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The federal court opinion described herein illustrates the procedural nature of a limited environmental review process by the federal judiciary under various federal statutes as applied to the conversion of public parkland by a local government. In the case of Protect Our Parks, Inc. v. Buttigieg, 2022 U.S. App. LEXIS 18252 (7th Cir. 7/1/2022), an organization representing a group of residents continued their opposition to the construction of the Obama Presidential Center (the Center) in historic Jackson Park on Chicago’s South Side.
Facts of the Case
In 2014, the Obama Foundation began searching for a home for President Obama’s presidential library. After evaluating several potential sites, it chose Jackson Park, a public park in the neighborhood where President Obama lived and began his career as a community organizer, law professor and state senator. The Center would feature a museum, a public library, spaces for educational and cultural events, green space, and an archive commemorating the life and legacy of the nation’s first Black President. Construction of the Center is wholly funded by the Obama Foundation.
After the Chicago City Council unanimously approved building the Center in Jackson Park, the City acquired the needed parkland from the Chicago Park District, signed a use agreement with the Foundation, and prepared to break ground. When completed, the Center will take up 19.3 acres, which amounts to about 3.5 percent of Jackson Park.
The City’s plan to build the Center in Jackson Park has been opposed from the start by Protect Our Parks, Inc., a nonprofit organization started by Chicago residents who resist conversions of Chicago parkland. Just days before the City broke ground on the Obama Center, Protect Our Parks sued to halt construction. In the complaint, Protect Our Parks alleged the City’s moving ahead with the Center had failed to comply with several federal environmental review laws.
The federal district court denied Protect Our Parks’ motion for a preliminary injunction. In so doing, the court held a preliminary injunction was not warranted because Protect Our Parks was not “likely to succeed on the merits, likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in its favor, and that an injunction is in the public interest.” Protect Our Parks appealed.
The federal appeals court agreed with the district court that “the federal government had no role in the Foundation’s or Chicago’s decision to house the Center in Jackson Park.” The federal appeals court, however, acknowledged that “the City’s approval did trigger several federally mandated agency reviews,” which Protect Our Parks had claimed were inadequate.
The federal appeals court would, therefore, consider the adequacy of the “several mandated agency reviews,” including: the National Environmental Policy Act; section 4(f) of the Department of Transportation Act; and the Urban Park and Recreation Recovery Act (UPARR Act).
NEPA Environmental Review
As described by the federal appeals court, the National Environmental Policy Act of 1969 (NEPA) requires federal agencies to prepare an environmental impact statement (EIS) for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C). Preparing an EIS is expensive and time-consuming. The average EIS takes four-and-a-half years to complete.
In some circumstances, however, the court acknowledged “agencies may instead conduct an environmental assessment (EA), a less burdensome form of preliminary review used to decide whether a proposed action will cause such significant harm to the environment that an EIS is necessary.” 40 C.F.R. § 1501.3 (2019).
Following an environmental assessment, the court noted “an agency has two choices: proceed with the full EIS, or issue a ‘finding of no significant impact,’ generally referred to as an FONSI, explaining why the proposed federal action would not significantly affect the human environment.” Further, in reviewing agency action under NEPA, federal courts apply a deferential standard of judicial review under the Administrative Procedure Act (APA) to determine whether agency action is “arbitrary and capricious.”
APA review is particularly deferential to agency decisions in areas of agency expertise. Applying the APA “arbitrary and caprious” standard of judicial review, the court would uphold agency decisions when the agency acts in accordance with applicable law; has considered all relevant factors; and there is no clear error in judgment.
In this case, the court found the National Park Service (NPS) and the Department of Transportation (DOT) had conducted a joint EA pursuant to NEPA. The joint EA by DOT and NPS had explained the City had decided to place the Center in Jackson Park and the City would close portions of three local roads to accommodate the Center.
In the EA, DOT and NPS recognized “the federal government had no say in those matters.” On the other hand, the joint EA acknowledged: “The federal government did have a role, however, in approving the new use of the parkland and funding for new transportation infrastructure in the park.” On that limited basis, the agencies had assessed the environmental impact of the following three options:
Option A, in which neither the Park Service nor the federal Department of Transportation approved the City’s plan; Option B, in which only the Park Service approved it; and Option C, in which both did.
DOT and NPS found that Alternative C best met both agencies’ goals. Moreover, the EA also concluded that “Alternative C would not have a significant impact on the environment.” As a result, “the agencies could move forward with only an environmental assessment, rather than a full-blown environmental impact statement.”
In the opinion of the federal appeals court, DOT and NPS had prepared “an exhaustive review of the direct, indirect and cumulative effects of each option, including the potential consequences on trees, wildlife, water quality, air quality, traffic control, noise and cultural resources.”
In describing limited role of judicial review under NEPA, the federal appeals court noted “NEPA is a procedural statute, not a substantive one”:
It is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process. Thus, in reviewing an agency’s compliance with the law, a court’s only role is to ensure that the agency has taken a hard look at environmental consequences that may flow from a project, not to second-guess the agency’s substantive judgment about how serious those consequences might be or what to do about them.
In this particular instance, Protect Our Parks had argued, “the agencies’ decision not to prepare an EIS was arbitrary and capricious” because “a finding of no significant impact” had not adequately examined relevant environmental impacts, including:
[T]he project requires the City to cut down about 800 trees and felling those trees may adversely affect certain migratory birds, and in part for historic preservation and other reasons.
The federal appeals court rejected this argument. As characterized by the court, Protect Our Parks had objected to “the agencies’ response to the procedural steps they took, not arguments about their failure to adhere to the required process.” In the opinion of the federal appeals court, in their EA, DOT and NPS had indeed been “very thorough” in their adherence to NEPA procedural requirements:
Their environmental assessment includes, for example, an exhaustive Tree Technical Memorandum, which catalogs the species of the trees that will be cut down and confirms that each tree lost will be replaced by a newly planted tree. The Memorandum concludes that the tree replacement plan will have an “overall neutral” impact and may even improve the park, because dying trees will be replaced with healthy ones.
Similarly, the EA includes a detailed discussion of the project’s effect on migratory birds. It considers the City’s tree replacement plan, the hundreds of acres of Jackson Park that will remain untouched by the project, and the birds’ nesting habits.
Accordingly, the federal appeals court held “NEPA requires no more” because “the record shows that the Park Service and Department of Transportation took the necessary hard look at the likely environmental consequences of the project before reaching their decisions.”
NEPA Regulations
On appeal, Protect Our Parks had also argued that “the Park Service and the Department of Transportation did not adequately consider three of the [10] factors set forth in the NEPA regulations in effect while the review was underway.” The federal appeals court rejected this argument.
In the opinion of the court, “the administrative record amply shows that the agencies considered the proper factors” and, therefore, “their decision is entitled to deference.” In so doing, the federal appeals court cited the applicable federal environmental regulations that implement NEPA: “Whether or not a project ‘significantly’ affects the environment turns on the project’s context and the intensity of its effects.” 40 C.F.R. § 1508.27(b) (2019).
Protect Our Parks also faulted the federal agencies for “ignoring the unique characteristics of Jackson Park.” The federal appeals court, however, found the joint EA had satisfied the regulatory requirement to “take into account the historical and cultural resources in the park before concluding that the Center’s effects will be minimal.”
Similarly, Protect Our Parks had contended that the agencies did not satisfy the regulatory requirement to “consider the degree to which environmental harm from the project is likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4). In so doing, Protect Our Parks had offered evidence of “controversy” from “extra-record declarations from neighbors who oppose the project.” The federal appeals court, however, noted “the controversy factor is not about whether some neighbors do not support a project.” Rather, in determining whether a project is “likely to be highly controversial, NEPA regulation would simply require an agency to consider whether there are substantial methodological reasons to disagree about the size, nature, or effect of a project.”
Cumulative Impacts
Protect Our Parks also had accused the agencies of failing to consider the “cumulatively significant impact” of the project. 40 C.F.R. § 1508.27(b)(7) (2019). Once again, the federal appeals court rejected the claim that environmental review of the project by the agencies had failed to comply with applicable NEPA regulations.
In the opinion of the court, the EA and FONSI had adequately considered the significance of cumulative impacts of the project. In so doing, the court found the agencies had simply “reached a conclusion with which the plaintiffs disagree, when it determined that the cumulative effects would be negligible, minor, or otherwise relatively small”:
The Park Service and the Department of Transportation thoroughly studied the project through the lens of the required regulatory factors before reaching their decision that no environmental impact statement was required.
Accordingly, since the joint EA/FONSI by the agencies implicated “substantial agency expertise,” the court acknowledged appropriate judicial review would find agency conclusions were “entitled to deference.”
Reasonable Alternatives
Protect Our Parks also had argued “the Park Service and Department of Transportation sidestepped NEPA’s reasonable-alternatives requirement by treating the City’s decision to locate the Center in Jackson Park as a given.” In particular, Protect Our Parks argued, “NEPA required the agencies to evaluate alternative locations for the Center throughout Chicago.” According to Protect Our Parks, a “proper assessment” would have also “examined a site in nearby Washington Park, about two miles to the west of Jackson Park.”
Protect Our Parks further claimed the decision not to question the Jackson Park site was an illegal form of “piecemealing or segmentation” of the required environmental review process. As a result, Protect Our Parks claimed the Park Service and the Department of Transportation had improperly “segmented” two aspects of the overall project by separating the federal decisions to approve the UPARR conversion to “expand roads, bike lanes, and pedestrian paths” and “the City’s earlier decision to build the Center in Jackson Park.”
In conducting an environmental review, the federal appeals court acknowledged that an agency effectively “dodges its NEPA obligations by breaking up an overall plan into smaller parts involving action with less significant environmental effects.” Further, the court found NEPA requires agencies to “study, develop and describe appropriate alternatives” to major federal projects. 42 U.S.C. § 4332(2)(E). That being said, the court noted, “NEPA reaches only major federal actions, not actions of non-federal actors,” defining “major Federal actions” as those “potentially subject to Federal control and responsibility.”
Citing Supreme Court precedent, the federal appeals court acknowledged: “where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant ‘cause’ of the effect.” Similarly, the court acknowledged the federal government had “no obligation to examine the effects of state and local government action that lies beyond the federal government’s control.”
Since “NEPA requires agencies to consider only environmental harms that are both factually and proximately caused by a relevant federal action,” the federal appeals court then determined whether NPS’s approval of the project had effectively caused the Obama Center’s placement in Jackson Park. In this particular instance, the court found the City, not the federal government, had selected Jackson Park as the site of the Obama Presidential Center. As a result, the court held the Obama Center “was not a federal project, and no federal agency had the authority to dictate to the Obama Foundation where the Center would be located.”
As a result, the federal appeals court held there was “no federal action” under NEPA, which was the alleged “proximate cause of any environmental harms resulting from the choice of Jackson Park.” Accordingly, in the opinion of the federal appeals court, “it was proper for the Park Service and the Department to confine their analysis to the portions of the project that are subject to federal review.”
Section 4(f) Review
As described by the court, the plans for the Obama Center required the closure of portions of three roads within Jackson Park, which would not require federal approval. However, to accommodate the resulting effect on traffic, the court noted “the Chicago Department of Transportation has proposed using federal funding to build or improve other roads, bike paths, and pedestrian walkways in the park.” According to the court, this use of federal highway dollars to build such replacement infrastructure would give rise to the approval requirement under Section 4(f) of the Department of Transportation Act of 1966. 49 U.S.C. § 303.
As cited by the court, Section 4(f) permits the Secretary of Transportation, through the Federal Highway Administration (FHWA), to approve federally funded transportation projects that have an impact on public parks or historic sites, so long as “(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park resulting from the use.”
The federal appeals court acknowledged the Center proposal implicated four properties protected by Section 4(f), including Jackson Park itself. In the opinion of the court, a “comprehensive analysis” by the FHWA had determined “there was no feasible and prudent alternative to using Section 4(f) properties for new transportation infrastructure, which was needed to substitute for the roads that would be eliminated.”
After considering nine alternatives to minimizing the negative impacts of the affected parks and historic sites, as noted by the court, the FWHA had selected an alternative that would “meet the project’s goals of accommodating traffic changes and improving pedestrian and bike access to Jackson Park.” In response, Protect Our Parks reiterated its general claim that the federal agencies should have considered locations for the Center outside Jackson Park.”
The federal appeals court found this Section 4(f) argument failed, applying the same reasoning in which it had rejected a similar alternate location argument under NEPA:
No federal law prohibited the City from building the Center in Jackson Park and closing roadways in connection with the project. Entities that proceed on their own dime need not meet conditions for federal assistance or approval. Because the Highway Administration could not have compelled the City to locate the Center at a different site, it was neither arbitrary nor capricious for that agency to take the City’s decision to build the Center in Jackson Park as a given — not to mention the fact that choosing a site for and building the Center is not a transportation project.
UPARR Review
The federal appeals court also considered whether the review by NPS had complied with the UPARR Act. 54 U.S.C. §§ 200501-511. As described by the court, the UPARR Act is a grant program enacted in 1978 to provide federal funds to local governments to improve urban parks and recreational facilities. Further, as cited by the court, the UPARR Act requires that any community that received a UPARR grant must maintain that land for public recreational use, unless NPS approves converting the space for another purpose.
In this case, Chicago had received UPARR grants to rehabilitate Jackson Park in the 1980s. Because Chicago wanted to dedicate about 10 acres of parkland to non-
recreational space to make room for the Obama Center’s buildings and related transportation improvements, the City sought NPS’s approval of the following partial UPARR conversion:
[T]he City proposed replacing the lost parkland by turning property on the Midway Plaisance between Stony Island Avenue to the east, and the Metra Electric Railway to the west, into public recreational space. The replacement parkland borders (and effectively extends) Jackson Park’s western border.
Under UPARR, Protect Our Parks had again claimed NPS should have considered alternative locations for the Center. As cited by the federal appeals court, UPARR regulations required NPS to consider whether a proposal to convert parkland supported by a UPARR grant evaluated “all practical alternatives to the proposed conversion.” 36 C.F.R. § 72.72(b)(1). That being said, the federal appeals court noted UPARR regulations would require NPS to approve a proposed conversion if:
(1) the conversion aligns with a local park-recovery action program, and (2) steps are taken to ensure that the community has “adequate recreation properties and opportunities of reasonably equivalent location and usefulness.”
Under the City’s plan, the federal appeals court found “the new space will include improvements, such as pedestrian walkways and a play area,” which “would yield a net gain of about 6.6 acres of recreational space in Jackson Park.” Following a review of the proposal for the Center, NPS had determined “the proposed replacement satisfied the UPARR Act’s requirements” and, therefore, NPS was required to approve “a partial conversion to make way for the Center.”
In the opinion of the federal appeals court, the Park Service review of the project had indeed satisfied statutory obligations under UPARR:
[T]he Park Service evaluated the City’s UPARR conversion proposal, found that the City had considered practical alternatives, and explained that no practical alternatives existed in light of the City’s goals.
Moreover, under UPARR, the federal appeals court held “the Park Service has no authority to force the City to move the Center to a different location.”
Conclusion
In rejecting various environmental review claims by Protect Our Parks to the location of the Obama Center, the federal appeals court concluded: “The problem with this argument is that none of the federal defendants had anything to do with the site selection — it was the City that chose Jackson Park, and the federal agencies had (and have) no authority to move the project elsewhere.” According to the court: “Federal law does not require agencies to waste time and resources evaluating environmental effects that those agencies neither caused nor have the authority to change.”
The federal appeals court, therefore, affirmed the federal district court’s denial of Protect Our Parks’ motion for a preliminary injunction.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Law review articles archive (1982 to present)