The Park and the Interstate Highway

The Park and the Interstate Highway

1. Has the administrator acted within his or her proper range of authority?

The administrator did not act within the proper range of authority. The Secretary of Transportation failed to comply with the responsibilities and duties imposed upon him by the United States Congress, mainly not to allow a federally funded public highway to run through the public park under the 1968 Federal-Aid Highway Act and the 1966 Department of Transportation Act. The provision prohibited the administrator from approving any project or program that requires the “use of any publicly owned land fronting a public park and recreation area” unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park . . . .” (Citizens to Preserve Overton Park, Inc. v. Volpe, 1971). However, the Secretary of Transportation took this Congressional command lightly by approving 90% of the cost of the Memphis project, without issuing statements or findings of opinions or reasons as required by the statutes (Cooper, 2007). By so doing, the administrator ignored his statutory duty. The Secretary of Transportation also approved the project without showing whether it included all possible planning to reduce harm to the park.

2. Were proper procedures followed?

The Administrator did not follow proper procedures as required by law. Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe (1971), which was later remanded to the Federal District Court, reviewed whether the Secretary’s actions did not follow the necessary procedures outlined under the law. The Secretary of Transportation did not adhere to his duty and responsibility to find that there was a “feasible and prudent alternative” (Citizens to Preserve Overton Park, Inc. v. Volpe, 1973). Under Section 4(f) of the 1966 Department of Transportation Act, the Administrator could not approve the use of public land or recreation area with no feasible and prudent alternatives. The Secretary did not follow proper procedures because he never considered options, and if he did, he made some errors in his interpretation of the statutory requirements (Cooper, 2007).

3. Was the decision arbitrary and capricious or abuse of discretion?

Secretary Volpe’s decision was arbitrary, capricious, as well as abuse of discretion. Section 706(2)(A) requires a finding that the decision made by the Secretary was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (Citizens to Preserve Overton Park, Inc. v. Volpe, 1971). The Supreme Court argued that to make such findings; the Court must consider “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment” (Citizens to Preserve Overton Park, Inc. v. Volpe, 1971). The Secretary did not weigh the detriment that could result from the destruction of a pubic park against the costs of alternative routes, safety considerations, and community disruption. However, the District Court decision in Citizens to Preserve Overton Park, Inc. v. Volpe (1973) found that Secretary Volpe’s decisions ignored the alternatives, one of the primary factors that could be considered before approving the use of parkland. Also, the decisions to construct the Memphis I-40 project did not satisfy the requirements of the 1970 Federal-Aid Highway Act for noise pollution limitation, the 1969 National Environmental Policy Act (NEPA), and the 1966 Department of Transportation Act (Cooper, 2007). Therefore, Secretary Volpe’s decision to approve the construction of Memphis I-40 was arbitrary and capricious or abuse of discretion.

4. Was there substantial evidence on record to support the conclusion?

There was substantial evidence on record to support the conclusion that the Secretary of Transportation had the duty to find that construction of Memphis I-40 through a public park route violated provisions of the 1970 Federal-Aid Highway Act, the 1969 National Environmental Policy Act (NEPA) and the 1966 Department of Transportation Act (Citizens to Preserve Overton Park, Inc. v. Volpe, 1973). After the Supreme Court remanded the case to the District Court, the Court found that the Acting Federal Highway Administrator, through a memorandum to his superior, Secretary Volpe, analyzed the environmental impact statement prepared under NEPA. The Memorandum discovered that “it was the determination of that Administration under § 4(f) that there was no feasible and prudent alternative to the route through Overton Park and that the proposed design included all possible planning to minimize harm to the park” (Citizens to Preserve Overton Park, Inc. v. Volpe, 1973). The District Court also noted that “whether or not we consider the affidavit and deposition as a ‘post hoc rationalization,’ the evidence is overwhelming that Secretary Volpe did not so consider alternatives” (Citizens to Preserve Overton Park, Inc. v. Volpe, 1973; Cooper, 2007). Secretary Volpe further stated that some of the other options which the State of Tennessee could consider included the use of the I-240 Circumferential, with improvements to arterial streets and alternative routes like the L & N Railroad corridor.

5. Is there a constitutional violation?

There are some constitutional violations in the Secretary’s decision. His actions to approve and permit a federally funded public highway to run through the public park without considering the alternative is a constitutional violation under the 1968 Federal-Aid Highway Act and the 1966 Department of Transportation Act. Section 18(a) of the 1968 Federal-Aid Highway Act is codified under 23 U.S.C.A. § 138, and Section 4(f) of the 1966 Department of Transportation Act is codified under 49 USC 1653(f). Both are constitutional provisions that prohibit the Secretary from approving any project or program which require the utilization of any public land fronting a public park unless he determines that there is no “feasible and prudent alternative” and he determines that all planning is done to minimize harm (Cooper, 2007). The National Environmental Policy Act is codified as 42 U.S.C.S. §§ 4321 et seq. and requires limitation of noise pollution, detailed statements/findings of environmental impact, and consideration of various environmental effects of highway projects (Cooper, 2007). Therefore, the Secretary’s decision to construct the Memphis I-40 project could violate these constitutional provisions.

6. Is there a contractual question?

The contractual question, in this case, is whether formal findings in particular adjudicatory and rulemaking proceedings apply to the Secretary’s decision to approve the construction of an interstate highway through a parkland. Section 106(a) of the 1968 Federal-Aid Highway Act (23 U.S.C. § 106(a) states that in approving the construction project plans, “the Secretary shall be guided by the provision of Section 10” and after Secretary’s approval, “it shall be deemed a contractual obligation of the Federal Government for the payment of its proportional contribution thereto” (Citizens to Preserve Overton Park, Inc. v. Volpe, 1973).

7. Is there a supranational issue?

There is no supranational issue. The issue, in this case, is between the Federal Government’s agency and States Governments. No question goes beyond the boundaries of the United States; it is an interstate issue. Federal Government assistance is extended to Local or States Governments and Planning Units to build a highway.

References

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (S.Ct., 1971).

Citizens to Preserve Overton Park, Inc. v. Volpe, 357 F.Supp. 846 (W.D. Tenn. 1973).

Cooper, P. J. (2007). Public law and public administration. Belmont, CA: Thomson/Wadsworth.