Southeast Alaska Conservation Council v. Federal Highway Administration

Opinion by Judge SCHROEDER; Dissent by Judge O’SCANNLAIN.

OPINION

The issue in this environmental case is whether the district court properly ordered the State of Alaska to consider improving existing ferry service between Juneau and the communities of Haines and Skagway before proceeding with expensive construction of a new ferry terminal and highway through a national forest. We hold the district court was correct under settled environmental law.

Intervenor State of Alaska appeals the district court’s judgment in favor of Southeast Alaska Conservation Council and five other groups (collectively, “SEACC”) in their suit against the Federal Highway Administration (“FHWA”), the Department of Transportation, the Forest Service, the Department of Agriculture, and individual federal officials. Alaska argues the district court erred in holding that the Environmental Impact Statement (“EIS”) issued by the FHWA for the Juneau Access Improvements Project violated the National Environmental Policy Act (“NEPA”) by failing to consider as a project alternative any plan that would improve existing ferry services in Lynn Canal, Alaska, without the construction of new roads, ferries, or…

dissenting:

The majority holds that the final environmental impact statement prepared by the State of Alaska and the Federal Highway Administration violates the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., by failing to consider certain alternatives to the State’s proposed plan to improve surface transportation to Juneau, Alaska. I respectfully dissent.

I

Under the National Environmental Policy Act (“NEPA”), a federal agency proposing a major action “significantly affecting the quality of the human environment” must prepare an environmental impact statement (“EIS”) that includes a “detailed” account of the “alternatives to the proposed action.” 42 U.S.C. § 4332 (2)(C)(iii). The EIS must “[rigorously 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).

“NEPA itself does hot mandate particular results.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 , 109 S.Ct. 1835 , 104 L.Ed.2d 351 (1989). Rather, it “simply prescribes the necessary process” by which agencies must take a “hard look” at…