Legal Overview

OBJECTIVES

This portion of the tutorial will acquaint you, briefly, with the legal process associated with Section 4(f), and the history of the Overton Park case. When you have finished, you should have a basic understanding of Section 4(f) litigation and of the important role evaluations play in the legal process.

OVERVIEW

The importance of developing legally sufficient Section 4(f) evaluations cannot be underestimated when you consider the following facts:

• Next to the National Environmental Policy Act (NEPA), Section 4(f) has been the most frequently litigated environmental statute in the Federal Highway Program.
• Section 4(f) has been the most frequent cause of court injunctions halting highway projects.

Given Section 4(f)'s active legal history, it is not surprising that many of the FHWA policies concerning the statute were developed in response to court rulings. Among these policies is a requirement for solid documentation to support findings of no feasible and prudent alternatives and to demonstrate all possible planning to minimize harm.
Other FHWA policies that developed as a result of court rulings include the stipulation that all Section 4(f) evaluations receive legal review and concurrence by FHWA’s Chief Counsel's office. This office has attorneys in each of the four FHWA resource centers. A concurrence is normally issued by an attorney at the resource center serving the Division Office where the project is located.

LITIGATION

If a project's compliance with Section 4(f) is challenged, the case is litigated by the U.S. Department of Justice and FHWA in a federal district court. Every state, and the District of Columbia, has at least one federal district court. If a court ruling is appealed at this level, the case goes to one of twelve federal circuit courts of appeal.
Note that a published decision by a circuit court of appeals is binding on all future cases in the district courts of that circuit. In a few instances, various circuit courts of appeal have interpreted Section 4(f) in different ways. This means that the Section 4(f) requirements for highway projects sometimes vary, depending on what state the project is in. For this reason, when it is apparent that Section 4(f) litigation is likely, the FHWA Chief Counsel's Office strongly recommends that legal advice be sought early in project development—before an alternative is selected—so assistance can be provided to ensure an adequate administrative record of the decision-making process and a defensible decision.

If a federal circuit court of appeal's ruling is further appealed, the case goes on to the U.S. Supreme Court, but only when it chooses to hear the case. The Supreme Court has ruled on Section 4(f) only once, in the 1971 case Citizens to Preserve Overton Park v. Volpe.