the FHWA determined that under NEPA, the development of one Environmental Impact
Statement (“EIS”) was necessary for evaluating environmental impacts arising out of the

proposed Fox River Bridge crossings. FHWA’s determination that the projects were related was

'The undisputed facts are taken from the Parties’ Local 56.1 Statements. All
disputed facts, if any, are noted in the text.

:



funding. Second, Plaintiffs contend that the Final EJS ignores the fact that the proposed corridor
acts as a barrier between lower-income and higher-income neighborhoods.

The impacts the Bolz Bridge Project will have on Fox View are discussed in Sections
2.2.1.5 and 4.2.1.6 of the Final EIS. See FHWA 8406-07, 8615. Section 4.2.1.6 states that Fox
View “is located approximately a distance of 700 feet from the preferred alignment.” FHWA
8615. It also declares that Fox View is located in census tract #8503.01. See FHWA 8406.
Because the Bolz Road alignment at issue is predominately located within census tract #8501.00,
which has a lower percentage of persons below the poverty level than census tracts ##8503.01
and 8502.01, the Final EIS explains that the corridor passes to the north of the lower-income
census tracts. See FHWA 8615. Based on this analysis, the report concludes that “there will not
be any disproportionate impacts on Fox View Apartments.” See FHWA 8615.

Additionally, the Final EIS states:

The preferred Bolz Road alignment was realigned further north and away from

adjacent census tract #8502.01, as a result of public input from residents during

the public hearing, as well as coordination with local leaders. This realignment

will provide continued direct access to a playground and park area for the

residents of census tracts #8502.01. The local population will also experience no

loss in roadway access.

FHWA 8615. Furthermore, in response to comments on the issue, the ROD states:

The proposed road does not affect residents in lower income/minority

concentration areas; the roadway curves away from these areas to the maximum

extent possible given right-of-way constraints to limit proximity impacts to

residents ... . While the Fox View apartments are cited as a subsidized housing

facility to be affected, the closest unit is 165 meters (550 feet) from the roadway

and will suffer no adverse impact.

FHWA 10286.

14


“NEPA requires that agencies ‘study, develop, and describe appropriate alternatives’ to
major federal projects.” Highway J Citizens Group, 349 F.3d at 960 (quoting 42 U.S.C. §§
4332(2)(C)(iii) & 2(E)). In considering alternatives, the agency must sequentially address three
questions: (1) what is the purpose of the proposed project; (2) given that purpose, what are
reasonable alternatives to the project; and (3) to what extent it should explore each particular
reasonable alternative? See id. (citing Simmons, 120 F.3d at 668). Requiring agencies to
analyze the issue in this fashion ensures a reasonable alternatives analysis considered in light of
the purpose and need for a particular project. To determine whether the EIS properly resolves
these three questions, the court must take a deferential view of the agency’s decision. See
Simmons, 120 F.3d at 669; see also Citizens Against Burlington, 938 F.2d at 195-96.
Ultimately, the court only determines whether the agency “followed required procedures,
evaluated relevant factors and reached a reasoned decision.” Id. (internal quotations and
citations omitted).

In this case, the court is not persuaded by Plaintiffs’ argument citing the inadequacy of
the Final EIS’s “No-Build” analysis. NEPA requires an agency to include an alternative of “no-
action” in its analysis of alternatives. See 40 C.F.R. § 1502.14(d). Here, the “No-Build
Alternative” analysis is presented in Section 3.1.1 of the Final EIS. FHWA 8536-37. Analyzing
this alternative in light of the purpose and need of the project, Section 3.1.1 concludes:

[T]he No-Build Alternative does not address the need for this project. However,

it is presented with the awareness that any proposed construction alternative will

result in impacts to the man-made and natural environments, and may face

regulatory obstacles as a result. The No-Build Alternative is therefore presented

as a benchmark by which to judge the Build alternative and determine if the

benefits of the Build Alternative outweigh its impacts and regulatory
requirements,

16


I. INTRODUCTION

On August 21, 2002, Plaintiffs, Citizens Advocate Team (“CAT”), Howard Zarbock and
Nevina Zarbock (collectively “Plaintiffs”), filed a Complaint under the Administrative Procedure
Act (“APA”), 5 U.S.C. § 702, against various governmental Defendants in connection with the
proposed construction of three new bridges across the Fox River in Kane County, Illinois. In
essence, Plaintiffs allege that the Final Environmental Impact Statement prepared by Defendants,
with respect to this project, fails to meet the requirements of both the National Environmental
Policy Act (“NEPA”), 42 U.S.C. §§ 4321-47, and Section 4(f) of the Federal Transportation Act,
49 U.S.C. § 303(c). Plaintiffs Complaint seeks, inter alia: (1) a declaratory judgment that the
Federal Highway Administration’s approval of the project was unlawful and (2) an injunction
prohibiting Defendants from taking any further action toward the construction of the project until
they have complied with all of the requirements of NEPA and Section 4(f) of the Transportation
Act.

There are numerous parties to this litigation. Plaintiff CAT is a regional conservation
organization which seeks to protect the public trust and is organized as a non-profit corporation
under the laws of the State of Illinois, Plaintiffs Howard and Nevina Zarbock are members of
CAT and residents of Kane County, Illinois. The Zarbocks allege that they own property located
adjacent to one of the proposed construction sites. The named Defendants are the United States
Department of Transportation (“USDOT”); Norman Mineta, in his official capacity as Secretary
of USDOT; the Federal Highway Administration (“FHWA”); Mary Peters, in her official
capacity as the Director of FHWA; Norman Stoner, in his official capacity as Division
Administrator of FHWA; the Illinois Department of Transportation (“IDOT”); Kirk Brown, in
his official capacity as Secretary of IDOT; the Kane County Division of Transportation

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION DO CKETED

CITIZENS ADVOCATE TEAM, and
HOWARD and NEVINA ZARBOCK MAR 3 1 2004

Plaintiffs,
v.

UNITED STATES DEPARTMENT OF
TRANSPORTATION; NORMAN
MINETA, Secretary, United States
Department of Transportation; FEDERAL
HIGHWAY ADMINISTRATION;
MARY PETERS, Director, Federal
Highway Administration; NORMAN
STONER, Division Administrator,
Federal Highway Administration;
ILLINOIS DEPARTMENT OF
TRANSPORTATION; KIRK BROWN,
Secretary, Illinois Department of
Transportation; KANE COUNTY
DIVISION OF TRANSPORTATION;
JEFFREY DAILEY, Director, Kane
County Division of Transportation;
KANE COUNTY BOARD,

Case No. 02 C 5962

Honorable Charles R. Norgle

TT Se ew

Defendants.
OPINION AND ORDER
CHARLES R. NORGLE, District Judge.
The Parties have filed Cross-Motions for Summary Judgment pursuant to Federal Rule of
Civil Procedure 56. For the following reasons, Plaintiffs’ motion is denied; Defendants’ motions

are granted.



inducing effects. See City of Los Angeles, 138 F.3d at 808 (asserting that agencies are not

required to quantify minor growth-inducing effects); see also Seattle Cmty. Council Fed’n v.

FAA, 961 F.2d 829, 835-36 (holding that plans designed to handle existing traffic with greater
efficiency are not designed to induce growth). This was a reasoned determination that the court
will not second-guess. See Colorado Environmental Coalition, 185 F.3d at 1176 (stating that the
court cannot question the wisdom of the agency’s decision or its conclusion regarding the
magnitude of the impacts); see also Citizens Against Burlington, Inc. v, Busey, 938 F.2d at 190,
201 (D.C. Cir. 1991) (holding that courts must defer to an agency’s informed discretion).

2, Air Quality

Similarly, without alluding to evidence of any adverse impacts, Plaintiffs next argue that
the air quality analysis in the Final EIS does not comply with NEPA standards. Essentially,
Plaintiffs contend that the discussions on ozone producing vehicle emissions and carbon
monoxide levels do not take into account the potential for increased traffic spurred by the
induced growth from the new bridges. However, as the court has discussed, Defendants
determined that the projected growth-inducing impacts on traffic associated with the
construction of the Bolz Bridge Project were, at most, minor. See supra, Part IIL.C.1. As such,
contrary to Plaintiffs’ contention, there is no need for Defendants to include a detailed analysis
on air quality in relation to these impacts. See City of Los Angeles, 138 F.3d at 808.

Additionally, within the Final EIS Defendants did analyze the impacts the proposed
project would have on ozone production and carbon monoxide levels. See FHWA 8594-95;
8392-95. As required by law, these impacts were measured at specific locations within
particular regions located within the Chicago Metropolitan Area. It is not the function of the
court to determine whether analysis is accurate or whether Defendants used the best

12


Because Defendants did not perceive the proposed corridor to have any impacts on Fox
View, they were not required to analyze the issue further in the Final EIS. When issuing the
ROD, the FHWA thoroughly considered the issue in relation to its significance. See Highway J
Citizens Group, 349 F.3d at 960 (adopting the rule of reason approach which considers the
extent of the agency’s analysis viewed in proportion to the size of the perceived impact). Thus,
the FHWA seriously considered the issue and reached a reasoned decision. This is all that
NEPA requires. See Citizens Against Burlington, 938 F.2d at 201 (holding that courts must
defer to an agency’s informed discretion).

Additionally, as to whether the Final EIS ignores the fact that the proposed corridor acts
as a barrier between lower-income and higher-income neighborhoods, Plaintiffs fail to show that
the issue was raised or how this situation creates an adverse impact. NEPA does not require
federal agencies to consider an undefined medley of imponderables and every possible impact
from a project. Without adequately placing Defendants on notice of the issue, Plaintiffs

argument is waived. See Vermont Yankee Nuclear Power Corporation v. Consumers Power

Corporation, 435 U.S. 519, 553-54 (1978) (comments must alert the agency to the particular
mistake made and why it is significant).

4. Analysis of Alternatives

With respect to alternatives, Plaintiffs argue that the Final EIS fails for two reasons.
First, they argue that the Final EIS does not seriously consider the “No-Build” alternative as
required under NEPA. Second, Plaintiffs assert that the Final EIS gives “short shrift” to the
analysis of alternative corridors proposed for the North Region, thereby also failing to satisfy the
requirements of NEPA. See Pls.’ Mot. for Summ. J., at 12. The court will address each of

Plaintiffs’ arguments.