Full opinion text
JAMES R. MILLER, Jr., District Judge. OPINION This is the latest battle in the war currently being waged in the Baltimore area over the ultimate composition of its transportation system. The complaint was filed by two organizations, dedicated to preventing the construction of all or portions of the so-called “3-A System” of Federal-Aid highways in Baltimore City, and by 11 individual citizens, residents and taxpayers of Baltimore City. The complaint was originally filed on June 26, 1974, against Richard H. Trainor, Chief, Interstate Division for Baltimore City, and the Mayor and City Council of Baltimore, seeking a preliminary and permanent injunction against the opening of bids for construction work on a portion of 1-95 from Catón Avenue to Russell Street and other relief. Since the bids on the Segment were scheduled to be opened on July 24, 1974, the court, at a conference with counsel, determined to bifurcate the issues presented by the complaint in order to have presented to it, with a minimum of required testimony, the facts and legal arguments on which the plaintiffs contended they were entitled to a preliminary injunction. A hearing was held on those issues and an opinion was announced thereon by the court on July 23, 1974, denying the requested preliminary injunction. Thereafter, the complaint was amended to add Claude Brinegar, then Secretary of the U. S. Department of Transportation (USDoT), as a party defendant. In view of the public significance of the issues presented, an expedited schedule was established for preparation for trial on November 5, 1974. The court heard testimony and received evidence for two weeks and heard final argument on December 20,1974. In general, the plaintiffs have contended in this proceeding that an injunction should be issued to prevent the construction of the Segment because (1) the Environmental Impact Statement (EIS) for the Segment was unlawfully approved, (2) the construction of the Segment is inconsistent with the approved State Implementation Plan (SIP) for attainment and maintenance of the air quality standards for the Baltimore air quality region, and (3) recertification of the “3-C Process” for the Baltimore area was not made in accordance with applicable law. Background The major thrust of the plaintiffs’ contentions in this case is that a transportation systems study known as the Baltimore Regional Environmental Impact Study (“BREIS”) is so technically inadequate as to be legally incapable of constituting the basis for reasoned decision making on the part of the responsible federal officials. BREIS was originally intended to address the potential regional air pollution impact which the Environmental Protection Agency (EPA) had identified as being a consequence of various transportation system alternatives in the Baltimore metropolitan area. It grew out of a “consensus” in September, 1972, between representatives of EPA and of the Federal Highway Administration (FHWA) in which it was agreed that no further PS&E approvals would be granted by FHWA for part of the “3-A Highway System” until a regional impact consideration statement had been prepared and circulated. The study which grew out of the original consensus was expanded to supply general information of a regional nature to EPA, FHWA, and other state and federal agencies. It developed into a future planning tool for RPC and other state agencies. Alan M. Voorhees Associates (AMV), a nationally known firm in the field of transportation planning and analysis, was engaged as the consultant to supervise the study. Data which were utilized in the study came from many sources, including RPC, Maryland DoT, BAQC, EPA, FHWA, and operating departments of Baltimore City. The initial AMV consulting work was authorized on February 5, 1973, for a maximum payment of $509,324. By December 27, 1973, an additional $111,574 had been authorized. The drafts of the seven basic technical reports comprising the BREIS study and the initial findings of the study were completed shortly prior to December 13, 1973. The BREIS study purports to be an analysis of the environmental consequences of different transportation system alternatives for the region, particularly as the alternatives relate to socioeconomic impacts, VMT impacts, air quality impacts, water quality impacts, noise impacts, and environmentally sensitive areas. The alternatives considered and the target years under study may be summarized as follows: HIGHWAY ASSUMPTION YEAR 3—A Interstate Other Highways RAPID TRANSIT ASSUMPTION 1980 Complete Existing and Programmed Phase I 1980 Partial Existing and Programmed Phase I 1980 Existing and under construction Existing and Programmed Phase I 1995 Complete GDP GDP 1995 Existing and under construction GDP GDP 1995 Complete Existing and under construction GDP 1995 Existing and under construction Existing and under construction GDP The results of the initial study were reported in seven printed volumes, with a number of appendices. As a gross generalization, it may be said that BREIS concluded that there are economic benefits in the short term and long term from the construction of the 3-A highway system and of the other highway and rapid transit improvements contemplated by the GDP. It further concluded that by 1980 and 1995 projected pollutant levels in all categories of pollutants will differ only slightly among the transportation alternatives. The basic seven-volume BREIS study has been supplemented by additional studies. A draft of BREIS Tech. Memo. No. 8, dealing with an analysis of energy consumption, was prepared in August of 1974. In late December, 1973, a study was authorized for assessing the interrelationship with BREIS of transportation control strategies promulgated by EPA on December 12, 1973, as a part of the SIP. On September 18, 1974, AMV was awarded a contract to perform a traffic management study for the 3-A System in Baltimore. On May 24, 1974, PS&E approval was given by FHWA for construction contracts relating to three portions of the Segment. On July 3, 1974, PS&E approval was given by FHWA for construction contracts relating to the fourth portion of the disputed Segment. A list of the abbreviations used in this opinion appears as Appendix 6. This opinion will constitute the court’s findings of fact and conclusions of law. Scope of Review There are three agency actions challenged in this proceeding. First is the determination by the Secretary, USDoT to approve the final EIS, as supplemented. This is a responsibility placed upon the Regional Administrator of FHWA by PPM 90-1, jf 6j and upon the Secretary, USDoT, acting through the Assistant Secretary for Environment, Safety and Consumer Affairs, as required by USDoT Order 5610.1A, if 8(Z). The second agency action involved herein is the determination by the Regional Administrator, FHWA that the Segment was consistent with the SIP as required by 23 U.S.C. § 109(j) and 23 C.F.R. § 770.204(b)(3). The third agency action challenged herein is the recertification of the “3-C Process” for Metropolitan Baltimore under 23 U.S.C. § 134(a) by the FHWA Regional Administrator as the delegate of the Secretary, USDoT. LI, 2] A threshold question is whether the petitioners are entitled to any judicial review. The actions of officials of USDoT are subject to judicial review except where there is a statutory prohibition of review or where “agency action is committed to agency discretion by law.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 at 410, 91 S.Ct. 814, at 820, 28 L.Ed.2d 136 (1971); 5 U.S.C. § 701. There is no indication that Congress sought to prohibit judicial review of any of the questioned actions nor do they fall within the narrow exception “committed to agency discretion.” Citizens to Preserve Overton Park v. Volpe, supra. In reviewing the challenged actions, this court must engage in a substantial inquiry. The court must first determine whether the government officials whose actions are challenged followed the necessary procedural requirements in reaching and implementing their challenged decisions. Citizens to Preserve Overton Park v. Volpe, supra, 417, 91 S.Ct. 814; 5 U.S.C. § 706(2) (D). Secondly, the court must determine whether the governmental officials whose actions are challenged acted within the scope of their authority, that is, were their decisions within the range of choices they could legally make, did they properly construe the limits of their authority, and was there evidence before them sufficient to render it possible for them to have reasonably believed the actions they ultimately took were within the limits of their authority? Citizens to Preserve Overton Park v. Volpe, supra, 415-416, 91 S.Ct. 814; 5 U.S.C. § 706(2)(C). Lastly, the court must determine whether the decisions of the governmental officials involved were “arbitrary, capricious, or an abuse of discretion,” that is, were the challenged decisions based upon a good faith consideration of the relevant factors and was there no clear error of judgment? Citizens to Preserve Overton Park v. Volpe, supra, at 416, 91 S.Ct. 814; 5 U.S.C. § 706(2)(A). While the reviewing court is not permitted to substitute its judgment for that of the agency, the ultimate standard of review being a narrow one, Overton, supra, at 416, 91 S.Ct. 814, the reviewing court has an obligation to review substantively agency decisions on the merits to determine “whether there has been a clear error of judgment.” Conservation Council of North Carolina v. Froehlke, 473 F.2d 664 at 665 (4th Cir. 1973). See also Appalacian Power Co. v. Environmental Protection Agency, 477 F.2d 495, 506-507 (4th Cir. 1973). Discussion Validity of Approval of EIS I As previously noted, the first inquiry in determining the validity of agency action relating to the approval of the final EIS for 1-95 from Catón Avenue to Russell Street (DX 96) is whether the proper procedures were followed. Since the plaintiffs have not challenged the validity of the “4(f)” determination that there is no feasible or prudent alternative to use for construction of the Segment part of the park land comprising Carrol Park, this aspect of the combined EIS and “4(f)” statement will not be considered herein. The National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2) (C) requires an EIS to be prepared for all “. . . major Federal actions significantly affecting the quality of the human environment . . . .” Among the areas to be covered by the EIS are “the environmental impact of the proposed action” (42 U.S.C. § 4332(2) (C)(i)) and the “alternatives to the proposed action” (42 U.S.C. § 4332(2) (C) (iii)). Shortly after the adoption of NEPA, Congress passed the Clean Air Act of 1970, (P.L. 91-604, 84 Stat. 1676). A portion of that Act, now codified as 42 U.S.C. § 1857h-7, requires the EPA Administrator to review and comment in writing upon the environmental impact of any construction project for which an EIS is required under NEPA. In addition, the Federal-Aid Highway Act of 1970 (P.L. 91-605, 84 Stat. 1713) (now codified in part as 23 U.S.C. § 109(h) and § 109 (j)) was enacted which required that the Secretary of USDoT develop and promulgate guidelines, in consultation with the Administrator of the EPA, “to assure that highways constructed pursuant to this title are consistent with any approved plan for the implementation of any ambient air quality standard for any air quality control region designated pursuant to the Clean Air Act as amended.” Under NEPA, each agency of the federal government is required to: “identify and develop methods and procedures, in consulation with the Council on Environmental Quality established by subchapter II of this chapter, which will ensure that presently. unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations.” Furthermore, NEPA provides that: “All agencies of the Federal Government shall review their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance with the purposes and provisions of . . . [NEPA] and shall propose . . . such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this chapter.” Based upon its mandate under NEPA and in specific response to the directives of Executive Order 11514, the CEQ published guidelines for federal agencies in the preparation of environmental impact statements. These guidelines, consistent with §§ 4332(2) (B) and 4333, placed the primary responsibility upon each individual federal agency to prepare its own NEPA procedures. (CEQ Guidelines, ¶ 3(a), 36 F.R. 4724 (1971)). As a result, USDoT, in 1971, prepared its guidelines relating to the processing within its department of a final EIS, USDoT Order 5610.1A. Paragraph 8i(l) requires that a final EIS, together with all comments which were received from the circulation of the draft EIS, be submitted to the Office of Environment and Urban Assistance (TEU) for USDoT for concurrence. Paragraph 81(2) provides that the final EIS will be considered concurred in by TEU unless notification to the contrary is sent out by TEU within two weeks. Upon concurrence, ([ 8m provides that TEU is to send the final EIS to CEQ. Under [[ 8n, no administrative action is to be taken sooner than 30 days after the final EIS has been sent to CEQ and has been made available to the public. FHWA, on October 14/1972, promulgated PPM 90-1 as its response to the mandates of NEPA, Executive Order 11514, and the CEQ Guidelines that FHWA produce its own procedures for the preparation of environmental impact statements. Under ¶ 6] of PPM 90-1, the Regional Administrator of FHWA is given the responsibility to act for FHWA in review and adoption of an EIS. Under ¶[ 6p(2), a supplemental statement to an EIS is to be processed in the same manner as a new EIS. In this case, the proposed final EIS on the disputed segment of 1-95 was sent by the Division Office of FHWA to the Regional Administrator of FHWA on January 28, 1972. Over a year later, on April 13, 1973, the Regional Administrator of FHWA (Region 3) approved the final EIS and forwarded it to the Washington headquarters of FHWA. On April 16, 1973, the Washington headquarters forwarded the final EIS to USDoT. On September 19, 1973, TES approved the combination final EIS and “4(f)” statement. Thereafter it was forwarded to the General Counsel’s office of USDoT for review. On November 16, 1973, Interim Air Quality Guidelines (23 C.F.R. 770, 38 F.R. 31677) were adopted by FHWA to comply with the mandate of the Federal Aid Highway Act of 1970. In § 770.204(b)(3) of those guidelines, provisions are made for the handling of highway projects where, as is the case here, a final EIS had been approved by the Regional Administrator of FHWA before October 15, 1973 and grading and drainage authorization was requested after January 1, 1974. Subsection (i) of that section of the Interim Air Quality Guidelines requires that the FHWA Division Engineer, in those circumstances, consult with the state highway agency to review the final EIS to determine whether or not the discussion of air quality in the final EIS is adequate. If, upon such review, it is determined that additional information or analysis is necessary, subsection (ii) of the Interim Air Quality Guidelines provides: “ . . .a supplemental EIS shall be prepared and distributed for review and comment to appropriate local, State and Federal agencies with expertise in air quality. Thirty days shall be allowed for comment by interested agencies.” (Emphasis supplied). Subsection (iii) of the Interim Air Quality Guidelines further provides: “Comments received shall be processed following the procedures outlined in PPM 90-1. Adoption of the supplement to the final EIS by the Regional Federal Highway Administrator shall be evidence of his positive finding on the consistency of the highway proposal with the State Implementation Plan.” (Emphasis supplied). While the combination final EIS and “4(f)” statement was under review in the General Counsel’s office of USDoT and as a result of questions raised there, supplemental material to the final EIS was sent to USDoT to be formally included in the final document. Among the supplemental materials furnished was a summary of BREIS (Tech. Memo. No. 7) which had been previously circulated to EPA and to BAQC as well as to other interested agencies. On March 29, 1974, the General Counsel’s office of USDoT approved the combination final EIS and “4(f)” statement. In the meantime, the Division Engineer of FHWA, in consultation with IDBC, Maryland DoT, Regional FHWA, and USDoT, upon review of the final EIS which had been prepared in large part over two years prior to that time, determined that additional information was necessary in the EIS discussion of air quality in order to comply with § 770.204(b)(3) of the Interim Air Quality Guidelines. AMV was engaged on March 7, 1974, to prepare an analysis of the effects of the subject segment of I-95 upon the level of CO in the ambient air. The HC, POX, and N02 air quality studies had previously been performed by AMV as a part of the BREIS study. On April 22, 1974, the CO microscale analysis of AMV as well as Tech. Memo. No. 3 of BREIS, containing the mesoscale analysis of HC, POX, and N02, was sent to EPA and BAQC as supplements to the final EIS for review and comment pursuant to the Interim Air Quality Guidelines, 23 C.F.R. § 770.-204(b) (3) (ii). BAQC and EPA had had Tech. Memo. No. 3 in their possession since approximately December 13, 1973, as well as the Tech. Memos, of BREIS upon which Tech. Memo. No. 3 was in part based since at least that date. On January 7, 1974, and February 5, 1974, the EPA had previously commented to IDBC and FHWA upon Tech. Memo. No. 3. On January 15, 1974, March 27, 1974, and April 22, 1974, BAQC had made comments to IDBC and FHWA in reference to Tech. Memo. No. 3. As the result of one of the comments of BAQC on April 22, 1974, concerning Tech. Memo. No. 3, a change was made in Tech. Memo. No. 3 of which EPA was formally notified by letter dated May 7, 1974. On February 19, 1974, the findings of the BREIS study were formally presented at a meeting in Washington, D.C., attended by representatives of USDoT, by Washington, Region 3 and Maryland Division representatives of FHWA, by representatives of the Washington Office and the Region 3 Office of EPA, and by representatives of BAQC. With this background, BAQC and EPA, the applicable agencies with expertise in air quality, were given 30 days to comment upon the air quality supplement to the final EIS. 23 C.F.R. § 770.204(b)(3)(ii). On May 22, 1974, EPA, by telegram, stated that it found the Segment to be inconsistent with the SIP and followed up its telegram with detailed reasons on June 5, 1974. BAQC had indicated on May '23, 1974, that it would make no further comments on I-95 in reference to air quality in addition to those comments which it had already made, but on June 4, 1974, further written comments were made by BAQC on the air quality assessment of the Segment. In the meantime Joseph Stackley, on behalf of the Division Engineer of FHWA, determined the subject segment of 1-95 to be consistent with the SIP on May 23, 1974. On June 10, 1974, a meeting took place at IDBC between representatives of IDBC, of AMV, and the Region 3 and Division offices of FHWA concerning the EPA comments of June 5, 1974. Based upon this meeting, the Division Engineer of FHWA reaffirmed the consistency determination which had previously been made by the division level. EPA and BAQC were so notified on June 11, 1974, and were furnished, a copy of SHA’s responses to the EPA comments of June 5, 1974. Pursuant to a request from the Regional Administrator of EPA, a meeting took place on June 18, 1974, with representatives of the Regional and Division offices of FHWA, and with representatives of IDBC, Maryland DoT, BAQC, and Baltimore City. As a result of that meeting, a memorandum of understanding was prepared dated June 28,1974. On August 1, 1974, IDBC responded to BAQC’s comments of June 4, 1974, relative to the Air Quality Supplement to the EIS and a copy of the response was sent to the Regional Administrator of FHWA as well as to EPA (PX 225). On August 9, 1974, the Regional Administrator of the FHWA approved the supplemental EIS relating to air quality and expressly declared that the Segment is consistent with the SIP. The reasons for the consistency determination by the Regional Administrator of FHWA are contained in a six-page statement (PX 228) attached to the letter transmitting his approval of the supplemental EIS to the Office of Environmental Policy of FHWA pursuant to 6j of PPM 90-1. The major procedural defect which plaintiffs allege is fatal to the approval of the final EIS, as supplemented, relates to the timing of its approval. They argue that the final EIS was approved by the Acting Secretary of USDoT on April 8, 1974, admittedly prior to the circulation of the air quality supplement to the EIS on April 22, 1974, a fact which, it is alleged, made the “ . . . circulations of the final EIS (in full) for 1-95, Catón to Russell, . inadequate, and therefore an inadequate basis for subsequent decision making.” This argument of the plaintiffs is premised upon PPM 90-1 and upon 23 C.F.R. § 770.204(b) (3) (iii), referred to above, which requires that comments on an air quality supplement to an EIS, received from local, state, and federal agencies with expertise in air quality, are to be processed following the procedures outlined in PPM 90-1. In considering this argument of plaintiffs, note must be taken of the fact that the regulations and statutes involved did not require the Secretary of USDoT to approve or concur in the EIS as such (PPM 90-1, ¶ 6j; USDoT Order 5610.1A ¶ SI, 8m, and 8n), but merely required approval of the Regional Administrator of the FHWA and the concurrence of the Assistant Secretary for Environment, Safety and Consumer Affairs of USDoT. The final EIS was approved by the Regional Administrator of FHWA on April 13, 1973, and by the Assistant Secretary for Environment, Safety and Consumer Affairs of USDoT on September 19, 1973. Because this project involved the use of parkland, however, a “4(f)” statement was combined with the final EIS, and the combined documents were, in fact, approved by the Acting Secretary of USDoT in the exercise of the responsibility mandated by 16 U.S.C. § 470f, 23 U.S.C. § 138, and 49 U.S.C. § 1653(f) under the procedures authorized by USDoT Order 5610.1A, If SI (b), If 9j, and |f 10. Because of the fact that the EIS also served as a “4(f)” statement the combined document was not forwarded to CEQ, as required by the applicable regulations until April 17, 1974, subsequent to the action of approval by the Secretary of USDoT. Thus, although the Acting Secretary of USDoT approved the combination final EIS and “4(f)” statement in April, 1974, after the effective date of the Interim Air Quality Guidelines, the final EIS itself had been approved by both the Regional Administrator of FHWA and by the Assistant Secretary for Environment, Safety and Consumer Affairs by September 19, 1973, prior to the effective date of the Interim Air Quality Guidelines, 23 C.F.R. 770, 38 F.R. 31677 (11/16/63). The final EIS, therefore, as distinguished from the air quality supplement to the EIS, had received its required approvals, contrary to plaintiffs’ argument, before the circulation of the air quality supplement. The comments of EPA and BAQC were, however, received and considered by the District, Divisional, and Regional officials of FHWA after the air quality supplement to the EIS was officially circulated to EPA and BAQC on April 22, 1974, even though the comments of both EPA and BAQC were received after the 30-day expressed deadline for comments had expired. The comments were considered at the meeting of June 10, 1974, and at the meeting of June 18, 1974, and were addressed in written responses at least on June 11 and August 1, prior to the final consistency determination of the subject segment of 1-95 by the FHWA Regional Administrator on August 9, 1974. These written responses by the District Office of FHWA, by IDBC, and by SHA were included in the supplemental EIS as required by PPM 90-1, |f 6i and Appendix E, |f 2h. In short, the comments were processed in accordance with PPM 90-1 as required by 23 C.F.R. § 770.204(b) (3) (iii) of the Interim Air Quality Guidelines. Plaintiffs next contend that the EIS was procedurally incompetent in its consideration of alternatives to the proposed construction of 1-95 and in its consideration of environmental impacts broader than those on the immediate vicinity of the Segment itself. In a prior decision, MAD v. Volpe, supra, 361 F.Supp. at 1385, this court said that “in making some of the decisions which amount to major federal action with respect to one or more of the roads or segments thereof in the 3-A System, the Secretary, USDoT, or his delegate, may have to consider with respect to some of the environmental impact problems, not only the environmental impact of the road or segment for which his immediate approval is requested, but also the total environmental impact which would result from the use of the road or segment under consideration if and when used in connection with other segments or roads, already built or proposed to be built.” As supplemented by the material furnished in connection with the review by USDoT’s General Counsel as well as by the air quality supplement, the final EIS contained at least enough discussion of the environmental effects of the proposed segment of 1-95 as to air quality, noise, and other environmental considerations, of the microscale and mesoscale alternatives which were considered, of the irreversible and irretrievable commitment of resources involved in the proposed action, of the economic, soliological, environmental, and other impacts of the proposed action, of the measures proposed to be taken to minimize harm and of the other subjects required to be dealt with in an EIS in order to be procedurally correct. In Part III of this opinion a more detailed description will be given of the contents of the final EIS, as supplemented. From a strictly procedural point of view, plaintiffs have made no point of the fact that design approval for the subject segment of 1-95 was granted by the Division Engineer of FHWA on May 21, 1974, prior to the expiration of the 30-day comment and review period of the air quality supplement to the final EIS. Furthermore, the plaintiffs have not asserted as an issue in this case the effect of the fact that the consistency determination of the Segment with the SIP was not made by the Regional Administrator of FHWA until August 9, 1974, which was subsequent to the date when PS&E authorization was granted for three sections of the segment of 1-95 on May 24, 1974, and for the fourth section on July 3, 1974. Those issues not having been raised before the court, no ruling is made on the question of whether or not the issuance of such authorizations and approvals was procedurally defective. Even if these design and PS&E approvals were procedurally defective, however, because of their timing, subsequent approvals of various matters relating to the construction of the Segment by the Regional Administrator of FHWA makes moot any technical deficiency in the absence of bad faith by the appropriate federal governmental officials. Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275 (9th Cir. 1973); Citizens for Mass Transit Against Freeways v. Brinegar, 357 F.Supp. 1269 (D.Ariz.1973). As stated in Part III of this opinion, the court believes the appropriate federal governmental officials acted in good faith. II The next general area of inquiry relating to the approval of the final EIS, as supplemented, is the question of whether the governmental officials involved acted within the scope of their authority in approving the final EIS, as supplemented. The action of the Regional Administrator of FHWA in approving the final EIS on April 13, 1973, and the concurrence of the Assistant Secretary for Environment, Safety and Consumer Affairs of USDoT on September 19, 1973, and the Acting Secretary of USDoT on April 8, 1974, with the Regional Administrator’s prior approval of the final EIS, as well as the action of the Regional Administrator of FHWA in approving the air quality supplement to the final EIS on August 9, 1974, are entitled to a presumption of regularity. Citizens to Preserve Overton Park v. Volpe, supra, 401 U.S. at 415, 91 S.Ct. 814. No argument has been made by the plaintiffs that those officials did not act within the range of choices potentially available to them under the appropriate statutes and regulations granting them their authority and responsibility to act, nor have the plaintiffs argued that they did not properly construe the limits of their authority. The plaintiffs do, however, strenuously argue that the evidence before the appropriate officials was insufficient to provide a basis for a reasonable belief that the factual preconditions existed which were required to exist in order to justify them in exercising the authority given them to act with approval. As to the former two points, the presumption of validity of the actions of the governmental officials is sufficient, in the absence of any challenge by the plaintiffs, to justify this court in not examining them further. As to the latter point, the facts underpinning the contention are substantially the same as those to be discussed in connection with the third area of judicial inquiry. Ill The third and last area of judicial inquiry is that generally encompassed by 5 U.S.C. § 706(2)(a). Again paraphrasing Mr. Justice Marshall in Citizens to Preserve Overton Park v. Volpe, supra, at 415-416, 91 S.Ct. 814, this area of inquiry requires a determination by the court as to whether or not the challenged decisions were based upon a good faith consideration of the relevant factors as well as upon whether or not there was a clear error of judgment in arriving at the challenged decisions. The plaintiffs allege three basic deficiencies in the EIS for the Segment. They say first that the traffic projections which were utilized in the final conclusions of the BREIS are so incompetent as to demonstrate a clear error of judgment since they were included as a part of the final EIS upon which the Secretary of USDoT made his final judgment on April 8, 1974. Secondly, the plaintiffs allege that, as a result of the errors in BREIS, all of the relevant factors were not properly and correctly considered in assessing the total environmental impact which would result from the use of the segment of 1-95 under consideration if and when it were used in connection with other segments or roads already built or proposed to be built in the Baltimore Metropolitan Area. Lastly the plaintiffs allege that inadequate consideration was given to alternatives to construction of the segment such as the use of exclusive bus lanes, rapid rail transit, reversible directional traffic lanes, and other such restrictive measures and that, therefore, all the relevant factors were not considered and there was a clear error of judgment in approving the final EIS. At the outset, the court finds as a fact that the federal decision makers at the District, Division, Regional, and National level in the FHWA, as well as in the TES section, the General Counsel’s office, and the Acting Secretary’s office of USDoT, acted in good faith in making the decisions which are in issue in this proceeding. While it is true that certain of the FHWA officials, particularly at the District and Division level, cannot be said to be subjectively impartial in their attitude to the 3-A System and the subject segment of 1-95, the same is true of certain of the Regional officials of EPA and of BAQC. Subjective impartiality is not required, however, but only an open mind, willing and able to exercise good faith objectivity in weighing the reasons, pro and con, for taking a particular action in compliance with the responsibility imposed upon that official by law. Environmental Defense Fund v. Corps of Engineers, U. S. Army, 470 F.2d 289, 296 (8th Cir. 1972), cert. denied 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160 (1973); MAD v. Volpe, supra, 361 F.Supp. at 1389. The BREIS study, a summary of which was included in the combined final EIS and “4(f)” statement, formed a major part of the factual background upon which the ultimate decisions which are challenged here were made by the highest authorities in USDoT and FHWA. Essential to the validity of the conclusions of BREIS is the technical reliability of the projections of traffic volumes which were developed in the various alternative transportation systems analyzed. In the area of need for the subject segment of 1-95, as well as in the prediction of levels of CO, HC, POX, and NO2, the predictions of traffic volumes in various target years of the several alternative transportation systems studied are crucial. Errors in traffic volume projections most likely would result in errors in conclusions based on traffic volume projections. Prediction of the future, however, is necessarily a risky business. This court is persuaded that no single methodology or technique in prediction of future traffic volumes has been empirically demonstrated to be an infallible one under all circumstances. The basic methodology utilized in the BREIS study was to assume a land use pattern and density for each of the respective alternative transportation systems to be examined. Necessarily, such a procedure involves a substantial amount of judgment to be exercised by those who performed the study. The land use predictions were performed by experienced professional land planners and traffic analysts on the staffs of RPC and AMV and were based upon examinations of factors considered most likely to influence land use patterns. While one may disagree with the results within a specific instance of the application of their professional judgment, it is impossible to say with certainty, or even with probability, that their judgment in general was erroneous. Having decided upon the respective land use which was correlative with a particular transportation system alternative, the travel patterns of all people assumed to be living and working in the region with respect to each assumed land use were then determined by using the trip generation equations developed through the application of computer techniques for the Baltimore region. The basic theory of these equations, euphemistically collectively called a “gravity model,” is bottomed upon the proposition that history repeats itself. In other words, it was assumed that there is a demonstrable relationship between, on the one hand, the social economic, and land use characteristics of a parcel of land and its availability or accessibility by various transportation modes, and, on the other hand, the number and mode of trips of persons to and from that parcel of land. The gravity models used in the BREIS were very sophisticated in their predictions of the distribution of the predicted trips on various highway links of the regional highway system and on other parts of the assumed transportation system. The basic gravity modeling technique employed in the BREIS study, however, is more sophisticated than that which has been utilized in the past in that an attempt was made to break down, for comparison purposes, the land use assumptions into different land use and demographic assumptions for each of the alternative transportation systems being analyzed. The trip generation equations used in BREIS were based on the travel desires and choices indicated by the BMATS origin and destination study carried out by Wilbur Smith and Company in the Baltimore Region in 1962. The BMATS study did not, however, reflect changes, if any, in travel patterns and choices which might have been caused by the completion and operation of the Baltimore Beltway in 1963 and years following. There is doubt among professionals in the field whether a massive origin and destination study of the scope of the 1962 BMATS study should be repeated at the present time to determine whether or not there is any major change in the trip generation relationships which have been caused by the completion and operation of the Baltimore Beltway and other major projects. While it would appear to this court that it is desirable to have as much information as reasonably possible in determining the continuing validity of assumed equations for the projection of future traffic volumes, the court does not believe it appropriate or necessary for it to attempt to set itself up as a super professional transportation analyst or- planner to state that the equations are necessarily in error solely because they were based upon the BMATS study of 1962. The plaintiffs charge most vigorously that the traffic projections of BREIS are understated in all alternatives which include as a component the 3-A System, because the equations do not explicitly contain a factor for “generated” traffic. “Generated” traffic is a term utilized by professional planners and transportation analysts to refer to a phenomenon of combined additional trips on an old road and a generally parallel new road which are greater than those additional trips which can be accounted for simply (1) by diversion of existing traffic from other routes in the general vicinity and (2) from normal growth of traffic in general over a given period of time. There is a dispute among professionals in the fields of transportation planning and analysis as to whether or not the phenomenon of “generated” traffic can be said to exist on a regional basis as opposed to a specific highway link or series of links basis. Furthermore, while transportation planners and analysts talk about “generated” traffic, the phenomenon is not clearly understood, and they do not know the destinations of such traffic or the purposes of the trips which are involved in such traffic. At least some of the generally assumed causes of “generated” traffic were taken into consideration implicitly in the BREIS methodology in that a factor was included (1) for trips diverted from other forms of transportation, (2) for trips which would have been made to other destinations or from other origins if the new route had been less attractive, (3) for traffic changes caused through sophisticated and sensitive changes in land use, and (4) for traffic changes caused by changes in demographic patterns assumed for the various transportation system alternatives. There is no evidence of any generally accepted methodology among transportation planners and analysts for the inclu-, sion of a factor which explicitly represents other causes of “generated” traffic in a mathematical travel simulation model used for travel forecasting on a region-wide basis for a region comparable in size to Baltimore. Whether “generated” traffic should or can be explicitly taken into account in travel forecasting of a regional type such as is sought in BREIS is a matter of reasonable debate among transportation planners and analysts. To the extent that “generated” traffic is generally accepted to be appropriate to consider in gravity model formulae in reference to a single facility, such traffic was taken into consideration in the travel forecasts employed in BREIS, within the state of the art of travel forecasting, by the data and methodology applied in BREIS on a system-wide basis. As a part of the 3-C Process, a validation check was made of the simulation formulae utilized for traffic projections and forecasts in the Baltimore region which were used in the BREIS study. The verification process for the models and submodels used in the BREIS for traffic projections compared theoretical simulated projections of VMT for 1970 with extrapolated VMT based upon actual counts for the same year. It was known that the models would not give an absolutely perfect representation of observed 1970 travel. Rather, it was expected and hoped that they would give the approximate or rough orders of magnitude of the level of the observed 1970 travel. It was also sought to be determined whether the models appeared to show any consistent bias and whether roughly correct levels of travel were shown to have taken place in the correct transportation corridors. For purposes of the evaluation, traffic counts were obtained from the State Highway Administration and from local jurisdictions. There were actual traffic counts for the simulated crossing of a regional line of division known as the Gwynns Falls screen line. At the Gwynns Falls screen line, the aggregate simulation is 5.6% higher than the aggregate adjusted observed traffic count for 24 hours. The simulation is 40.4% higher for peak periods. Figure 1 of plaintiffs’ Exhibit 239 reflects the ratio of simulated traffic to counted traffic for 24-hour and peak periods at 22 cutlines. The counts used on these cutlines were actual, rather than extrapolated, counts. The cut-lines were selected for places which were thought would tell something useful about the way the model was simulating ground conditions, but could only be established at places where actual counts were available for adjacent facilities crossing a corridor cutline. The average of the 22-cutline 24-hour ratio is 95.-04% in the simulation to the actual counts. The average of the peak period ratios for the 22 cutlines is 20.89% higher for the simulation than the actual counts. A comparison was also made between the adjusted counts of vehicles crossing the external cordons and the simulation. The aggregate simulation was .3% higher than the aggregate adjusted counts of the crossings of the external cordons. Table 2 of plaintiffs’ Exhibit 239 presents comparisons, by volume range of facilities, for the number of count observations actually obtained to the volume simulation for those highway links at the point at which the count was obtained. In volume groups below 30,000 ADT, the simulation is slightly lower than the adjusted counts for 24 hours. For the adjusted range in excess of 30,000 ADT, the counts are 21% higher than the simulation for 24 hours. For the peak period volumes, the simulation is slightly higher for volumes ranging up to 4,000 vehicles, but the counts are 22% higher than the simulation for the 18 observations involved in the comparison for peak volumes of 4,000 or more. In order to make the comparison of the simulated VMT to the actual VMT, it was necessary to make certain assumptions since traffic counts were available on only approximately 25% of the links in the simulation network. In addition, not all of the actual traffic counts comprising that 25% of the links were made in 1970 and many of those counts were factored to 1970 from counts made as early as 1968 and as late as 1972. In a number of cases, the actual traffic counts were not adjusted for multiple axle vehicles. In computing Table 3 of plaintiffs’ Exhibit 239, the actual count, as adjusted for 1970, was used for each link for which an actual count was available and multiplied by the length of that link in order to arrive at vehicle miles traveled. For those links for which an actual count was not available, the average of the counts for links within the strata for which counts were available was used as the count for that link. Each average link count was then multiplied by the length of that link in order to arrive at estimated vehicle miles traveled for that link. The total of all such links within a stratum was presented in Table 3 as the actual count. The VMT comparisons in Table 3 reveal that the model simulates 93.3% of VMT for freeways in high intensity areas. The average for freeways in all areas is 86.8%. The average for principal arterials in all intensity types areas is 84%. The average for collectors is only 45%. The regional average is 79.4%. Mr. Ockert of the Regional Planning Council and others of the professional planners involved in the BREIS study believed that the relationship in Table 3 tended to show a bias which overstated the actual VMT in relation to the simulated VMT. Their reasoning was based upon the premise that the traffic counts which were available for use in the year 1970 were on highway links on high volume roads on which there was some problem which had precipitated the taking of the traffic count in the first instance and that the use of those traffic counts, as an average to be used in the comparison as the link count for those links for which there was no actual count, would overstate the actual VMT. In other words, the professional people involved in traffic forecasting in this area were of the opinion that the links whose traffic counts were used as the basis for the averaged computation of counts for links for which no actual counts were available were not representative of all links in that stratum. The participants in the validation check then examined the simulated volume for each of the 4,400 links in the simulation network. The average of the simulation links was determined for those links in a stratum for which counts were available and was compared to the average count of all stratum links determined by simulation. This comparison showed that the average of simulation counts for links for which counts had been taken was higher than the overall average by simulation of all links in the stratum. It was, therefore, concluded to present the VMT comparison in the travel simulation model validation report (PX 239), on an alternative basis, in an additional table to compensate for the presumed bias. The VMT for links for which actual counts were available was computed by the use of the actual counts in the same manner as the VMT for those links was computed for inclusion in a stratum in Table 3. For those links for which there were no counts, however, the mean of the counts on links within the stratum for which counts were available was adjusted by a factor, the numerator of which was the average simulated count for all links within the stratum and the denominator of which was the average of all counts within the stratum for which counts had been obtained. On this adjusted basis, as is shown in Table 4 of the validation report (PX 239), the model simulated 107.7% of VMT for freeways and high intensity areas and 95.6% for freeways overall. The regional average for all road and area types was 85.8%. The difficulties in the validation check caused by the fact that actual counts, factored in a uniform method to the year 1970 and taken by uniform procedure, were not available for all highway links in the various strata has caused the RPC and the state highway officials to embark upon a program designed to eliminate this difficulty in the future. Beginning in the summer of 1974, traffic counts are being taken for planning purposes at random locations of links for different strata. The purpose is to be able to estimate VMT by using counts that are completely free of bias so that the defendants will not have to go through the procedure which was found necessary in the adjustment of counts for the 1970 alternative comparison. The counting program will be uniform in the methodology of taking the counts as well as in the factoring of those counts to arrive at 24-hour and peak period values. It is true that the adjustment of “actual” VMT reflected in the difference between Table 3 and Table 4 of plaintiffs’ Exhibit 239 is not itself proof that the gravity model and submodels utilized in the Baltimore region are functioning correctly. The larger differences between the simulated results and the “actual” counts in Table 3 were assumed by the RPC and other groups responsible for parts of the BREIS to be caused by a “bias” in the use of higher than actual counts, but, of course, it is conceivable that the differences could have been caused by a failure of the models to project VMT to as high levels as were actually occurring. This, in fact, is the thesis of Mr. Morris, the expert for the plaintiffs, who stated his belief that the failure of the BREIS models to include a factor for “generated” traffic, rather than a bias in favor of overstated actual counts, is what resulted in the differences between simulated results and the “actual” counts in both Table 3 and Table 4. While he may well be correct, there is considerable credible expert opinion to the contrary. As the techniques of traffic forecasting are refined in the future, just as they have been in the past, and as the 3-C Process initiates more in-depth analyses and examinations of the BREIS models and sub-models, and as more current origin and destination studies are undertaken as a part of the overall continuing planning process in this area, the BREIS models may be found to require extensive revision and recalibration. At the time that this study was initiated and completed, however, and at the time the decisions based thereon were made concerning the Segment, the BREIS model and submodels, and the methodology which was utilized in preparing the traffic projections in issue here fairly represented and were within the state of the art. An agency processing an EIS and making judgments required to be made by NEPA and related statutory mandates is not required to accumulate “ . . . the sum total of scientific knowledge of the environmental elements affected by a proposal.” EDF, Inc. v. Corps of Engineers of U. S. Army, 348 F.Supp. 916, 926 (N.D.Miss.1972), aff’d, 492 F.2d 1123 (5th Cir. 1974). Not all experts in the field need agree with the conclusions contained within the EIS nor does the law require that a court find the EIS is scientific perfection. Life of the Land v. Brinegar, 485 F.2d 460, 472-473 (9th Cir. 1973); Redding v. Morton (D.Mont.1974) (6 E.R.C. 1887). In addition to the alleged error of BREIS as a result of the fact its equations were based upon a 1962 origin-destination study and of the alleged failure to consider “generated” traffic, plaintiffs assert other reasons why the BREIS is substantively invalid and, therefore, does not form.a proper basis for the responsible officials to have considered “. . . not only the environmental impact of the road or segment for which . . . immediate approval [was] requested, but also the total environmental impact which would result from the use of the road or segment under consideration if and when used in connection with other segments or roads, already built or proposed to be built.” MAD v. Volpe, supra, 361 F.Supp. at 1385. BREIS Tech. Memo. No. 2, entitled “Travel Simulation and Traffic Analysis” stated certain assumptions which were made in the study. Among those assumptions were the following six which the plaintiffs have challenged: 1. “Total travel demand is invariant with system supply. The total number of person trips is a function of social and economic characteristics which vary by alternative only and does not vary either with the amount of highway or transit system available or with the cost of travel.” \ 2. “The relative costs of using transit as compared to highway travel will be approximately stable.” 3. “No restrictions such as gasoline rationing or limitation of parking supply will be imposed.” 4. “Travel response to such factors as travel time and travel costs will remain constant over the 25-year forecasting period.” 5. “By 1980, 28 miles of the Phase 1 Rapid Transit System with a coordinated bus system will be in operation.” 6. “By 1995, the full six-corridor Rapid Transit System .with a coordinated bus system will be in operation.” A variable for system supply was not expressly placed in the person-trip generation equation used in the BREIS travel forecasts. Professional opinion is uncertain as to the direct relationship, if any, of the availability of highway facilities on a regional basis to the total number of regional person-trips generated. In BREIS the total number of trips made by people was directly related to social and economic characteristics, such as population, employment, labor force, automobile ownership, and income levels. These socio-economic characteristics vary with the supply and characteristics of the transportation system. The system supply therefore, implicitly, rather than explicitly, influenced the number of person trips generated under the methodologies and equations employed in BREIS. BREIS did reflect differences in predicted VMT with respect to the alternative land use and transportation assumptions. The conclusions were as follows: Alternative VMT (Per 24 hours in millions) 1970 Existing 17.842 1980 Complete 3A 25.977 1980 3A less Fort McHenry Crossing 26.000 1980 No 3A 25.642 1995 Complete 3A and GDP 34.146 1995 No 3A, all other GDP 32.826 1995 Complete 3A, no GDP 32.217 1995 No 3A, no other GDP 28.599 The assumption and methodology used by BREIS in this respect was within the state of the art. As to the assumptions that there would be no gasoline rationing or limitation of parking supply and that the relative costs of using transit as compared to highway travel would be approximately stable, such assumptions in BREIS were based upon the uncertainties existing in those areas at the time that the BREIS was being prepared. Since historical fact could not be relied upon to supply the bench marks, assumptions were necessary. At the time that the BREIS study was being prepared in 1973, the effects of the so-called energy crisis were not generally known or recognized. It was not until late 1973 that the price of gasoline rapidly escalated and it became apparent that petroleum products, particularly gasoline, would remain at a higher relative cost than other items in our inflationary economy. Since the fall of 1973, transit costs to the riders thereof have decreased in relation to the costs of operating an automobile. New studies have been undertaken, however, as part of the 3-C Process in the Baltimore region to evaluate the effect of the energy crisis on the transportation plan. These studies, now substantially complete, will be a part of the information available when additional segment authorizations are requested. The assumptions of the BREIS that there would be no transportation restrictions, such as gasoline rationing or limitation of parking supply, were made in the early spring of 1973. At that time there were alternative strategies under consideration for adoption as an SIP, but the responsible local, state, and federal government officials had not agreed as to what the plan would be. It was generally known or anticipated that there would be some restrictions on the unlimited use of automobiles, but it was not known exactly which specific plans would be adopted. It was not until December 12, 1973, that the EPA, after having rejected the SIP submitted by the Governor of Maryland, promulgated in the Federal Register its SIP for Metropolitan Baltimore which included deliberate restrictions on automobile use. That plan became law on January 12, 1974. Two basic reasons existed for the assumption in the BREIS of no automobile restrictions. The first reason was that it would have been extremely difficult and inefficient to analyze a variety of restrictive plans at a time when it was not known which plan or combinations thereof would be approved as law. Secondly, the assumption of no restrictions on the use of the automobile would enable the policy makers to see what air quality and other conditions would prevail without transportation controls in order that they could move from the least restrictive measures to the more restrictive measures in the event that air quality and other conditions required increased restrictive measures on the use of automobiles. On December 27, 1973, a contract was made with AMV to perform an analysis of the effect of the SIP strategies as a supplement to the BREIS under the continuing 3-C Process. NEPA, § 102(2)(C), does not “. . . require that every conceivable study be performed and that each problem be documented from every angle to explore its every potential for good or ill.” Sierra Club v. Froehlke, 345 F.Supp. 440, 444 (W.D.Wis.1972), aff’d, 486 F.2d 946 (7th Cir. 1973). The agency must undertake in good faith a diligent research effort “. . . which utilizes effective methods and reflects the current state of the art of relevant scientific discipline.” E.D.F. Inc. v. Hardin, 325 F.Supp. 1401, 1403 (D.D.C.1971). In the absence of empirical data or hard facts at the time that the BREIS study was being prepared, the study was not technically inadequate solely because it stated assumptions of this nature which later proved to be incorrect, particularly where steps have been taken through the 3-C Process to analyze BREIS results further in the light of later developments for use in making subsequent decisions. Compare State of Texas v. Environmental Protection Agency, 499 F.2d 289, 301 (5th Cir. 1974). It would be the height of folly to require that no technical studies could be made in the area of traffic forecasting until the sweep of external events influencing the traffic projections had stabilized. History and common sense tell us that such a statutory or judicial mandate would prevent studies from ever taking place. All that is required is that assumptions, where necessary or desirable to be made as the groundwork for a study of this type, be made in good faith and with a rational explanation. Such exists here. The assumptions of BREIS that travel response to such factors as travel time and travel costs will remain constant over the 25-year forecasting period is not seriously challenged in its validity by the plaintiffs. Under the foregoing criteria, it was an appropriate assumption. Similarly, the assumptions of BREIS relating to the extent of rapid rail transit in operation in the Baltimore region in 1980 and 1995 were appropriate. Completion of Phase One of the rapid rail transit system by 1980 was assumed in BREIS because previous transit planning had indicated that as a reasonable target year. MTA is currently estimating 1981 as the completion date for Phase One, the ceremonial groundbreaking for which has been held. The difference between the years 1980 and 1981 is relatively unimportant in travel projections since the projection techniques are not that precise. From the standpoint of air quality, Phase One has very little effect on air pollution in the short term. The full six-legged rapid rail transit system is assumed for the 1995 target year because it is the official policy of the region as embodied in the GDP. Using the criteria above set forth, these assumptions were appropriate. For reasons which are more fully discussed in reference to the finding of consistency between the plan for construction of the Segment and the approved SIP, the consideration of air quality in the BREIS also passes muster in that the relevant factors were considered in good faith and there was no clear error of judgment. Turning now to the discussion of alternatives to construction of the segment of 1-95, no point is' made by the plaintiffs that there was not adequate consideration of alternative alignments. On the contrary, the plaintiffs argue that there was not adequate consideration of alternatives to building the Segment at all in any location. On p. 7 of the original text of the final EIS, after a brief statement of the history of the study of proposed expressway systems in the Baltimore region over a 25-year period, it is stated in reference t