By Christopher Garrett, Daniel Brunton and Andrew Yancey 

On February 18, 2014, the Ninth Circuit Court of Appeals rejected challenges under the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and the Department of Transportation Act to the Federal Transit Administration’s approval of a 20-mile high-speed rail project through downtown Honolulu, Hawaii. 

The plaintiffs in v. Federal Transit Administration argued that the environmental impact statement (EIS) prepared by the Federal Transit Administration violated NEPA by unreasonably restricting the project’s purpose and need, and that it failed to analyze reasonable alternatives.  The purpose-and-need statement was fairly narrow, and included the purpose of providing “high-capacity rapid transit” in the identified corridor.  The Court nonetheless upheld the statement of purpose and need, relying in part on the fact that it was developed as part of the federally-mandated Regional Transportation Plan.  The Court approved of the district court’s conclusion that:

Because the statement of purpose and need did not foreclose all alternatives, and because it was shaped by federal legislative purposes, it was reasonable.

The Court similarly rejected the plaintiffs’ claim that the EIS failed to analyze a sufficient range of alternatives.  The Court held that the agency could properly omit discussion of alternatives that were rejected in prior state studies that were subject to federal guidance and public review.  The Court noted that the plaintiffs’ “real quarrel” was with the EIS’s failure to consider their proposed alternatives of building new managed lanes or light-rail.  The Court held that the EIS’s brief discussion explaining why those alternatives were either too costly or infeasible was sufficient under NEPA. 

Finally, the plaintiffs argued that the Federal Transit Administration should have gone to greater lengths under section 4(f) of the Department of Transportation Act to preserve historic sites along the project’s route—including by conducting full archeological surveys along the entire 20-mile stretch.  Section 4(f) provides certain protections for sites that are included in, or are eligible for inclusion in, the National Register of Historic Places. 

The Court rejected this argument, noting that section 106 of the NHPA requires an agency only to “make a reasonable and good faith effort to carry out appropriate identification efforts.”  Though the Court acknowledged that the project was likely to disturb undiscovered burial sites, it held that the agency met its burden by commissioning an archeological report that used “soil survey data, archeological records, land survey maps, and field observations to identify unknown burial sites and predict the likelihood of finding additional burial sites during different phases of the Project.”  The Court also noted approvingly that the agency had entered into a programmatic agreement with the State Historic Preservation Officer, the Advisory Council on Historic Preservation, and other agencies “outlining the procedures for burial sites” found during construction. 

While the opinion in this case follows established precedent, it highlights at least two points that are important for developers of projects requiring federal approvals:

  • Many (perhaps most) projects are developed in settings where there are relevant previous planning decisions by federal and state agencies.  Often, these previous planning decisions can be relied on to narrow the scope of alternatives the agency must study under NEPA. 
  • The requirement for an agency to identify sites eligible for listing on the National Register of Historic Places is limited to a “reasonable and good faith effort.”  Consequently, an EIS does not necessarily need to include full archeological field surveys and exploration for the entire project length, even when a project is likely to impact undiscovered sites.