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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 99-1469 <br> <br>               AIRPORT IMPACT RELIEF, INC., ET AL., <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>                 KENNETH R. WYKLE, ADMINISTRATOR, <br>             FEDERAL HIGHWAY ADMINISTRATION, ET AL., <br> <br>                      Defendants, Appellees. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>           [Hon. Robert E. Keeton, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                      Lipez, Circuit Judge, <br> <br>                    and Fust, District Judge. <br> <br>                      _____________________ <br> <br>    Peter L. Koff, with whom McGowan, Engel, Tucker & Schultz, <br>P.A. was on brief, for appellants. <br>    Stephen H. Burrington and Veronica Eady on brief for <br>Conservation Law Foundation and Alternatives for Community and <br>Environment, amici curiae. <br>    Marc P. Frey and Tinti, Quinn, Grover & Frey, P.C. on brief <br>for Sierra Club, amicus curiae. <br>    Jennifer Zacks, Assistant United States Attorney, and <br>Stephen M. Leonard, with whom Donald K. Stern, United States <br>Attorney, Thomas F. Reilly, Attorney General, Pierce O. Cray, <br>Assistant Attorney General, Administrative Law Division, William L. <br>Pardee, Assistant Attorney General, Environmental Protection <br>Division, Marilyn Newman and Mintz, Levin, Cohn, Ferris, Glovsky, <br>and Popeo, P.C. were on brief, for appellees. <br> <br>                                  <br>                       ____________________ <br> <br>                        October 1, 1999 <br>                       ____________________

         TORRUELLA, Chief Judge.  Plaintiffs-appellants Airport <br>Impact Relief, Inc. ("AIR") and individual residents of East <br>Boston filed the present action to review and set aside the <br>June 25, 1998 decision of Peter Markle, Division Administrator of <br>the Federal Highway Administration ("FHWA"), to approve the <br>Massachusetts Highway Department's ("MHD") revised plans for a <br>construction project without preparing a supplemental environmental <br>impact statement ("SEIS").  After conducting what it termed a <br>"Phase One Nonjury Trial," the district court entered judgment in <br>favor of the defendants, finding that Markle's decision to approve <br>the changes to the project without preparing an SEIS was not <br>"arbitrary and capricious."  Plaintiffs appeal, and we affirm. <br>                            BACKGROUND <br>         The Central Artery/Tunnel Project (the "CA/T Project") is <br>an extensive construction project planned in Boston, Massachusetts <br>that is designed to ameliorate traffic congestion through downtown <br>Boston and the two tunnels connecting downtown Boston with East <br>Boston and Logan Airport.  The portion of the project at issue <br>connects two new roadways (Route 1A Northbound and Route 1A <br>Southbound) with the Massachusetts Bay Transportation Authority's <br>("MBTA") Blue Line Airport Station.  We refer to this portion as <br>the Logan Airport/Route 1A Interchange. <br>         In 1985, the FHWA conducted an environmental review of <br>the CA/T Project and prepared a Final Environmental Impact <br>Statement ("FEIS").  The FHWA then approved the construction plans <br>for the CA/T Project in 1986.  In 1991, the project plans were <br>revised, and the FHWA prepared a Final Supplemental Environmental <br>Impact Statement ("FSEIS") addressing the changes to the project.  <br>The FHWA approved the revised project in its 1991 Record of <br>Decision. <br>         In 1997, MHD issued a Notice of Project Change ("NPC") <br>proposing a number of changes to the surface roads and transit <br>elements of the Logan Airport/Route 1A Interchange.  One change <br>involves extending service road SR-2 so that it continues north to <br>connect to the intersection of Prescott and Frankfort Streets.  <br>Under the previous design, SR-2 detoured east before continuing <br>north.  The proposed extension of SR-2 would result in the extended <br>portion being located approximately 750 feet west of SR-2's <br>location in the 1991 approved plans.  This would move SR-2 to the <br>west of a seven-acre parcel of land known as the Robie Parcel.  <br>Thus, SR-2 would no longer bisect the Robie Parcel or separate it <br>from the airport.  <br>         In addition to relocating SR-2, the proposed changes <br>consist of: (1) the relocation of Airport Station approximately 500 <br>feet north of its current location; (2) the redesign of Airport <br>Station's passenger entrances and bus platforms, including the <br>elimination of the planned cross-platform connection between Logan <br>Airport shuttle buses and the Blue Line trains; (3) the elimination <br>of a bus loop that would have connected both sides of Airport <br>Station; (4) changes in the elevations of ramps and roadways, <br>including raising Route 1A Southbound to as high as 36 feet; <br>(5) the realignment of Ramp T-S and service road SR-10 to Terminal <br>A; (6) the widening and extension of service road SR-10; (7) the <br>elimination of service road SR-1; (8) the redesign of Ramp 1A-S as <br>a surface roadway; and (9) the addition of service road SR-14 to <br>connect Logan Airport and Airport Station. <br>         The NPC was circulated for public comment by MHD as part <br>of the environmental review process required by the Massachusetts <br>Environmental Protection Act ("MEPA").  Several members of the <br>public, including representatives of appellant AIR, raised <br>environmental issues and concerns regarding the NPC.  On May 13, <br>1998, Massachusetts Secretary of Environmental Affairs Trudy Coxe <br>determined that the environmental effects of the changes did not <br>require MHD to prepare a supplemental state environmental impact <br>report. <br>         While the state environmental review process proceeded, <br>MHD also requested federal approval of the changes from the FHWA.  <br>On April 24, 1998, MHD submitted to the FHWA an Environmental <br>Reevaluation of the proposed changes, consisting of the NPC and <br>additional information gathered during the state review process.  <br>In the Environmental Reevaluation, MHD analyzed the environmental <br>impacts of the proposed changes and expressed its belief that the <br>FHWA need not conduct any further environmental review under the <br>National Environmental Policy Act of 1969 ("NEPA").  In a June 1, <br>1998 letter to the FHWA, Acting Deputy Regional Administrator Mindy <br>Lubber of the United States Environmental Protection Agency ("EPA") <br>expressed the opinion that the changes merited a thorough <br>environmental review and comment process under NEPA.  After the <br>FHWA reviewed the Environmental Reevaluation, FHWA Division <br>Administrator Markle issued a June 25, 1998 decision letter to MHD, <br>concurring in MHD's conclusion that the proposed changes will have <br>"negligible environmental impacts," and therefore do not require <br>the preparation of an SEIS. <br>         In July of 1998, plaintiffs filed the present action, <br>challenging the FHWA's approval of the project changes and naming <br>as defendants; (1) Markle, Division Administrator of the FHWA; <br>(2) Kenneth R. Wykle, Administrator of the FHWA; (3) Kevin J. <br>Sullivan, Commissioner of MHD; and (4) Patrick J. Moynihan, <br>Chairman of MBTA and Secretary of the Executive Office of <br>Transportation and Construction.  In Count One, plaintiffs claimed <br>that the June 25, 1998 decision violated section 102(2)(C) of NEPA, <br>42 U.S.C.  4332(2)(C), and its applicable regulations by failing <br>to require an SEIS to be prepared.  In Counts Two and Three, which <br>are not at issue in this appeal, plaintiffs claimed that the FHWA <br>violated: (1) section 4(f) of the Department of Transportation Act <br>of 1996, 49 U.S.C.  303(c) and 23 U.S.C.  138, and (2) Title VI <br>of the Civil Rights Act of 1964, 42 U.S.C.  2000 et seq.  Count <br>Three was dismissed by stipulation on October 1, 1998.  <br>         The FHWA's administrative record was filed with the <br>district court, and the parties sought to resolve the case through <br>cross-motions for summary judgment.  The district court advised the <br>parties that any motions for summary judgment would be treated as <br>motions for judgment upon the conclusion of a "Phase One Nonjury <br>Trial."   Both sides then moved for judgment in their favor upon <br>conclusion of the Phase One Trial on both Counts One and Two.  <br>         The district court conducted a three-day "Phase One <br>Nonjury Trial" to address three issues: (1) the extent to which <br>evidence beyond the FHWA's administrative record would be <br>considered in reviewing the FHWA's decision; (2) whether the <br>evidence created a genuine issue of material fact that would <br>require a Phase Two Trial on the merits of the case; and <br>(3) whether any party was entitled to judgment as a matter of law <br>at the end of the Phase One Trial.  The parties stipulated to <br>various facts, and their counsel presented the parties' respective <br>positions and argued the pending motions.  No witnesses testified <br>at the trial, but each party moved to admit additional affidavits <br>and declarations in an attempt to supplement the administrative <br>record.  Counsel for each side explained to the district court the <br>project's proposed changes and the likely effects of those changes.  <br>Counsel argued at length about the factors that the FHWA should <br>have considered and about whether those factors were in fact <br>considered. <br>         In an extensive March 25, 1999 opinion, the district <br>court: (1) granted in part and denied in part the parties' motions <br>to supplement the administrative record with affidavits and <br>declarations; (2) granted defendants' motion for judgment upon <br>conclusion of the Phase One Trial; and (3) denied plaintiffs' <br>motion for judgment upon conclusion of the Phase One Trial.  <br>See Airport Impact Relief, Inc. v. Wykle, 45 F. Supp. 2d 89, 109 <br>(D. Mass. 1999).  In ruling that defendants were entitled to <br>judgment as a matter of law, the district court first outlined the <br>numerous facts that were stipulated to by the parties.  See id. at <br>94-98.  The district court then allowed plaintiffs to supplement <br>the administrative record with affidavits from Frederick Salvucci <br>and Mary Ellen Welch to demonstrate factors that the FHWA should <br>have considered, but did not.  See id. at 98-99.  The court also <br>allowed defendants to supplement the record with affidavits from <br>Markle and the FHWA's CA/T Project Administrator, Thomas Smith, to <br>explain the steps taken by the FHWA to reach their decision.  See <br>id. at 99.  The court next addressed and dismissed each of <br>plaintiffs' claims that there were procedural flaws in the FHWA's <br>decisionmaking process.  See id. at 100-01.  The court then turned <br>to the likely environmental impacts of the project changes and <br>found that the FHWA properly considered each impact raised by <br>plaintiffs and that those impacts were not significant enough to <br>require the preparation of an SEIS under NEPA.  See id. at 101-07.  <br>The court also found that the FHWA satisfied its NEPA obligation to <br>give consideration to the concerns expressed by the EPA in the <br>June 1, 1998 letter.  See id. at 107.  Finally, the court found <br>that the FHWA's decision did not violate section 4(f) of the <br>Department of Transportation Act.  See id. at 108-09. <br>         Plaintiffs filed a timely notice of appeal and now press <br>only the issue of whether the FHWA violated NEPA in failing to <br>prepare an SEIS for the Logan Airport/Route 1A Interchange.  <br>Appellants claim that the FHWA's decision was arbitrary and <br>capricious because it did not properly evaluate the environmental <br>significance of the project changes and changed circumstances. <br>                            DISCUSSION <br>I.  Standards of Review <br>         This appeal entails two levels of review: (1) judicial <br>review of the FHWA's administrative decision, and (2) appellate <br>review of the district court's judgment upholding the FHWA's <br>decision. <br>         A.  Judicial Review of the Administrative Agency's Action <br>         Judicial review of a federal agency's compliance with <br>NEPA is governed by section 10 of the Administrative Procedure Act <br>(the "APA"), 5 U.S.C.  706(2)(A).  See Sierra Club v. Marsh, 976 <br>F.2d 763, 769 (1st Cir. 1992) ("Sierra Club II") (citing Marsh v. <br>Oregon Natural Resources Council, 490 U.S. 360, 375 (1989)).  Under <br>that section, the reviewing court shall hold unlawful and set aside <br>agency action, findings, and conclusions found to be "arbitrary, <br>capricious, an abuse of discretion, or otherwise not in accordance <br>with law."  5 U.S.C.  706(2)(A); see Sierra Club II, 976 F.2d at <br>769.  "The task of a court reviewing agency action under the APA's <br>'arbitrary and capricious' standard is to determine whether the <br>agency has examined the pertinent evidence, considered the relevant <br>factors, and 'articulate[d] a satisfactory explanation for its <br>action including a rational connection between the facts found and <br>the choice made.'"  Penobscot Air Servs., Ltd. v. Federal Aviation <br>Admin., 164 F.3d 713, 719 (1st Cir. 1999) (citing Motor Vehicle <br>Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 <br>(1983) (citation and internal quotation marks omitted)).  The <br>reviewing court must determine whether the decision was based on a <br>consideration of the relevant factors and whether the agency made <br>a clear error of judgment.  See Oregon Natural Resources Council, <br>490 U.S. at 378 (citing Citizens to Preserve Overton Park, Inc. v. <br>Volpe, 401 U.S. 402, 416 (1971), overruled on unrelated grounds by <br>Califano v. Sanders, 430 U.S. 99, 105 (1977)); DuBois v. United <br>States Dep't of Agric., 102 F.3d 1273, 1285 (1st Cir. 1996), cert. <br>denied, 521 U.S. 1119 (1997). <br>         While this is a highly deferential standard of review, it <br>is not a rubber stamp.  See Citizens Awareness Network, Inc. v. <br>United States Nuclear Regulatory Comm'n, 59 F.3d 284, 290 (1st Cir. <br>1995).  The reviewing court must undertake a "thorough, probing, <br>in-depth review" and a "searching and careful" inquiry into the <br>record.  Volpe, 401 U.S. at 415-16.  Only by carefully reviewing <br>the record and satisfying itself that the agency has made a <br>rational decision can the court ensure that agency decisions are <br>founded on a reasoned evaluation of the relevant factors.  See <br>Oregon Natural Resources Council, 490 U.S. at 378; Penobscot Air <br>Servs., 164 F.3d at 720. <br>         B.  Appellate Review of the District Court's Decision <br>         We, of course, are not the first court to review the <br>FHWA's decision; the district court has already upheld that <br>decision in a lengthy and thorough opinion.  Thus, we must <br>determine how much deference, if any, should be afforded to that <br>opinion.  Appellants argue that because the district court <br>effectively treated the proceedings below as cross-motions for <br>summary judgment, we should review its decision de novo.  See <br>Associated Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 109 <br>(1st Cir. 1997).  "[W]hen reviewing agency action, we apply the <br>same legal standards that pertain in the district court and afford <br>no special deference to that court's decision."  See id. (citing <br>Massachusetts Dep't of Pub. Welfare v. Secretary of Agric., 984 <br>F.2d 514, 521 n.5 (1st Cir. 1993)). <br>         Even so, we have previously stated that "some degree of <br>deference" or an "appropriate hesitation to overturn [the] <br>judgment" may be appropriate if a district court's determination <br>turns on factual findings, evidence presented by witnesses, or <br>lengthy proceedings in which knowledgeable counsel explain the <br>agency's decisionmaking process in detail.  See Daley, 127 F.3d at <br>109; Conservation Law Found., Inc. v. Busey, 79 F.3d 1250, 1256 <br>(1st Cir. 1996); Sierra Club II, 976 F.2d at 770; Sierra Club v. <br>Marsh, 769 F.2d 868, 871-72 (1st Cir. 1985) ("Sierra Club I").  <br>Just such a situation is presented here.  During a three-day "Phase <br>One Nonjury Trial," the district court: (1) took evidence in the <br>form of affidavits that were not part of the administrative record, <br>see Airport Impact Relief, 45 F. Supp. 2d at 98-99; (2) made <br>factual and credibility findings regarding those affidavits, see,  <br>e.g., id. at 101; and (3) conducted exactly the type of "lengthy <br>district court proceedings in which knowledgeable counsel explain <br>the agency's decisionmaking process in detail" referred to in <br>Sierra Club I and Sierra Club II.  In doing so, the district court <br>supplemented the administrative record and expressly made findings <br>based on the supplemented record regarding the FHWA's compliance <br>with NEPA.  Therefore, while we agree with appellants that the <br>district court's decision is not entitled to "substantial <br>deference," we also agree with appellees that "[w]e should show <br>proper hesitation to overturn [the] district court's judgment as to <br>the reasonableness of an agency decision."  Sierra Club II, 976 <br>F.2d at 770. <br>         However, in each previous situation in which we have <br>found such deference to be appropriate, we have found it <br>unnecessary to outline that level of deference because we concluded <br>that the district court's decision should have been affirmed even <br>if no deference was afforded.  See, e.g., id. at 770.  Because we <br>conclude similarly in this case, we again decline the opportunity <br>to more specifically refine the "some degree of deference" or <br>"appropriate hesitation" standard of review.  We leave this task <br>for another day. <br>II.  Appellants' Claim That the FHWA Should Have Prepared a <br>     Supplemental Environmental Impact Statement Under NEPA <br>         Appellants assert that several changes to the project's <br>design and changes in circumstances constitute "substantial <br>changes" and "significant new circumstances" within the meaning of <br>40 C.F.R.  1502.9(c)(1), thereby requiring an SEIS to be prepared.  <br>Appellants argue that the FHWA did not prepare an SEIS because it <br>failed to consider particular effects of the project changes.  As <br>part of this argument, appellants also claim that the FHWA relied <br>too heavily on MHD's analysis and failed to conduct its own <br>independent review of the effects of the project changes. <br>                      A.  Standard For Requiring a Supplemental Environmental <br>             Impact Statement to be Prepared <br>         Section 102(2)(C) of NEPA requires federal agencies to <br>prepare an environmental impact statement in conjunction with <br>proposals for legislation and other major federal actions that <br>significantly affect the quality of the human environment.  See 42 <br>U.S.C.  4332(2)(C).  The duty to supplement an EIS is prescribed <br>by the implementing regulations promulgated by both the FHWA and <br>the Council on Environmental Quality ("CEQ").  See Price Road <br>Neighborhood Ass'n, Inc. v. United States Dep't of Transp., 113 <br>F.3d 1505, 1509 (9th Cir. 1997).  The applicable CEQ regulation <br>requires that agencies prepare supplemental environmental impact <br>statements: (1) if the agency makes substantial changes in the <br>proposed action that are relevant to environmental concerns, or <br>(2) if there are significant new circumstances or information <br>relevant to environmental concerns and bearing on the proposed <br>action or its impacts.  See 40 C.F.R.  1502.9(c)(1).  The <br>applicable FHWA regulation requires that the FHWA prepare an SEIS: <br>(1) if changes to the proposed action would result in significant <br>environmental impacts that were not evaluated in the EIS, or (2) if <br>new information or circumstances bearing on the proposed action <br>would result in significant environmental impacts not evaluated in <br>the EIS.  See 23 C.F.R.  771.130(a). <br>         The parties agree that these regulations have been <br>interpreted to require that an SEIS be prepared if the changed <br>plans and circumstances will affect the quality of the human <br>environment "in a significant manner or to a significant extent not <br>already considered" by the federal agency.  See Oregon Natural <br>Resources Council, 490 U.S. at 374; see also Price Road <br>Neighborhood Ass'n, 113 F.3d at 1509 (stating that supplemental <br>documentation is only required when the environmental impacts are <br>significant or uncertain).  Thus, all parties agree that it is the <br>"significance" of the environmental effects of the changes that <br>determines whether or not an SEIS must be prepared.  <br>         Appellants argue that the district court required them to <br>meet an overly strict and incorrect legal standard.  Appellants <br>claim that the standard employed by the district court requires a <br>showing that the project changes will cause "substantially more <br>adverse environmental effects," as opposed to the "significant <br>effects" standard the parties now agree is the proper standard.  In <br>their opening brief on appeal, appellants argued that they should <br>not have been required to demonstrate that the effects were <br>"substantial," rather than "significant."  Appellants then backed <br>away from this claim at oral argument when they stated that they <br>were not arguing the difference between "substantial" and <br>"significant."  Instead, appellants now focus on the district <br>court's concern for "adverse" environmental effects, rather than <br>all environmental effects.  However, we first note that in at least <br>one of the district court's recitations of the standard (in Part <br>V.A. of its opinion), the court properly focused on all impacts of <br>the proposed changes, rather than merely the adverse impacts.  The <br>district court did focus on adverse impacts in two other references <br>to the standard, but this focus was entirely appropriate given the <br>circumstances of the case.  While an SEIS is apparently required if <br>project changes would significantly affect the human environment in <br>either beneficial or adverse ways, appellants have made no claim <br>that the project changes would offer significant environmental <br>advantages.  Appellants argued to the district court that the <br>project changes significantly affected the environment in negative <br>ways, and, in addressing these claims, the district court found no <br>such significant adverse effects to exist.  Therefore, we do not <br>fault the district court's inclusion of the word "adverse" in its <br>formulation of the standard on two occasions. <br>                      B.  FHWA's Alleged Failure to Consider Particular <br>             Effects of the Design Refinements and Changed <br>             Circumstances <br>         Appellants list several project changes and changed <br>circumstances and argue that an SEIS should have been prepared <br>because those changes and circumstances will significantly affect <br>the quality of the human environment.  However, with three <br>exceptions, appellants do not attempt to explain the manner in <br>which the environment will be significantly affected.  Issues <br>adverted to in a perfunctory manner, unaccompanied by some effort <br>at developed argumentation, are deemed waived for purposes of <br>appeal.  See Massachusetts Sch. of Law at Andover, Inc. v. American <br>Bar Ass'n, 142 F.3d 26, 43 (1st Cir. 1998); United States v. <br>Zannino, 895 F.2d 1, 17 (1st Cir. 1989), cert. denied, 494 U.S. <br>1082 (1990).  Therefore, we treat appellants' general and <br>undeveloped arguments regarding possible significant effects as <br>waived.  Appellants do sufficiently develop their arguments with <br>respect to three particular design refinements, and we address each <br>argument in turn. <br>                          1.  The Relocation of SR-2 and the Possibility of <br>               Airport Expansion <br>         Appellants first argue that the FHWA acted arbitrarily <br>and capriciously by failing to consider the environmental effects <br>of the relocation of SR-2 and the attendant expansion of Logan <br>Airport that would result from the relocation of a Park & Fly <br>parking lot and the transfer of the Robie Parcel to Massport.  <br>Appellants claim that the relocation of SR-2 is part of a "chain of <br>federal actions" that connects with certain state actions and will <br>eventually lead to airport expansion. <br>         In June of 1991, MHD's predecessor agency entered into a <br>Memorandum of Understanding with Massport, the City of Boston, and <br>the owner of a Park & Fly parking lot on Bremen Street.  Under the <br>terms of the Memorandum, the parties would engage in a three-way <br>land exchange under which: (1) MHD would receive the land currently <br>occupied by the Park & Fly lot for use as a buffer park; (2) the <br>Park & Fly lot would be relocated to a ten-acre site near <br>Harborside Drive and Maverick Street; and (3) Massport would <br>receive title to the Robie Parcel for possible expansion of the <br>airport.  This trilateral land exchange was explicitly made subject <br>to the occurrence of numerous events, including the acquisition of <br>funding and permits and the approval of several governmental <br>bodies.  The parties acknowledge that many of these events have <br>still not yet occurred and may not occur for up to eight years, if <br>at all. <br>         Appellants argue that the administrative record contains <br>repeated correspondence between MHD and the FHWA about the <br>trilateral land exchange, the importance of the buffer area as an <br>environmental mitigation on MHD's part, the value to Massport of <br>relocating SR-2, and the connection between the acquisition of the <br>buffer area and the transfer of the Robie Parcel to Massport.  <br>Based upon this, appellants argue that the FHWA should have <br>analyzed the possible impacts of airport expansion before <br>determining that no SEIS was needed. <br>         Appellants claim that airport expansion is an "impact" of <br>relocating SR-2.  In DuBois, we stated that the discussion of <br>impacts must include both direct and indirect effects of a proposed <br>project.  See DuBois, 102 F.3d at 1286.  Appellants admit that <br>airport expansion is not a direct effect of the relocation of <br>SR-2, but they argue that expansion is an indirect effect of that <br>action.  When attempting to delineate any such indirect effects, <br>"[t]he agency need not speculate about all conceivable impacts, but <br>it must evaluate the reasonably foreseeable significant effects of <br>the proposed action."  Id.  In addition to resolving the issue of <br>whether airport expansion is an "indirect effect" of the relocation <br>of SR-2, the question of whether airport expansion is "reasonably <br>foreseeable" is also the crux of the inquiry into appellants' <br>alternative argument that airport expansion should be considered as <br>a "cumulative impact" of this "chain of federal actions."  See 40 <br>C.F.R.  1508.7.   <br>         We find, as the district court found, that appellants <br>have not established that airport expansion is "reasonably <br>foreseeable," as courts have defined that term in this context.  <br>The Second Circuit opinion in Village of Grand View v. Skinner, 947 <br>F.2d 651 (2d Cir. 1991), is illustrative of how the term <br>"reasonably foreseeable" has been interpreted.  In that case, the <br>plaintiffs argued that the expansion in capacity of a highway, <br>considered in conjunction with possible developments in a highway <br>corridor, would ultimately require a second span of a bridge fed by <br>the highway.  Calling the plans for a second span "speculative and <br>contingent," the Second Circuit upheld the FHWA's failure to <br>explicitly address the possible bridge expansion as a cumulative <br>impact of the project change and the possible corridor <br>developments.  See id. at 660.  The court noted that any bridge <br>construction must be preceded by as much as ten years of design <br>studies and project development studies that include consideration <br>of environmental issues.  See id. at 659.  The court also stated <br>that the bridge expansion was only one of a number of proposed <br>alternatives and was therefore "neither imminent nor inevitable." <br>Id. <br>         We agree with the district court's view that the present <br>case is analogous to Grand View.  Any possible airport expansion is <br>contingent on several events that may or may not occur over an <br>eight-year span.  These include the acquisition of permits, the <br>arrangement of funding, the drafting of expansion plans, and other <br>contingencies that must occur before even the trilateral land <br>exchange can occur.  These contingencies render any possibility of <br>airport expansion speculative and, like the bridge expansion in <br>Grand View, neither imminent nor inevitable.  Therefore, we find <br>that airport expansion is not "reasonably foreseeable," as that <br>term has been defined in this context.  Thus, we cannot fault the <br>FHWA for failing to explicitly address airport expansion as a <br>"cumulative impact" of the relocation of SR-2 and other <br>developments.  Nor do we find that the FHWA acted arbitrarily or <br>capriciously in failing to consider airport expansion as an <br>"indirect effect" of the relocation of SR-2.  The relocation of <br>SR-2 certainly begins to create the possibility of airport <br>expansion, but far too much must happen before airport expansion <br>could occur for us to describe expansion as even an indirect effect <br>of the project. <br>         We find this result to be consonant with the purposes of <br>NEPA's EIS requirement.  "One purpose of the EIS requirement is to <br>'provide decisionmakers with sufficiently detailed information to <br>aid in determining whether to proceed with the action in light of <br>its environmental consequences.'"  DuBois, 102 F.3d at 1287 <br>(quoting Northwest Resource Info. Ctr., Inc. v. National Marine <br>Fisheries Serv., 56 F.3d 1060, 1064 (9th Cir. 1995)).  The EIS <br>requirement "ensures that the agency, in reaching its decision, <br>will have available, and will carefully consider, detailed <br>information concerning significant environmental impacts."  <br>Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 <br>(1989).  As pointed out by appellees, there is no "fit" between the <br>effects of airport expansion that appellants wish to be studied and <br>the decision to be made by the FHWA.  It would be futile to require <br>the FHWA to prepare an SEIS studying the environmental impacts of <br>airport expansion when the FHWA is not the entity with either the <br>authority or expertise to implement such expansion.  If and when <br>Massport acquires title to the Robie Parcel and seeks to expand the <br>airport or otherwise change the manner in which the parcel is used, <br>that proposal will be subject to the requirements of NEPA as well.  <br>If all of the necessary contingencies occur and Massport eventually <br>seeks to expand the airport, the FAA will be the federal agency <br>required to conduct an environmental review under NEPA, so there is <br>no reason or need for the FHWA to consider the effects of airport <br>expansion at this time.  Accordingly, we do not find that the FHWA <br>acted arbitrarily or capriciously in failing to consider them. <br>                          2.  Airport Station Design Refinements and Their <br>               Effect on Transit Capacity <br>         Appellants next claim that the FHWA failed to evaluate <br>the significance and consequences of the changes in the design and <br>function of Airport Station.  In particular, appellants point to <br>the allegedly negative effect that one change -- the elimination of <br>the separate bus platforms for the unloading and loading of <br>passengers -- would have on the transit capacity of the station. <br>Appellants argue that the district court discussed MHD's <br>consideration of the transit capacity impacts of the proposed <br>changes but made no findings regarding the FHWA's consideration of <br>those impacts. <br>         However, after MHD specifically determined in its <br>Environmental Reevaluation that the revised plan did not diminish <br>transit capacity from present levels, the FHWA independently <br>reviewed and evaluated MHD's conclusions before determining that no <br>SEIS was necessary.  Therefore, even though the district court, in <br>finding that the impact on transit capacity was properly <br>considered, did not specifically state that the FHWA also <br>considered that impact, we have no quarrel with the conclusion that <br>the FHWA's decision was not arbitrary or capricious in this regard.  <br>         Appellants contest this conclusion, arguing that the <br>FHWA's approval of MHD's evaluation of environmental impacts -- on <br>this issue and others -- was not preceded by the type of <br>independent review and evaluation that is required by NEPA.  The <br>CEQ regulations require that federal agencies independently <br>evaluate any environmental information submitted by applicants for <br>possible use by the agency in preparing an EIS.  See 40 C.F.R. <br> 1506.5(a); see also Essex County Preservation Ass'n v. Campbell, <br>536 F.2d 956, 959 (1st Cir. 1976) (stating that a federal agency <br>may even allow the state agency to prepare the EIS itself so long <br>as the federal agency furnishes guidance, participates in the <br>preparation, and independently evaluates the statement prior to its <br>adoption).  The regulation goes on to state that "it is the intent <br>of this paragraph that acceptable work not be redone, but that it <br>be verified by the agency."  40 C.F.R.  1506.5(a).  Appellants <br>claim that the administrative record shows that the FHWA did not <br>conduct such an independent review of MHD's data, analysis, and <br>conclusions. <br>         We disagree.  The district court accepted the declaration <br>from Markle and specifically found it to be credible to the extent <br>that it describes the steps taken by the FHWA in reviewing MHD's <br>data and conclusions.  Markle's declaration describes numerous <br>activities undertaken by FHWA staff in assessing and reviewing <br>MHD's Environmental Reevaluation and the information upon which it <br>was based.  In his declaration, Markle states that the "FHWA <br>independently reviewed and evaluated the documents and information <br>contained in the MHD Environmental Reevaluation."  He goes on to <br>note "dozens" of conversations with his staff and with MHD staff <br>"to understand fully and to clarify the information submitted by <br>MHD."  The FHWA requested and received from MHD the public comment <br>letters submitted on the changed design, as well as MHD's responses <br>to those letters.  Markle states that he and his staff <br>"participated in staff visits to the East Boston area to examine <br>the affected locations with respect to the proposed changes."  He <br>states that the FHWA utilized the documentation and information <br>generated by the state environmental review process, as well as <br>additional documentation submitted directly to the FHWA.  He notes <br>that the FHWA received and considered several letters from <br>appellant AIR in particular.  In some areas, Markle goes into more <br>detail regarding the verification of particular pieces of data <br>employed by MHD.  For instance, Markle describes at length the <br>analysis of shuttle bus travel times under the revised plan that <br>was undertaken by FHWA and how that analysis utilized, but differed <br>from, MHD's analysis.  Also, Markle states that the FHWA reviewed <br>the Airport Station design refinements and considered whether the <br>new design incorporated sufficient room for bus bays to accommodate <br>future projected needs.  According to Markle, the FHWA concluded <br>that MHD's analysis was reasonable and that the design provided <br>sufficient room for future bus bays.  In sum, Markle states that <br>the 1997-98 reevaluation at issue was the "most extensive <br>reevaluation of this kind that I have been involved with during my <br>22  years experience with the FHWA." <br>         Appellants argue that the declaration submitted by Markle <br>does not address particular issues sufficiently enough.  To the <br>extent that appellants seek a written point-by-point recitation of <br>each piece of information utilized by MHD and the particular steps <br>undertaken by the FHWA to verify that piece of information, <br>appellants are correct that they have not received it.  However, <br>such a detailed delineation is not required; in fact, none of the <br>applicable regulations require any written findings at all for the <br>determination of whether an SEIS must be prepared.  See 23 C.F.R. <br> 771.130(a); 40 C.F.R.  1502.9(c).  The declaration accepted by <br>the district court to explain the FHWA's processes need only be <br>specific enough to convince us that the FHWA complied with the <br>regulation requiring that the appropriate work be "verified" and <br>stating that it need "not be redone."  40 C.F.R.  1506.5(a).  The <br>information provided in Markle's declaration satisfies us that the <br>FHWA conducted a sufficiently independent review. <br>                          3.  The Elevation of Route 1A Southbound and the <br>               Effect on the Bremen Street Residences <br>         Appellants next argue that the FHWA failed to evaluate <br>the effects of raising Route 1A Southbound on the nearby Bremen <br>Street residences located west of the proposed roadway.  Appellants <br>argue that, under the new design, Route 1A Southbound will be <br>raised at least sixteen feet to as high as thirty-six feet above <br>grade, increasing the noise levels on Bremen Street.  Appellants <br>point to the noise analysis performed in the 1991 FSEIS, which <br>described the residences on Bremen Street as "sensitive receptors."  <br>Appellants note that MHD's own Environmental Reevaluation conceded <br>that Route 1A Southbound "would be expected to contribute to the <br>traffic noise levels at Bremen Street."  Appellants claim that <br>these noise effects are "significant" enough to require the FHWA to <br>prepare an SEIS, but were ignored by the FHWA. <br>         However, Markle's declaration clearly states that the <br>FHWA considered the proposed changes to Route 1A Southbound and <br>concluded: (1) that its overall elevation was not materially <br>different from its elevation in the 1991 FSEIS, and (2) that <br>placing the roadway section in question on a viaduct structure, <br>rather than on retained fill, would not have a significant <br>environmental impact.  Markle also notes that the new design would <br>move Route 1A Southbound further away from Bremen Street.  Markle <br>states that the FHWA reviewed these changes for noise and visual <br>impacts on the Bremen Street residences and concluded that, due to <br>the shift away from Bremen Street and the insignificant elevation <br>difference, the impacts would not be significant.  The district <br>court accepted this evaluation, finding that "it is sensible to <br>conclude" that the modest increase in height would be offset by <br>moving the highway away from the community.  See Airport Impact <br>Relief, 45 F. Supp. 2d at 106. <br>         Appellants do not dispute that this conclusion is a <br>"sensible" one, but instead argue: (1) that the district court <br>should not have accepted the Markle declaration on this point, and <br>(2) that the declaration does not state precisely what the FHWA did <br>to make its determinations.  Regarding the first argument, we need <br>only note our decision in Sierra Club II, in which we approved the <br>supplementation of the administrative record through "affidavits, <br>depositions, or other proof of an explanatory nature."  See Sierra <br>Club II, 976 F.2d at 772 (quoting Arkla Exploration Co. v. Texas <br>Oil & Gas Corp., 734 F.2d 347, 357 (8th Cir. 1984)).  Appellants <br>argue that there is nothing in the administrative record to <br>explain, so the Markle declaration is explanatory of nothing and <br>should not have been admitted.  However, it is precisely when there <br>is nothing in the administrative record that affidavits such as the <br>Markle declaration are needed and allowed under Sierra Club II.  <br>See id.  So long as the new material is explanatory of the <br>decisionmakers' action at the time it occurred (which we are <br>convinced that it is) and does not contain post-hoc <br>rationalizations for the agency's decision (which we are convinced <br>that it does not), the new material may be considered.  See id. at <br>772-73. <br>         Appellants' second argument boils down to a claim that <br>Markle's declaration is not specific enough in detailing the FHWA's <br>review process.  Appellants attempt to contrast the detailed noise <br>analysis performed in the 1991 SEIS with the less-detailed (at <br>least as documented) analysis performed here.  However, a federal <br>agency need not perform the detailed environmental analysis of an <br>EIS before it can determine that no EIS need be prepared.  Such a <br>requirement would eliminate the threshold requirements of the <br>regulations in favor of a full EIS or SEIS in every case.  This is <br>clearly not the law.  See 40 C.F.R.  1502.9(c)(1); 23 C.F.R. <br> 771.130(a). <br>         Thus, from the materials submitted by the FHWA, it is <br>clear that the FHWA properly considered the environmental effects <br>of raising Route 1A Southbound.  Therefore, we agree with the <br>district court that the FHWA's decision was not arbitrary or <br>capricious in this regard either. <br>         C.  Conclusions <br>         In sum, we find that: (1) the district court applied the <br>correct standard for determining whether the FHWA was required to <br>prepare an SEIS in light of the project changes, and (2) the FHWA <br>properly considered the environmental effects of the project <br>changes and found that those effects were not significant.  <br>Therefore, we hold that the FHWA's decision to approve the project <br>changes without requiring an SEIS was not arbitrary and capricious. <br>                            CONCLUSION <br>         Based on the foregoing, we AFFIRM the district court's <br>entry of judgment in favor of appellees.</pre>

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