The National Environmental Policy Act was one of the first laws ever written that establishes the broad national framework for protecting our environment. NEPA's basic policy is to assure that all branches of government give proper consideration to the environment prior to undertaking any major federal action that significantly affects the environment.

NEPA requirements are invoked when airports, buildings, military complexes, highways, parkland purchases, and other federal activities are proposed. Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from all Federal agencies and are the most visible NEPA requirements.

National Environmental Policy Act
NEPA
42 U.S.C. 4321 et seq.
Volume 42 U.S. Code section 4321 and following

NEPA requires all federal agencies to comply in all situations
when major actions are contemplated

NEPA forces agency to put into writing
reasons, reasoning, and conclusions

NEPA allows Citizens who disagree with conclusions
basis for seeking judicial review of action

NEPA 3 main parts

Section 101 goals for govt & nation

Section 102 "action forcing" mechanism (EIS)

creation of President's Council on Environmental Quality (CEQ)

NEPA Section 102(A)
(43 U.S.C. 4332)

all federal agencies shall utilize a systematic, interdisciplinary approach
ensure integrated use of natural & social sciences & environmental design arts

NEPA Section 102(A)
Systematic, Interdisciplinary Approach
in planning and decisionmaking
which may have an impact on man's environment

NEPA Section 102(B) Identify & Develop Methods & Procedures
insure unqualified amenities & values given appropriate consideration in decisionmaking
along with economic & technical considerations

NEPA Section 102(B) Decisionmaking Procedure
in consultation with Council on Environmental Quality

NEPA Section 102(C)
Detailed Statement (EIS)
include in every recommendation or report on proposals
for legislation, or other major Federal actions
significantly affecting the quality of the human environment

NEPA Section 102(C)
Detailed Statement by
Responsible Official

environmental impact of proposed action
any adverse environmental effects which cannot be avoided should proposal be implemented

NEPA Section 102(C)
Environmental Impact Statement
alternatives to the proposed action

relationship between short?term uses of man's environment and long term productivity

NEPA Section 102(C)
Environmental Impact Statement

any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be implemented

Prior to making detailed statement, responsible federal official shall
consult with and obtain comments of any Federal agency
which has jurisdiction by law or special expertise
with respect to any environmental impact involved

Copies of statement
available to CEQ & public

comments and views of appropriate Federal, State, & local agencies
which are authorized to develop and enforce environmental standards

Council on Environmental Quality
(CEQ)
"guidelines" for environmental impact statement process

CEQ regulationss
(40 C.F.R.Part 1500)
like "Restatements of Law"

NEPA encourages but does not require federal agencies
to act in a way consonant with the goal of a healthful and pleasing environment

In NEPA litigation, environmental plaintiffs must surmount a galaxy of procedural objections
before the court will reach the statutory merits

NEPA litigation
ordinarily raises
2 questions

(1) should the agency be forced to write a full EIS before undertaking proposed action

(2) If an EIS has been prepared, is it adequate
Whether EIS required

(NEPA "trigger phrases")
proposals for major Federal actions
significantly affecting the quality of the human environment

Environmental Assessment (EA)
required by CEQ regs
(40 CFR 1501(4)
to determine if action significant environmental effect

If not, FONSI
Finding of No Significant Impact

EIS Procedural Questions
preparation methodology & content

adequate time to comment
adverse opinions included & discussed

EIS Procedural Questions
"Boundless"

rigorous interdisciplinary approach
final draft product of agency or interest group

environmental alternatives adequately discussed
statement sufficiently detailed

As NEPA incorporated
into agency decisionmaking
shift of focus from failure to prepare EIS
to adequacy of EIS
or EA when EIS warranted

Marsh
v.
Oregon Natural Resources Council
U.S. Supreme Court 1989
Supplemental EIS
Significance of New Information?

Dam construction,
EIS concluded no major effect on fish production

Whether 2 new documents required supplemental EIS
suggested greater effect on fishing and downstream turbidity

NEPA does NOT mandate agencies
achieve particular SUBSTANTIVE environmental results

Focus government & public attention
on environmental effects of proposed action

Insure agency will NOT act
on incomplete information

NEPA requires agencies to file EIS
when remaining govtal action would be environmentally significant

CEQ regs entitled to substantial deference
duty to prepare supplements
to either draft or final EIS

if SIGNIFICANT new circumstances or information
relevant to environmental concerns

bearing on proposed action
or its impacts

Agency need NOT supplement EIS
every time new information comes to light
after EIS finalized

NEPA does require agencies take "hard look"
at environmental effects of planned action
even AFTER a proposal has received initial approval

what is value of information to still pending decisionmaking process?

Supplemental EIS must be prepared
if there remains major Federal action to occur, AND...

And new information
sufficient to show remaining action will affect quality of human environment

in a SIGNIFICANT manner, or significant extent,
NOT ALREADY CONSIDERED

APA review "arbitrary & capricious" standard
controls whether court should set aside Corps' determination
that FEISS need not be supplemented

Factual dispute?
which implicates substantial agency expertise

Because analysis of relevant documents
requires a high level of technical expertise

we must defer to the informed discretion of the responsible federal agencies

Whether decision "arbitrary & capricious" reviewing court must consider
whether decision based on a consideration of the relevant factors
and whether there has been a clear error of judgment

APA inquiry must be "searching & careful,"
but the ultimate standard of review is NARROW

Agency must have discretion
to rely on reasonable opinions of qualified experts
even if conflicting views seem more persuasive

Court does NOT automatically defer
to agency's interest in finality,
decision not to supplement EIS

Careful review of record indicates agency made REASONED decision
based on significance,
or lack of significance, of new information

Here, Corps carefully scrutinized proffered information
memo did not present significant new information requiring supplementation of FEISS

Corps did not simply rely on it own experts
Corps would be required to prepare 2d supplemental EIS
If information in 2 documents BOTH NEW & ACCURATE

regardless Corps had duty
to take "HARD LOOK"
at proffered evidence

After "hard look"
based on careful scientific analysis of new information
concluded "exaggerated importance" of 2 documents

Corps complied with NEPA
in deciding no 2d SEIS

Robertson
v.
Methow Valley Citizens Council
plan to mitigate?
unavailable or costly data
worst case analysis?
U.S. Supreme Court, 1989

ISSUES: Whether NEPA requires fed. agencies to include in EIS
fully developed plan to mitigate environmental harm

A "worst case analysis" of potential environmental harm
if relevant information unavailable or too costly to obtain

'78 Methow Rec. Inc. applies for special use permit
develop & operate proposed "Early Winters Ski Resort"

FS prepared EIS
"Early Winters Study"
to provide information required to evaluate skiing potential

to assist decision whether to issue Special Use Permit
Early Winters Study
evaluated five alternatives

including "no action" alternative

highest 16 lifts, 10.5k skiers /day

EIS possible impacts discussion
not limited to on-site

CEQ regs
40 CFR 1502.16(b)
requires EIS to address off?site impacts of each alternative

on community facilities, socio-economic and other economic conditions
in Upper Methow Valley

Early Winters Study "due to uncertainty" off-site effects
where other public & private lands developed

difficult to evaluate

thus, EIS analysis not site-specific

Study outlined certain steps

that might to taken
to mitigate adverse effects

but, indicated merely conceptual
make more specific as part of design and implementation stages of planning process

Effects of proposed development
on air quality and wildlife
received particular attention

State comment concern
for potential losses to migratory deer herd

FS EIS est. lower 15%
reduction in deer herd
summarized State's contrary view in EIS text

EIS stressed off-site effects difficult to estimate
uncertainty of private development

Air Quality
(as with wildlife)

EIS suggested measures for mitigating adverse effects

proposed options directed to steps which might be taken
by State and local govt.

4 groups appealed decision

36 CFR 211.18

After hearing, FS Chief affirmed decision
stressed permit approved concept, not construction

conclude EIS adequate for this stage of review process

Citizens brought action under Administrative Procedure Act (APA)
argue Study did not satisfy requirements of NEPA

Magistrate concluded
EIS adequate

Magistrate: no duty
to prepare
"worst case analysis"
relevant information essential to a reasoned decision was available

discussion of off-site, secondary effects adequate

Courts apply a "rule of reason" in evaluating adequacy of EIS
take uncertainty & speculation re secondary impacts into account

in reviewing adequacy of secondary impacts discussion

Mere listing
generally inadequate
to satisfy CEQ regs

more in this EIS, but not much more
than mere listing of mitigation measures

Appeals Court reversed found EIS inadequate 833 F.2d 810
(CA9 1987)

held FS could not rely on "the implementation of mitigation measures"
to support conclusion impact on deer herd minor

Appeals: effectiveness of mitigation measures not assessed
mitigation measures had yet to be developed

Appeals: if difficulty in obtaining adequate information
to make reasoned assessment of environmental impact on deer herd

had a duty to make "worst case analysis"

Worst case analysis
formulated on basis of available information

using reasonable projections of worst possible consequences of proposed action

By focusing agency's attention on environmental consequences of proposed project

NEPA ensures important effects will not be overlooked or underestimated

only discovered after resources committed, or die otherwise cast

EIS draft and final serves larger informational role
public assured agency has indeed considered environmental concerns

in decisionmaking process

more significantly, provides a springboard for public comment

EIS "action forcing" procedures realize sweeping policy goals of NEPA 101
requires agency to take "hard look" at environmental consequences

provide broad dissemination of relevant environmental information

NEPA itself does NOT mandate particular results
simply prescribes necessary process

although procedures certain to affect agency decisionmaking

NEPA does NOT constrain agency from deciding

other values outweigh environmental costs

if adverse enviro. effects of proposed action adequately identified & evaluated.

Here, FS decided benefits of ski area outweighed degradation of deer herd
notwithstanding loss of 15%, 50%, or even 100%

NEPA merely prohibits uninformed,

rather than unwise agency action

other statutes may impose substantive environmental obligations on federal agencies

Important ingredient of EIS
discussion of steps to be taken to mitigate adverse environmental consequences

Omission of reasonably complete discussion of possible mitigation measures
would undermine "action forcing" function of NEPA

without discussion can not properly evaluate severity of adverse effects

Fundamental distinction

between requiring discussion of mitigation measures
and substantive requirement that complete mitigation plan be actually formulated and adopted

Inconsistent with NEPA's reliance on procedural mechanisms
as opposed to result-based standards

NEPA does not require agencies to adopt any particular internal decisionmaking structure

Appeals court, therefore, erred in requiring action
and imposing duty that specific measures WILL be employed

'77 Carter directed CEQ to promulgate "worst case requirement" regs
'86 CEQ replaced regs

Prepare summary of existing credible scientific evidence relevant in evaluation

when information unavailable concerning a reasonably foreseeable significant environmental consequence

Evaluation based upon theoretical approaches or research methods
generally accepted in the scientific community
40 CFR 1502.22

Regs retain duty to describe consequences of remote, but potentially severe, adverse impacts
based upon evaluation of scientific opinion

rather than conjectural worst case analysis

CEQ: requiring EIS to focus on reasonably foreseeable impacts
generate information and discussion on consequences of greatest concern to public

and greatest relevance to agency decisionmaking
CEQ regs
(40 CFR 1502.20)

agencies are encouraged to tier their environmental impact statements
to eliminate repetitive discussions

and to focus on actual issues ripe for decision at each level of environmental review

AUDUBON SOCIETY OF CENTRAL ARKANSAS v. DAILEY
761 F.Supp. 640
(E.D.Ark. 1991)

Action to enjoin COE issuance of Section 404 "dredge & fill permit"
construct road bridge & jogging path over creek.

Ps environ. organization and individual users of parks;
permit issued, not used.

COE prepared Environmental Assessment, determined not major federal
action significantly affecting quality of environment, ergo. no EIS required.

'87 City bonds issued, 12/90 ordinance appropriated funds for project; 404
permit by COE 8/90 after public hearings, agency inputs, & EA.

Final EA no mention resid. engineer recommended denial
due to traffic enforcement problem.

COE consultant adverse impact on rec. uses due to 35mph & increased
traffic unrelated to rec. use.

Stated purpose of project in increase recreational access.
COE acknowledged increased traffic adverse affect on rec.

City will take necessary control measures.

EA no impact on wetland area but no basis for conclusion

Permit no special conditions regarding traffic.

COE no practical alternative to bridging creek
except no action alternative
would not fulfill rec. access purpose

"no action" alternative would not have adverse effects of increased traffic.

None of agencies contacted in '89 aware of COE, consultant's, and City's figures re increased traffic.

Ps have not identified any special habitats, historic sites, or rare or endangered species
which will be destroyed forever & irreversibly due to project.

Administrative Procedure Act standard of review
applicable to COE's decision not to prepare EIS.

NEPA: EIS must be prepared for all "major federal actions
significantly affecting the quality of the human environment.

Significance analyzed several contexts
such as society as a whole (human, national), affected region, affected interests, locality.

Significance varies with setting of proposed action
analyze re context & intensity.

Significance intensity: severity of impact;
consider beneficial & adverse impacts.

Significant impact exists
even if Fed. agency believes on balance beneficial.

Significance factors
Affect on public health & safety.

Unique characteristics, parks, wetlands, eco. sensitive proximity.
Degree effects on human environment highly controversial.

Degree effects on human environment highly uncertain.

Establish precedent future actions, considerations with significant effects.

Whether action related to other actions with individually insignificant but
cumulatively significant impacts.

Ct. APA review: whether agency action "arbitrary or capricious."
Consider whether decision based on consideration of relevant factors
whether clear error in judgment.

Corps of Engineers decision issuance of permit not major federal action affecting environment
as a result, no Environmental Impact Statement required

Court finds COE decision arbitrary & capricious.
While COE took hard look, chose to ignore what it saw.

All facts & scientific projections showed tremendous traffic increase
will occur severely impacting recreational uses of area.

City wishful thinking commuters will take alternate route
8 stoplights, no justification.

COE not relying on reasonable opinions of qualified experts
in concluding impacts not significant

COE's own consultant & personnel made reasoned decisions to contrary
based on their evaluations of available data.

COE EA noted increased noise level, but did not discuss impact.

EA aesthetics section failed to mention traffic component.

EA observes slight atmospheric degradation due to 3x traffic increase,
merely concludes adverse impact not significant.

COE permit decision not founded on reasoned evaluation of relevant factors
decision no EIS "clear error of judgment."

Plaintiffs entitled to summary judgment that EIS is required.
COE enjoined from issuing permit,

City enjoined from fill project until EIS in conformity with NEPA completed.

Committee to Preserve Boomer Lake Park
v.
Department of Transportation
4 F.3d 1543
(10th Cir 1993)

Six residents of Stillwater, Oklahoma
living in the vicinity of Boomer Lake Park
formed the Committee to Preserve Boomer Lake Park

Filed lawsuit in district court challenging decision by Federal Highway Administration (FHWA)
"to provide federal funds for the road project
and its decision not to prepare an environmental impact statement (EIS)."

Alleged decision to fund the highway
violated section 4(f) of the Transportation Act
and agency's decision not to conduct an environmental impact statement was erroneous

Proposed road widening would cross the lake and park
taking up approximately 3.3 acres of land in Boomer Park
and another 2.4 acres of Boomer Lake for the causeway and bridge.

To mitigate the taking of 3.3 acres of parkland
the City of Stillwater provided 3.3 acres of equivalent land on Whittenberg Lake for public recreational use.

National Park Service agreed the land at Whittenberg Lake was equivalent
to the value and usefulness of the Boomer Lake Parkland being taken.

1988 Oklahoma Department of Transportation (ODOT) requested federal highway funds from the Federal Highway Administration (FHWA)
for the reconstruction of Lakeview Road.

ODOT solicited comments from local, state and federal agencies
concerning the possible social, economic and environmental effects of the proposed Lakeview Road project

ODOT initially submitted draft Environmental Assessment
(EA) and § 4(f) statement concerning the project
was rejected by the FHWA

failed to consider an alternative
in addition to a no-build alternative, which completely avoided the park.

Second draft was submitted
EA/4(f) statement which compared three alternatives:

(1) a no-build alternative;
(2) a four-lane road with a straight alignment across Boomer Lake built upon a causeway and bridge (the causeway alternative);
(3) a four-lane road with an alignment around the southern end of Boomer Lake and
(4) the park avoidance alternative.

The avoidance alternative
consisted of a southwesterly diversion from Lakeview Road's current alignment
to a point approximately 850 feet south of the section line and roughly 500 feet south of the dam. ..

FHWA accepted the new document and after a public hearing found
there was no prudent and feasible alternative to the proposed use of parkland under § 4(f) of the Transportation Act.

FHWA also issued a finding of no significant impact (FONSI)
under the National Environmental Policy Act (NEPA)
42 U.S.C. §§ 4321- 4347 (1988).

Federal district (i.e. trial) court granted the defendants' motion for summary judgment.

"under § 4(f) of the Transportation Act, the FHWA could have reasonably believed that all of the alternatives to the proposed project while ... arguably feasible
were not prudent and presented unique or uniquely difficult problems."

The district court also held that "the FHWA's decision to issue a FONSI
was not arbitrary and capricious
and the Committee failed to allege any substantial environmental issues omitted from the Agency's consideration."

On appeal, the Committee contended the FHWA violated section 4(f) of the Transportation Act
in approving the use of federal funds to construct a highway that would use parkland.

Section 4(f) of the Transportation Act, 49 U.S.C. § 303(c) (1988)
Secretary of Transportation]may approve a transportation program or project ...
requiring the use of publicly owned land of a public park [or] recreation area ... only if--

Section 4(f) of the Transportation Act, approve project, only if:
(1) there is no prudent and feasible alternative to using the land; and (2) the program or

project includes all possible planning to minimize harm to the park [or] recreation area resulting from the use.

Committee did not allege that "the highway project failed to include the requisite planning to minimize harm."

Accordingly, specific issue was " whether there was a prudent and feasible alternative."

Supreme Court in landmark case of Citizens to Preserve Overton Park v. Volpe
401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)

"instructed reviewing courts to conduct a three-tiered inquiry of the Secretary of Transportation's decision to fund a highway across land covered by section 4(f)":

First, the reviewing court is "required to decide whether the Secretary acted
within the scope of his authority" under § 4(f).

In this initial inquiry, we "must be able to find
that the Secretary could have reasonably believed that in this case there are no feasible alternatives
or that alternatives do involve unique problems."

Second, the court must decide whether the Secretary's ultimate decision
was "arbitrary, capricious
an abuse of discretion
or otherwise not in accordance with law."

This inquiry involves determining "whether the Secretary's decision
was based on a consideration of the relevant factors
and whether there has been a clear error of judgment."

Finally, the Supreme Court instructs reviewing courts to determine
whether the Secretary's action followed the necessary procedural requirements.

In reviewing the district court's conclusion to uphold the agency's decision
we apply the above inquiry without deference to the district court.

Our review must be probing and thorough
but "the Secretary's decision is entitled to a presumption of regularity."

On appeal, the Committee argued that "the administrative record is devoid
of any discussion on why the alternative routes were not prudent and feasible
and thus claims the Secretary did not act within the scope of his authority pursuant to section 4(f)."

Applying "the first Overton Park inquiry," the appeals court acknowledged
that "[t]he Secretary of Transportation may only approve federal funding of a highway through parkland
if "there is no prudent and feasible alternative." 49 U.S.C. § 303(c)."

There is no "feasible" alternative if "as a matter of sound engineering
it would not be feasible to build the highway along any other route."
Such a determination provides for little administrative discretion.

The term "prudent," in contrast, involves a common sense balancing of practical concerns,
but section 4(f) requires the problems encountered by proposed alternatives to be "truly unusual"

or "reach extraordinary magnitudes" if parkland is taken.

Thus, although costs and community disruption should not be ignored in the balancing process
the protection of parkland is of paramount importance.

Government does not suggest that the alternative routes were infeasible
limit our review to whether the alternatives were imprudent.

As indicated in Overton Park, highway projects will often be more direct in route, cost less
and involve less community disruption if built over parkland.

Thus, if Congress intended these factors to be on an equal footing with preservation of parkland
there would have been no need for the statutes.

Here, the environmental assessment (the EA/4(f) statement) "set forth a number of reasons
why the alternatives were imprudent."

EA/4(f) statement analyzed projected traffic volumes
and the ability of the avoidance and causeway alternatives to accommodate the traffic.

From a traffic analysis standpoint causeway alternative
was deemed the "best and only alternative."

Additionally, causeway route was deemed beneficial
by providing better fishing access, improving water quality
And connecting the east and west sides of the park
(the road was designed to include a walkway/bikeway parallel to the road).

Appeals court found that "the record indicates the Secretary acted within the scope of his authority
could reasonably have believed the alternatives involved unique problems
which rendered them imprudent."

The inability of an alternative to accommodate future traffic volumes
is justification for rejecting that alternative.

Similarly, if an alternative does not satisfactorily fulfill the purposes of the project
which in this case included providing an east-west transportation route through town, then the alternative may be rejected...

Safety and cost concerns are also valid considerations
in rejecting an alternative.

Although none of these factors alone is clearly sufficient justification to reject the alternatives in this case
their cumulative weight is sufficient to support the Secretary's decision..

Court must consider whether the Secretary's decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment..

We are instructed to conduct a careful and searching inquiry into the facts
but once we are satisfied the Secretary took a "hard look" at the relevant factors

we are not to substitute our judgment for that of the agency.

Committee alleged violations of NEPA (the National Environmental Policy Act).

NEPA requires agencies to prepare a detailed statement of the environmental impact
of any "major Federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C).

The Council on Environmental Quality (CEQ) has promulgated regulations
to be followed by agencies in deciding whether to prepare an environmental impact statement (EIS) under NEPA.

These regulations allow agencies to conduct an environmental assessment (EA)
in order to decide whether an EIS or a FONSI is appropriate.

CEQ regulations allow agencies to adopt their own procedures which
supplement and help promulgate the CEQ regulations.
40 C.F.R. § 1507.3 (1992).

Department of Transportation adopted such a procedure in Order 5610.1C...

EA is essentially a more concise and less detailed version of an EIS.

One of the principal purposes of an EA is to briefly provide sufficient evidence and analysis
for determining whether to prepare an EIS or a FONSI."
40 C.F.R. s 1508.9(a)(1) (1992).

By conducting an EA, an agency considers environmental concerns
yet reserves its resources
for instances where a full EIS is appropriate.

EA must "include brief discussions of:
need for the proposal
alternatives
environmental impacts of the proposed action and alternatives
and a listing of agencies and persons consulted.
40 C.F.R. s 1508.9(b) (1992)...

NEPA has twin aims.

First, it places upon an agency the obligation to consider every significant aspect of the environmental impact of a proposed action.

Second, it ensures that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process.

Agencies are not, however, required "to elevate environmental concerns over other appropriate considerations,"
but instead, are required to take a "hard look" at the environmental consequences
before taking a major action.

NEPA is essentially procedural
in that it does not require major federal actions to have no significant environmental impact
it only requires that the environmental impacts be considered in the decision process.

On appeal, the Committee argued that "the FONSI was improperly issued
because the highway would necessarily have a significant effect on the human environment of Boomer Lake and Park
and, therefore, an EIS was required."

An agency's decision to issue a FONSI and not prepare an EIS is a factual determination
which implicates agency expertise
accordingly, is reviewed under the deferential arbitrary and capricious standard of review.

By challenging the FONSI, it is the Committee's burden
to establish the agency's decision as arbitrary and capricious.

In our review, we must consider whether the decision
was based on a consideration of the relevant factors
and whether there has been a clear error of judgment.

This inquiry must be searching and careful
but the ultimate standard of review is a narrow one.

Committee contended that "the FHWA failed to take a hard look at the adverse environmental effects associated with the highway's construction."

(1) increased noise and visual clutter due to traffic which in turn would affect recreational and passive activities in the park;

(2) the causeway would bifurcate the lake
preventing sailboats and windsurfers from navigating the entire length of the lake
and creating a visual barrier to views of the dam and northern portion of the lake.

Appeals court: "a review of the EA/4(f) statement
reveals that the FHWA considered the claims now raised by the Committee."

EA/4(f) statement included a detailed noise pollution analysis
although focused primarily upon the impact to local residences
did note that there would be an increase in noise levels in a small section of the park.

EA/4(f) statement did not analyze the visual impact of the causeway in any detail
but did note that although some park users may consider the causeway and its traffic aesthetically displeasing,

it would appear much like it did when the road was located on the dam
except that it would be somewhat closer to the majority of the park.

As for the Committee's claim concerning boat passage under the bridge
the record indicates the bridge would allow small boats to pass underneath

Although the area available for boating would be slightly diminished due to displacement by the causeway,
"difference should not significantly hamper this activity."

Thus, since the FHWA considered the environmental impacts of the proposed highway,
including the issues raised by the Committee
the decision to issue a FONSI was properly "based on a consideration of the relevant factors" [ as required by NEPA].

"the Committee's claims of adverse environmental effects are at best speculative
and fails to convince us that the FONSI was clearly in error."

"[t]he EA/4(f) statement's discussion of the proposed project and its alternatives
indicates that the agency took a "hard look" at the environmental implications of the project
and found there would be no significant impact."

The appeals court, therefore, affirmed the summary judgment
in favor of defendants.