Daily Development for
Tuesday, November 12, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

HIGHWAYS; PLANNING; ENVIRONMENTAL IMPACT DOCUMENTS: A material change in the statement required traffic flow between a draft and final environmental impact document requires a corresponding update of alternatives for consideration.

City of Carmel by the Sea v. Department of Transportation, 96 C.D.O.S. 6874 (9th Cir. 1996).

State and Federal transportation agencies had released jointly a draft environmental impact statement/report (EIS/R) which stated that its purpose was to improve the capacity of a highway near Carmel and to reduce crossing and turning conflicts, but which did not specify a minimum traffic flow. This draft report also discussed five alternative plans. Several years later, a final EIS/R was released. Unlike the draft EIS/R, the final version required a specific traffic flow level. Due to this changed statement of need, only one alternative, a freeway, was likely to achieve that goal. However, this alternative would require the removal of 12 acres of wetlands. The City of Carmel and others filed an action alleging that EIS/R did not meet the standards of the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA). The court agreed, holding that by materially changing the goal of the EIS/R without also considering an acceptable range of alternatives designed to meet the changed purpose, the transportation agencies failed to consider a range of alternatives that were dictated by the nature and scope of the proposed action and sufficient to permit a reasoned choice. The court held that although an agency does not necessarily abuse its discretion by changing the statement of purpose and need of an EIS/R, the revised EIS/R must continue to provide range of alternatives open to consideration.

Comment: The preparation of four new alternative designs may be more than a simple ministerial task. These alternatives cannot be simply sketched out on the back of a napkin, and full development and discussion of them can lead to cost and delay. It also can lead to the marshalling of forces opposed to certain alternatives in support of certain others. The latter, of course, is the idea. The editor has seen the process work in both regards. On occasion, the drafting of alternatives is a useless exercise, as one result appears to be the preordained optimal solution. In other cases, parties attempting to avoid impacts of the "favored" decision can utilize the consideration of alternatives to bring about key adjustments to the overall plan.

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