November 2022 - Parks & Recreation - 29

al 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 takPARK
S ANDRECRE AT ION . OR G | NOVEMBER 2 0 22 | Parks & Recreation
29
November 2022 - Parks & Recreation

Table of Contents for the Digital Edition of November 2022 - Parks & Recreation
