Full opinion text
MEMORANDUM MORTON, Chief Judge. Plaintiff “Nashvillians Against 1-440” is a nonprofit, unincorporated association comprised of members who joined together to voice their disapproval of and, if necessary, pursue litigation concerning the proposed construction of Interstate 440 (1-440) in and around Nashville, Tennessee. Acting individually and as members of this and other groups, the individual plaintiffs have endeavored to either delay or stop completion of the proposed project. Pursuit of these objectives culminated in the filing of this civil action on December 9, 1980. Defendants are federal, state and local governmental officials who have been responsible for the planning and development of the 1-440 project. I. HISTORICAL BACKGROUND Planning for the proposed highway began in excess of 25 years prior to initiation of this suit. It appears that the original proposals regarding location were formulated under the auspices of Policy and Procedure Memorandum 20-4 (PPM) issued by the U.S. Bureau of Public Roads, which is currently known as the Federal Highway Administration (FHWA). PPM 20-4 was issued on August 4, 1954. At least as early as March of 1955 a New York consulting firm, Clarke and Rapuano, was retained to aid in the process of planning the highway. On August 10, 1955, proposed route locations for the highway were approved by the Nashville City and Davidson County Planning Commissions at a joint meeting. On September 23, 1955, the Bureau of Public Roads approved general locations for a network of interstate highways through and around Nashville. Final location approval was given by letter dated January 10,1955, with 1-440 designated at that time as Route 516. Section 116 of the Federal-Aid Highway Act of 1956, 70 Stat. 374, added to the duties of responsible officials requirements for public hearings and the consideration of economic effects of the location of Federal-Aid Highway projects, if such projects involved bypassing or going through any city, town, or village. Pursuant to the administration of section 116, PPM 20-8 was issued by the Bureau of Public Roads on August 10, 1956. It allowed consideration of projects affecting several adjacent cities, towns, or villages in one combined public hearing, provided the hearing was reasonably convenient in terms of location and time to the citizens of all the affected cities, towns, and villages. In accordance with the requirements of section 116, a public hearing was held on May 15,1957. This hearing was a combined hearing which included consideration of all the interstate projects in Davidson County. Specific descriptions were provided for both an inner loop and an outer loop. The outer loop is presently identified as 1-440. In addition to the discussion of interstate routes, consideration was also given to the potential economic impact of locating the interstate system in Davidson County. In a letter dated September 1, 1965, the Division Engineer for FHWA authorized a change in the programming status of the western section of 1 — 440 from Stage 2 to Stage 1. This action allowed reallocation of federal monies to “be used on more urgent work,” but retained the original date of authorization for studies and incidental costs in connection with the right-of-way acquisition for 1-440 as July 12, 1961. It was agreed at that time and thereafter that the State of Tennessee would be authorized to proceed with the purchase of certain tracts, including the Tennessee Central Railroad right-of-way or other properties within the designated right-of-way if such action was in the public interest or would alleviate “hardship cases.” September 1, 1965, was established as the date of eligibility for reimbursement on such acquisitions. During 1966, agreement was reached between the State of Tennessee and the Tennessee Central Railroad for acquisition of railroad right-of-way to be used for construction of 1-440 between 1 — 40 west and 1-65 south. The Tennessee Central Railroad right-of-way comprises the major portion of the proposed 1-440 right-of-way. This acquisition was made final by May 24, 1968. A public hearing concerning the design for the section of 1-440 between 1-24 and 1-65 was held on July 10,1968. Due notice of the hearing was given by publication in the Nashville Banner. On December 4, 1968, the Bureau of Public Roads authorized acquisition of the 1 — 440 right-of-way for this section. On March 28, 1969, an additional public hearing was held concerning the design for the section of 1 — 440 between 1 — 40 and 1-65. Again, due notice was given by publication. By letter on August 17, 1970, the Bureau of Public Roads authorized acquisition of the 1 — 440 right-of-way for this section. The National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852 (1970), currently codified at 42 U.S.C. § 4321 et seq., became effective on January 1, 1970. Pursuant to interim guidelines for implementing NEPA issued by the FHWA, the 1-440 project was reexamined. Officials of the State of Tennessee determined that under these guidelines an environmental impact statement (EIS) would not be required for 1-440. John S. Logan, Jr., of the FHWA indicated his approval of this determination on January 14, 1971. During 1973, suit was initiated by the National Wildlife Federation in an effort to prevent the FHWA from exempting projects from certain NEPA requirements. Pursuant to a consent judgment entered against defendants in that suit on July 23, 1973, the conclusion was reached that an EIS would be required prior to construction of 1-440. With respect to the history of the 1 — 440 project, it may be said that up to the point at which it was determined that an EIS would be required, there is no creditable allegation entertained in this action that would touch upon misconduct of any sort by local, state, or federal officials. For all practical purposes, only a few relatively minor steps remained to be taken prior to the beginning of construction. The appearance of the need to prepare an EIS may be characterized, therefore, as a somewhat precipitous event. II. PREPARATION OF THE EIS The Tennessee Department of Transportation (TDOT) formally initiated the preparation of an EIS by sending letters of initial coordination to federal agencies, state agencies, local officials, and interested organizations. This initial coordination letter, dated January 28,1974, indicated that TDOT was beginning preparation of a draft environmental impact statement (DEIS) in accordanee with section 102(2)(C) of NEPA. During the fall and winter of 1975 meetings were held between TDOT staff members and the staff of the Metropolitan Planning Commission (MPC). The purpose of these meetings was to establish a cooperative working agreement between TDOT and the MPC for preparation of certain portions of the EIS. The MPC was requested by TDOT to study the effects generated by “build” and “no build” alternatives on the following categories of environmental concern: (1) Land use impact; (2) Economic impact; (3) Sociological impact, including the impact upon ethnic and minority population areas; and (4) Impact upon public services. During 1975 and 1976 there was close coordination between the TDOT staff and the MPC staff as they worked to evaluate the environmental implications of both building and not building I-440. Documents generated by the MPC staff reflect the conclusions (a) that the purposes of I-440 as a bypass around the downtown area and as a means for relieving congestion on the inner loop remain valid; and (b) that current traffic counts and MPC traffic projections for the year 1995 indicate that without I-440 critical levels of traffic congestion will result on the major street network within the I-440 corridor and, in particular, on the inner loop. Five public meetings or workshops concerning the proposed project were held between January 29 and March 26,1977. The overwhelming conclusion drawn from citizen input at the workshops was that the community unanimously perceived a problem with crosstown transportation in the southern part of Nashville. Analysis of the individual and group questionnaires filled out by those attending the workshops showed that there was no community support for making “no improvements” to solve transportation problems in the area. In fact, the “Summary of I-440 Community Workshops” compiled by TDOT discloses that “no one at any meeting recommended that no improvements for crosstown travel be made.” Several alternatives to the proposed construction of I-440 suggested by workshop participants were analyzed. A report published by TDOT in February 1978 discussed those alternatives analyzed but not recommended for further study at the design level of detail. Alternatives studied by TDOT but found to have a low potential for satisfying the crosstown travel demand for the southern portion of Nashville included the following: (a) Use of Woodmont and Woodlawn as a one-way pair; (b) Relocation of the interstate loop near the Williamson County line; and (c) Transit Alternatives: (1) Bus; (2) Rail; and (3) Dial-a-ride. On the other hand, some alternatives which had undergone preliminary analysis were recommended for further development and study in the draft environmental impact statement. These were: (1) I-440 with six through lanes and two to four auxiliary lanes where needed; (2) A reduced facility freeway with four through lanes and auxiliary lanes where needed; (3) A four-lane boulevard with at-grade, signalized intersections at major radial street junctions; and (4) The “no-build” alternative, or not constructing the facility, coupled with implementation of the approved Major Route Plan, which includes proposals for widening crosstown streets. In February 1978 the MPC completed a document entitled An Analysis of the Boulevard Alternative for the I-440 Corridor. This report contained the MPC analysis of the boulevard alternative, along with revisions and additions to the earlier MPC report, An Analysis of I-440. As was true in the 1976 MPC report, this analysis stressed the land use, economic, social and public service impacts of the alternative addressed. On April 18,1978, the Metropolitan Council passed a resolution endorsing the I- 440 project. The resolution stated that the Council “hereby goes on record as requesting the state Department of Transportation to immediately begin construction on I-440. Further, the Metropolitan Council requests the Metropolitan Mayor to publicly endorse and support this project.” On June 19, 1978, FHWA advised TDOT that relevant areas of concern had been appropriately addressed and that the DEIS was approved for circulation. The DEIS was circulated to federal, state and local agencies, private organizations, and citizens on August 15, 1978. Yet another public hearing on the proposed construction of 1 — 440 was held on October 13,14, and 16, 1978 (Friday, Saturday and Monday), at the Howard School Building in Nashville. On September 13, 1978, the first notice of the combined hearing was published in the Nashville Banner and The Tennessean. The notice included a description of the four alternatives studied to a design level of detail, arrangements for the conduct of the hearing, and other pertinent and required information. The second notice consisted of a three-page Sunday newspaper supplement purchased by TDOT. The notice appeared in The Tennessean on Sunday, October 8, 1978. The Sunday supplement described the date, time, and location of the hearing, procedural arrangements for the hearing, alternatives studied, and other information. In addition, the supplement summarized the development of the 1-440 project, essentially summarized the content of the DEIS, and openly encouraged public participátion in the planning process. Thus, aside from the requisite notice that a public hearing would be held, the supplement contained a wealth of information concerning the 1 — 440 project that was of obvious public interest. The two notices made clear that, should any citizen wish to expand upon his or her comments at the hearing or be unable to attend at all, written submissions would be accepted at the hearing and at the office of TDOT counsel for approximately 2 weeks after the hearing, and that written comments would be weighed equally with oral statements. On the first 2 days of the public hearing (Friday and Saturday, October 13 and 14, 1978), interested individuals, organizations, agencies, and officials were given the opportunity to make comments on a “first come, first served” sign-up basis. The sign-up list was maintained at the hearing location, and names were called for the speakers in the order they appeared on the list. On the third and final day of the public hearing (Monday, October 16, 1978), interested individuals, organizations, agencies and officials who had made prior appointments to speak were heard. An appointment to speak could be obtained by telephoning TDOT. All of the relevant scheduling details and hearing procedures were set forth clearly in the public notices regarding the hearing. It appears that the DEIS was reviewed by a rather large number of agencies, municipal bodies, corporations, and individuals who commented thereupon. The record discloses comments from, among others: Assistant Chief Counsel for Right-of-Way and Environmental Law, FHWA; Director, Office of Environment and Safety, U. S. Department of Transportation (USDOT); Assistant Director, Office of Review and Compliance for the Advisory Council on Historic Preservation; Executive Director of the Tennessee Historical Commission; Director of Water and Sewerage Services for the Metropolitan Government of Nashville and Davidson County; Executive Director of the Metropolitan Development and Housing Agency; City Manager of the City of Oak Hill; Director of the Bureau of Waterways and Rail, TDOT; Vice President and Chief Engineer, Nashville Gas Company; Chief of the Planning and Appraisal Staff, Southern Region of the Federal Aviation Administration; Environmental Planner for the Tennessee Wildlife Resources Agency; General Manager for Facility Services, South Central Bell; Director, Pollution Control, Metropolitan Government of Nashville and Davidson County; State Conservationist for the Soil Conservation Service of the U. S. Department of Agriculture; Executive Director of the Mid-Cumberland Council of Governments and Development District; Acting Regional Engineer for the Federal Energy Regulatory Commission; Mayor of the City of Belle Meade; Regional Environmental Officer for Region IV of the U. S. Department of Health, Education and Welfare; Acting Director of Environmental Planning for the Tennessee Valley Authority; Deputy Assistant Secretary of the U. S. Department of the Interior; Chief of the Metropolitan Fire Department; Chief of Engineering for the Department of the Army; Chief of the EIS Branch, Region IV of the U. S. Environmental Protection Agency (EPA); Chief of EIS Review for Region IV of the EPA. Even if those who participated in the public hearing were added to the list above, all who reviewed the DEIS would not be identified. The list does demonstrate rather clearly, however, that the DEIS was by no means “hidden under a bushel.” If a “coverup” occurred, it was a massive coverup indeed. This is not to say that every evaluation of the DEIS showered it with unqualified praise, but rather to say that the responsible officials were exposed, and in fact exposed themselves, to an extremely broad range of scrutiny and offered a virtual multitude the opportunity to comment. The response of EPA, issued on March 28, 1979, was that the DEIS “rated LO-1, i. e., no significant adverse environmental impacts expected and no additional information requested.” On April 26, 1979, a summary of DEIS replies and public hearing comments was sent to members of the Metropolitan Planning Organization Executive Board and the TDOT Project Review Committee. TDOT also requested that the MPC prepare responses to some of the comments received by TDOT. The MPC responses, as transmitted by Mary Ellen Vanderwilt, Principal Transportation Planner, to Robert H. Pas-lay, Planning Director, evidence absolutely no dissatisfaction on the part of MPC staff members with respect to various concerns that they had expressed earlier during the environmental study process. The Metropolitan Planning Organization Executive Board adopted a resolution calling for, among other things, submission of a Final Environmental Impact Statement (FEIS) “as expeditiously as possible.” The resolution was approved unanimously. TDOT and FHWA proceeded with development of the FEIS for the Four-Forty Parkway alternative. Several modifications or additions to the studies and discussion in the DEIS were made in the FEIS as a result of public input, agency input, new data or information made available to TDOT after circulation of the DEIS, the applicability of new federal guidelines, and completion of impact assessments required for the recommended alternative. III. THE APPROVAL PROCESS The completed FEIS was sent to the FHWA Division Office on December 31, 1979. On January 3, 1980, the Division Office forwarded copies of the FEIS to the FHWA Regional Office in Atlanta. On January 7, 1980, the Regional Office forwarded copies of the FEIS to the Associate Administrator for Right-of-Way and Environment at USDOT in Washington. Upon request, copies of the FEIS were also sent to, among others, the president of a group called Citizens for Better Neighborhoods and counsel for plaintiffs in this cause. On January 8, 1980, a mailgram sent jointly by Governor Lamar Alexander and Mayor Richard Fulton was received by Neil Goldschmidt, who was then the Secretary of USDOT but who has since been succeeded by defendant Andrew L. Lewis, Jr. The mailgram expressed wholehearted support for the 1-440 project, and urged the Secretary to “expedite approval of the project” if possible. On February 13, 1980, Secretary Goldschmidt responded by letter, thanking the Governor and Mayor and assuring them that the Department would “make every effort to expedite its review of the [FEIS] so that a decision can be made at an early date.” Despite his prior expressions of support, on July 3, 1980, Mayor Fulton requested that Secretary Goldschmidt delay making a final decision on the 1 — 440 project for 30 days in order that his staff could “have sufficient time to carefully study alternatives to construction of this highway segment.” The Mayor did not essentially alter his stance in support of the project; he stated that his request was “made only after much contemplation and with the understanding that it will in no way adversely affect the Department’s thinking in regards to 440.” The underlying reasons for seeking delay were identified as fiscal concerns, the prospect of a “court battle,” and the need to study the process by which the 1-440 project might be withdrawn and funds diverted to other transportation projects. On July 11, 1980, Secretary Goldschmidt agreed to delay action upon the project. On or about July 25, 1980, Associate Administrator Thomas Downs of the FHWA met with State and local officials and others in Mayor Fulton’s office to discuss questions concerning the 1-440 project. During this meeting, a question was raised regarding the effect of FEIS approval by USDOT upon availability of the withdrawal and transfer option. Mr. Downs gave his opinion concerning this option but qualified his response by emphasizing that he was “not counsel” for the FHWA, indicating that he would be happy to obtain an opinion from chief counsel for his agency on this “technical issue.” It appears that the inclusion of a caveat in the Associate Administrator’s response was justified, since his response was erroneous in certain respects. Mr. Downs wrote a letter to Mayor Fulton on August 2,1980, as “a followup to our conversation of July 25 regarding requirements to repay Federal funds,” in an effort to “clarify the general payback requirements.” Whether Mr. Downs realized at that time that he had misstated certain of the requirements during the earlier meeting is not clear, but such a conclusion would obviously explain his clarification effort. On August 4, 1980, Mayor Fulton withdrew his request for delay in approval of the FEIS. It appears that in writing this letter the Mayor may have relied to some extent upon a misunderstanding of the withdrawal and transfer requirements. Also, it appears that this letter was sent prior to receipt of Mr. Downs’ letter of explanation. In any event, clarification on this point was not long in coming, and Mayor Fulton did not evidence any dissatisfaction upon discovering the misunderstanding. The court cannot determine precisely when Mayor Fulton received Mr. Downs’ letter, but there is absolutely no basis upon which to conclude that he did not receive the explanation mailed on August 2 well in advance of FEIS approval by US-DOT. Furthermore, the Acting Secretary of Transportation, William J. Beckham, Jr., wrote a letter explicitly referring to the Mayor’s misunderstanding and correcting the same on August 29, 1980. This letter also informed Mayor Fulton that USDOT would proceed with making a decision upon the FEIS. On August 14,1980, a memorandum from the Assistant Secretary for Policy and International Affairs to the Federal Highway Administrator noted USDOT concurrence in the FEIS, subject to four conditions. On September 18, 1980, the Chief of the Environmental Program Division informed the Regional Federal Highway Administrator in Atlanta regarding USDOT concurrence, attaching a determination of section 4(f) compliance to the memorandum and stating that processing of the EIS in accordance with applicable guidelines could proceed. Formal approval of the FEIS as of September 19, 1980, was communicated to the FHWA Division Administrator in Nashville by memorandum on that date, and TDOT was notified of approval by letter on September 22, 1980. TDOT began distribution of the FEIS to federal, state, and local agencies and to interested groups and citizens on September 26, 1980. The EPA in Washington received the FEIS on September 29, 1980. Publication in the Federal Register concerning availability was published in the October 24,1980, Federal Register and stated that the 30-day review period would run from October 17 to November 17, 1980. On October 3, 1980, the Deputy General Counsel for USDOT wrote Governor Alexander regarding the confusion that had arisen earlier concerning the withdrawal and transfer option, offering to withdraw approval of the FEIS in order to allow the State to study that option further if it so desired. Governor Alexander did not request any such action by USDOT. During review of the FEIS, EPA had raised some questions about the potential for future year violations of the National Ambient Air Quality Standards. In response to verbal inquiries by EPA officials, TDOT prepared a “Position Paper on the I-440 Air Quality Impact Analysis,” dated November 20, 1980. A recalculation of some of the earlier reported concentration values for carbon monoxide is presented in this report. The new predictions were based upon use of the CALINE 3 line source model, which was not in general distribution at the time of preparation of the FEIS for I-440 Use of the CALINE 3 model indicated that the 1-440 project would not result in any significant violation of the National Ambient Air Quality Standards for the study years 1985, 1995, and 2005. The “Position Paper” also confirmed the findings of the FEIS that, as compared to the “no-build” alternative, the proposed “build” alternative for 1-440 would result in a general improvement of air quality in Nashville with respect to carbon monoxide and ozone, two pollutants for which the metropolitan area is presently in nonattainment status with respect to the National Ambient Air Quality Standards. By letter dated December 3, 1980, EPA raised further questions about the air quality impact of the 1 — 440 project. TDOT followed the suggestions of EPA and recalculated carbon monoxide concentrations at certain locations using the EPA HIWAY-2 model. It was found that the HIWAY-2 and CALINE 3 models produced results that are very closely comparable. Updated calculations of future carbon monoxide concentrations using these two models indicated that the 1-440 project would not contribute to any carbon monoxide concentrations in excess of the National Ambient Air Quality Standards. By letter dated March 26, 1981, the EPA Regional Administrator notified the FHWA Regional Administrator that the comments submitted by EPA regarding air quality information had been satisfactorily addressed. During January 1981, TDOT submitted a document entitled “Re-evaluation of Transportation System Management Plan for Interstate Route 440 Corridor, Metropolitan Nashville and Davidson Co.” This document was intended to address the four conditions to which USDOT concurrence in FHWA approval of the FEIS had been subject, and was accepted as such. Upon forwarding this submission to the FHWA Regional Administrator in Atlanta, the FHWA Division Administrator in Nashville added his assurance that “Appropriate steps will be taken to assure compliance with the stated conditions throughout project development.” All of this information was forwarded to the Director of the Office of Environmental Policy in Washington. The four conditions having been adequately addressed, approval was given on February 20, 1981, indicating that the responsible officials could advertise for bids on 1-440 construction. IV. WITHDRAWAL AND TRANSFER Plaintiffs have complained that approval of the 1 — 440 project “should be rescinded since plaintiffs were deprived of the benefits and rights available under the interstate withdrawal and transfer of funds provisions of the Federal Highway Act.” As an initial proposition, plaintiffs have not brought to the court’s attention any authority, statutory or otherwise, that would tend to indicate that the Federal Highway Act contemplates any “rights” of this sort claimable by plaintiffs at all, and the court is unaware that any such authority exists. The statute upon which plaintiffs must rely in this respect provides that “[u]pon the joint request of a State Governor and the local governments concerned, the Secretary may withdraw his approval of any route or portion thereof on the Interstate System which [meets certain criteria].” Even the most cursory review of this provision discloses that none of the officials referred to therein are obligated thereby to do anything at all, and plaintiffs would be and are a fortiori totally without a “right” to compel any act on the part of those officials by virtue of this section. The confusion that attended efforts to interpret the withdrawal and transfer provisions is regrettable. Plaintiffs have pointed, in particular, to the fact that May- or Fulton misunderstood these provisions as a basis upon which the court should strike approval of the entire 1-440 project. The Mayor’s misunderstanding was due, in part at least, to statements made by Thomas Downs. Three major faults eviscerate plaintiffs’ contention even if the lack of authority that would support such action by the court could be ignored. First, Mr. Downs very carefully stated that he was “not counsel,” and made perfectly clear to those present that he did not purport to render a definitive legal interpretation of the withdrawal and transfer rules. Second, clarification of the withdrawal and substitution issue was sent to Mayor Fulton by letter on at least two occasions prior to approval of the FEIS. Third, if Mayor Fulton has in fact been victimized, either by the machinations of federal officials or otherwise, it is he who should be heard to complain. Defendant Fulton’s silence on this point might be said to resound. Plaintiffs have vigorously emphasized the fact that Mayor Fulton withdrew his request for a delay in approval of the FEIS at a time when he did not fully understand the withdrawal and transfer provisions. The court would underscore the fact that the initial request was only that USDOT “hold in abeyance a final decision” on the FEIS, and not that all procedures leading up to approval be halted. Whether this request was later withdrawn is totally irrelevant, since approval of the FEIS was not given in any event until 78 days after Mayor Fulton had made his request for a mere delay of 30 days. Plaintiffs complain that both the DEIS and FEIS are fatally defective because they failed to accurately explain in every detail the legal boundaries of the withdrawal and transfer option. Defendants concede that inaccuracies existed. The mistakes disclosed are not viewed by the court as such departures from standards of reasonableness and practicality, however, that the entire project should be delayed or abandoned as a result. See Environmental Defense Fund v. TVA, 492 F.2d 466, 468 n.1 (6th Cir. 1974). As for the DEIS, the court would only point out the obvious — that a draft is submitted in this context for the very purpose of allowing review and comment so that a corrected final statement may be prepared. Plaintiffs concede here, in fact, that the FEIS did correct all mistakes contained in the DEIS regarding the withdrawal and transfer issue. Nevertheless, the FEIS failed to discuss a change in the law that was made shortly before the FEIS was released, and plaintiffs describe this omission as “crucial.” The relevant law was amended on November 9, 1979. This amendment for the first time drew a distinction regarding the withdrawal and transfer option based upon whether the Secretary of Transportation had approved the FEIS for a project. Several reasons may be identified that indicate why failure to include this alteration in the law in the FEIS is not deemed “crucial” by the court. The completed FEIS was delivered to the FHWA on December 31, 1979. Referred to as a unitary document, the FEIS is actually contained in three printed and bound volumes. Precisely when the research and drafting activities were completed is not clear, but it must be presumed that organizing and printing these volumes began well before their distribution during the latter part of December. In other words, there is no indication that TDOT could have been expected, as a purely practical matter, to incorporate such a change in the FEIS. Even if it is presumed that the November amendment could have been incorporated into the December document, as has been stated previously the court is aware of no “rights” due plaintiffs under the withdrawal and transfer provisions that might have suffered as a result of the omission. All individuals who were affected by the amendment were aware of its content at the appropriate time(s). It appears that plaintiffs would have the court require that an EIS be the equivalent of a completely accurate and updated legal treatise explaining concisely every point of law upon which it touches, regardless of the need or ability to do so. If this is indeed plaintiffs’ contention, it is expressly rejected here. Plaintiffs have contended that the actions by various officials discussed here have resulted in exposure of state and local governments, and ostensibly plaintiffs as well, to a substantial monetary “penalty” due to the requirement that funds not utilized for approved projects in accordance with federal guidelines must be repaid to the federal government. In light of conclusions discussed elsewhere in this memorandum, little need be said here regarding this contention. The court would note in passing, however, that it could not without a certain degree of conceptual difficulty characterize as a “penalty” the return of funds not spent in pursuit of the purpose for which they were granted. At the very least citizens, municipalities, and states remain completely free to seek funding from Congress for any worthwhile project. A failure to retain funds earmarked for use under the Federal-Aid Highways Act can hardly be said to foreclose access to federal funds. Plaintiffs would have the court draw somewhat profound conclusions from the fact that a letter was sent to Governor Alexander offering to withdraw USDOT approval of the FEIS without any such letter being sent to Mayor Fulton. The court views neither the letter nor the circumstances surrounding its dispatch as being sinister in any respect. Furthermore, there is absolutely no indication that the course of events would have, or for that matter could have, differed had Mayor Fulton received the same letter. First, the court would point out that it was perfectly logical to send a letter only to Governor Alexander since there is no indication that he had received any correspondence clarifying the withdrawal and transfer issue during the period within which Mayor Fulton received two such letters. Second, the court would state again that if Mayor Fulton has been victimized, he should be expected to complain. Finally, although plaintiffs broadly allege “an intentional act to avoid the Mayor’s acceptance of defendants’ offer to revoke approval,” they offer absolutely no proof of such intent and completely overlook the fact that Mayor Fulton could not unilaterally withdraw the 1-440 project under any circumstance whether or not approval of the FEIS was withdrawn. The statute quoted heretofore clearly indicates that the Mayor and Governor must seek withdrawal of a project. Plaintiffs would have the court presume, at the very least: (1) that had Mayor Fulton received the letter he would have sought withdrawal of FEIS approval; (2) that he then would have decided that the entire project should be withdrawn; (3) that he would have succeeded in convincing Governor Alexander that the project should be withdrawn; and (4) that the Secretary of Transportation would have agreed with all of the above. Flying in the face of these theories, all of the responsible officials strenuously argue as defendants in this action that nothing is amiss. When plaintiffs’ arguments concerning the withdrawal and transfer issue are scrutinized closely, they simply disclose no merit. Those allegations masquerading as the strongest potential claims bear only upon conduct that supposedly resulted in wrongs against Mayor Fulton as the head of the local government. Plaintiffs are thus forced, in effect, to argue that the court should impose “relief” upon a party who seeks none. V. HISTORIC PROPERTIES Plaintiffs have raised several issues concerning the relationship between the 1-440 project and certain historic properties located within and near the proposed right-of-way. In particular, it is asserted that additional section 4(f) statements should have been prepared, that section 106 of the Historic Preservation Act has been violated, and that alternatives to the use of Granny White Pike have not been adequately considered. A. Section 4(f) Applicability Defendants have argued that section 4(f) is by its own terms inapplicable to the 1-440 project. This argument rests upon the fact that the statute applies only to projects approved after August 23, 1968. The precise issue in this regard may be identified as what constitutes “approval” for purposes of section 4(f). In Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), it does not appear that any question was raised concerning the applicability of section 4(f) to the use of park land for construction of 1-40 in Memphis. Nevertheless, the Court stated: Although the route through the park was approved by the Bureau of Public Roads in 1956 and by the Federal Highway Administrator in 1966, the enactment of § 4(f) of the Department of Transportation Act prevented distribution of federal funds for the section of the highway designated to go through Overton Park until the Secretary of Transportation determined whether the requirements of § 4(f) had been met. Federal funding for the rest of the project was, however, available; and the state acquired a right-of-way on both sides of the park. 401 U.S. at 407, 91 S.Ct. at 819, 28 L.Ed.2d at 148 (footnotes omitted). At first glance it would appear that defendants’ contentions here are foreclosed by the above-quoted passage. It can hardly be denied that both the 1-40 segment involved in Overton Park and the 1-440 project developed along similar lines early on. Closer examination of the Overton Park opinion might yield a different result, however. It is certainly arguable that the Court viewed expenditure of funds for right-of-way acquisition as the crucial time in determining whether a project has been “approved” for purposes of section 4(f). Such a conclusion might draw support, in particular, from the appearance that no approval had been given for acquisition of right-of-way to be used in building 1 — 40 prior to the effective date of section 4(f). However that might be, the court need not tread upon uncertain ground in view of the conclusions discussed below. B. Additional Section 4(f) Statements Plaintiffs have alleged that preparation of a section 4(f) statement dealing only with the impact of I-440 upon Granny White Pike represents a failure to comply with section 4(f). They assert that the presence of additional historic areas near the 1-440 right-of-way results in the need for delay of the project until section 4(f) statements are prepared and approved for these areas as well. All of plaintiffs’ arguments upon this point share a common and somewhat understated theme — that “use” of historic properties under section 4(f) does not necessarily require use of the land upon which the properties are located. The court is unconvinced that section 4(f) supports this “constructive use” theory. Section 4(f) itself refers to protection “of the lands traversed,” and provides that “the Secretary shall not approve any program or project which requires the use of ... any land from an historic site” except under certain circumstances. Plaintiffs, on the other hand, are forced to argue that section 4(f) also applies with respect to property not “traversed” by 1-440 and as to which no “use of ... any land” is contemplated. Even accepting for purposes of argument and in deference to the general policy of section 4(f) the proposition that “constructive use” results in the imposition of duties upon the Secretary of Transportation under section 4(f), the court would not be inclined to hold that an obligation exists to prepare a section 4(f) statement for properties other than Granny White Pike. This conclusion is supportable in several ways. The most straightforward basis upon which it can be shown that no additional section 4(f) statements should be prepared is found in 23 C.F.R. § 771.19(e). That regulation provides: Park and recreation lands, wildlife and waterfowl refuges, and historic sites are sometimes designated or determined to be significant later in the development of a highway section. In such cases, a project may proceed without the preparation of a section 4(f) statement if the right-of-way from such 4(f)-type lands was acquired prior to the designation or change in significance. Plaintiffs assert that this regulation does not apply here because the acquisition of right-of-way is not the “use” that calls section 4(f) into play. Aside from the fact that the theoretical underpinnings for such an argument are weak, the court does not read the regulation itself as admitting such a distinction. The obligation to prepare a section 4(f) statement arises, if at all, only by virtue of USDOT regulations. If the same regulations excuse the Secretary from any such obligation under circumstances such as are presented here, the court is unaware of any basis upon which it should purport to revive the duty. Stretching the definition of “use” to perhaps its broadest extent, plaintiffs argue that noise, air pollution, land use alteration, damage from blasting activity, and property value diminution illustrate the uses to which various historic properties will be subjected. Neglecting momentarily the point that plaintiffs have not borne the burden of showing that these activities and results will actually impart the harm alleged, the court would question the relevancy of certain of these effects. Surely the means by which constructive use of property can be shown for purposes of section 4(f) should at least include proof that the claimed harm will affect the historic value or quality of the properties. The various historic districts addressed by this aspect of plaintiffs’ complaint are designated as such because they encompass houses that are architecturally significant. The simple truth is that noise, land use changes, property value diminution, and to a substantial extent air pollution, will not affect the architectural integrity of these areas and will not impair their historic value. Most of the cases cited by plaintiffs in support of the “constructive use” theory deal with parks and recreation areas or wilderness areas, rather than historic properties. In those cases, the purposes for which such properties are protected were threatened by the “use.” A case cited by plaintiffs that did involve an historic property held that an area contiguous to and essentially included within a larger historically significant property actually to be traversed by a highway should be protected. Wholehearted acceptance of the “constructive use” principle would not on the facts presented in this case be the panacea that plaintiffs might expect. Plaintiffs’ allegations concerning “use” of the historic properties suffer from a fundamental deficiency in yet another respect. It is hinted that certain dire consequences might result from construction of 1-440 without a showing that any will in fact be suffered. Plaintiffs would, in effect, suggest possibilities and have the court presume the worst manifestations of each. In contradiction to plans by defendants for depressing the highway below ground level, erecting barriers to alleviate noise, and controlling noise during construction, plaintiffs offer no showing that noise from the highway or its construction will be such that it will constitute “use” of historic properties. In contradiction to findings that air pollution levels will be reduced by removing “stop and go” traffic from neighborhood streets and allowing more efficient operation of motor vehicles, plaintiffs, although questioning the methodology employed in reaching those findings, offer no proof at all that air pollution will increase. Although construction planning has included consideration of precautionary regulations and the need to prevent damage from blasting during construction, plaintiffs have introduced evidence concerning only the obvious — that blasting “could result in adverse impacts” and “has the potential to destroy or alter properties.” Aside from failing to show that land use changes approach the inevitable, plaintiffs have not even suggested how the court should determine that construction or use of the highway itself will result in “use” of any historic property by means of land use changes. Although plaintiffs produced testimony that highway construction has a generally depressing effect upon property values, one of plaintiffs’ witnesses and one of the plaintiffs testified more specifically regarding expected increases in property values. The sum of the evidence simply provides no basis upon which the “use” of historic areas other than Granny White Pike may be found. It is entirely possible that plaintiffs have confused the standards that require treatment of a project under section 4(f) with those that require consideration of effects upon historic properties under section 106 of the Historic Preservation Act. If that is indeed the case, the court has endeavored not to become likewise confused. C. Section 106 of the Historic Preservation Act As an alternative to the claim that additional section 4(f) statements should be required, plaintiffs allege violations of section 106 of the Historic Preservation Act. That section and regulations promulgated thereunder require consideration of the “effect” of projects upon property included in or eligible for inclusion in the National Register of Historic Places. Section 106 also requires that the Advisory Council on Historic Preservation (ACHP) be allowed to comment on the project. Investigations concerning historic properties began comparatively early in the planning process. The DEIS Appendix contained a report describing numerous properties of possible historic significance within the project area, and probable effects of all proposed alternatives were examined. Seventeen properties, including five districts, were identified by the State Historic Preservation Officer (SHPO) as meeting the criteria of the National Register. During FEIS preparation, more intensive investigation was conducted with respect to these properties. The SHPO identified four properties that may be affected by 1-440. Documentation of the significance of three of the properties was developed and submitted to the Keeper of the National Register for an official determination of eligibility pursuant to 36 C.F.R. § 63. RichlandWest End Historic District had been listed previously in the Register, in April 1979. In December 1979, the Acting Keeper determined that Granny White Pike and Grave, West End Heights Historic District, and Glen Oak Historic District were eligible for listing. A reexamination of potential effects upon the identified properties was undertaken in light of design modifications and several questions that had arisen at the intervening public hearing. The “criteria of adverse effect” were applied in order to determine adverse effects upon those characteristics of the properties which made them eligible for listing in the National Register. The Richland-West End and West End Heights Historic Districts were found to be subject to increased pressures for redevelopment and more intensive land use due to the West End Avenue-Murphy Road interchange. Granny White Pike would be adversely affected by the disturbance of 900 feet of its 6-mile length. The setting of each of these properties would be altered by the presence of noise barriers, and Granny White Pike by the highway itself. It was found, on the other hand, that Glen Oak Historic District would actually benefit from the absence of some traffic that would otherwise use Blair Boulevard and Fairfax Avenue in order to cross the southern part of Nashville. Each of these effects is described in detail in the FEIS Appendix, with the concurrence of the SHPO included as well. In accordance with 36 C.F.R. § 800.13(b), a preliminary case report was prepared. Documentation of the “no adverse effect” determination regarding Glen Oak was also prepared, in accordance with 36 C.F.R. § 800.13(a). Pursuant to 36 C.F.R. § 800.4, both reports were submitted to the ACHP for review, as well as to the U.S. Department of Housing and Urban Development, the U.S. Department of the Interior, the Tennessee Historical Commission and SHPO, Mayor Fulton, Vice-Mayor David Scobey, the MPC, the Metropolitan Historical Commission, and the Metropolitan Department of Public Works. On November 7, 1979, the Southeastern representative for the ACHP came to Nashville to personally inspect the project site. He was provided with a summary of comments from interested groups and individuals, copies of those comments, and copies of letters concerning the involved properties. He also discussed the project and proposed mitigation measures with representatives from FHWA, TDOT, MPC, the Metropolitan Historical Commission, and the SHPO. After reviewing all information presented, the ACHP concurred with the conclusions reached in the preliminary case report. A Memorandum of Agreement was drawn up and executed by the FHWA, the SHPO, and the Executive Director of the ACHP. Ratification of the Memorandum by the Chairman of the ACHP completed the process of compliance with section 106 and the applicable regulations. Plaintiffs complain that the Belmont-Hillsboro Historic District, which is listed in the National Register, is entitled to protection under section 106. They allege that although Belmont-Hillsboro was not listed in the Register when the FEIS was prepared, defendants knew or should have known that it would be so listed. They point out that this area was not designated as an area to be affected by 1-440. As a remedy, plaintiffs urge that the court require preparation of a supplemental EIS and enjoin further action by defendants regarding the project. In response to plaintiffs’ emphasis of the fact that defendants knew or should have known that the Belmont-Hillsboro area was eligible for listing on the Register, a rather short answer may be given. The SHPO has indicated that this area was unidentified as requiring a determination of eligibility for the National Register not because it was deemed ineligible, but rather because it was considered to be outside the area of potential impact. See 36 C.F.R. § 800.2(o). It is alleged neither that this determination was made in bad faith nor that the SHPO was acting beyond the scope of his responsibility. Plaintiffs allege that the information provided and analysis undertaken pursuant to section 106 were “insufficient ... to demonstrate that 1-440 will not result in avoidable adverse effects to the historic districts studied.” The court is somewhat puzzled by this contention. No issue is raised that was not considered pursuant to section 106, and no fact is proven that illustrates a greater impact than was contemplated. Whereas section 106 only requires that the ACHP be allowed “a reasonable opportunity to comment,” plaintiffs have shown no respect in which such an opportunity was denied. Nor is there any allegation that the ACHP or its representative who personally inspected the project acted in bad faith. Simply stated, the procedures followed appear to have been normal in every respect. D. Section 4(f) Statement for Granny White Pike Plaintiffs allege that the section 4(f) statement for Granny White Pike fails to adequately consider alternatives to use of that historic property. Although this aspect of the claim is emphasized, plaintiffs would apparently argue that mitigation of effects upon Granny White Pike has also been inadequately addressed. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), sets forth the standards that guide review of a decision in this area. The court may “engage in a substantial inquiry” subject to the usual qualification that “the Secretary’s decision is entitled to a presumption of regularity.” Id. at 415, 91 S.Ct. at 823, 28 L.Ed.2d at 153. Initially, inquiry should be made into whether the Secretary acted within the scope of his authority and whether the decision reached can reasonably be said to fall within the scope of that authority. In addition, it should be determined that the decision was not reached arbitrarily, capriciously, as a result of abuse of discretion, or not in accordance with relevant law, and that proper procedures were followed. No challenge is perceived in this action to the Secretary’s authority or to whether the decision reached is within this authority. Indeed, such a challenge would be frivolous. There appears to be no question raised regarding the procedures followed. The sole issue to be considered here, then is whether the Secretary’s actions comport with the “arbitrary and capricious” standard. 1. Alternatives to use of Granny White Pike Whenever a proposed project involves use of land from an historic property, section 4(f) requires a determination by the Secretary of Transportation that “there is no feasible and prudent alternative to the use of such land.” Much verbiage can be avoided by merely stating here a fact that is obvious from the record and which plaintiffs (albeit reluctantly) must concede — any project undertaken to accomplish the major objective of 1 — 440, which is to facilitate travel across South Nashville, will require use of Granny White Pike. No alternative has been proposed by plaintiffs that would not use this property save the alternative of doing absolutely nothing. Likewise, no realistic alternative of such a type has been proposed by other individuals or groups. Without engaging in detailed analysis of discussion that is present elsewhere in this memorandum, the court would merely state that the Secretary did not act arbitrarily or capriciously in finding that no feasible and prudent alternative existed to use of land from Granny White Pike. The need to improve the ability to move traffic across South Nashville has been adequately documented and relevant information was made available to the Secretary. Plaintiffs offer no proof that this need does not exist. They would ask, essentially, that the court find deficient the consideration of an alternative that appears, on the basis of the evidence presented, to totally lack viability. 2. Mitigation of impact The original design for 1 — 440 included a “full interchange” at Granny White Pike. Building an interchange would have required substantial changes in the character of the Pike. In light of the historic nature of the site, such extensive alteration was eliminated from the design. The revised plan calls for depressing 1-440 beneath the Pike, erecting noise barriers, restoring the Pike as a two-lane facility essentially identical in location to its present form, and landscaping the area in a manner consistent with other sections of the Pike. All of these facts, along with a discussion of two additional options that were considered for reduction of visual impact, were discussed in detail in the section 4(f) statement. Plaintiffs allege that the planning outlined above “fails to consider extra measures to alleviate the damage to be inflicted,” and that “[g]reater measures to minimize the harm were not even considered as options in the 4(f) statement.” Two observations may be made regarding these claims. First, the absence of “options” is irrelevant in view of the fact that the Secretary is required only to approve or disapprove a plan, and not to choose between or express a preference for any one of various alternatives. Second, despite allegations that the plan to mitigate effects is inadequate, plaintiffs suggest absolutely no additional measures that are feasible and the court is aware of none. It is implied that no plans have been made for Granny White Pike that are not also to be effected in other areas. Aside from being of questionable relevance, that simply is not true. The record supports the finding of the Secretary that plans for the use of land from Granny White Pike include all possible measures to lessen the effects of 1-440 construction. Plaintiffs have failed to contradict in any sense the presumption of regularity that accompanies this finding. VI. GOOD FAITH As a prelude of sorts to a broad-based attack upon the adequacy of the EIS itself, plaintiffs allege that bias on the part of TDOT so permeated the process of EIS preparation that the standard of good faith objectivity has been breached. The sufficiency of the document itself is discussed hereafter. Nevertheless, the court recognizes the allegations of bad faith on the part of TDOT as assaults upon the integrity of the EIS. Various somewhat disjointed assertions have been made, the sum of which is proffered as evidence of bad faith. The court has endeavored to examine each in the appropriate context and accord each, in a manner of speaking, the attention that it deserves. A. Method of Consultation Plaintiffs have produced testimony to the effect that TDOT official Ben Smith stated that criticisms and comments by MPC staff members concerning the EIS could be handled by informal meetings and telephone conferences rather than by formal memos or letters. This was communicated at least to witnesses Edward Cole and Mary Ellen Vanderwilt. Plaintiffs would have the court infer from this suggestion a devious motive, without consideration of an inference that the intent might have been to handle comments and criticisms more efficiently. It is not hinted in any respect that TDOT attempted by this means to suppress criticism; nor is it suggested that the flow of comments was to be in any manner altered other than in form. The role of TDOT to be examined here concerns the gathering and assembly of information. The methods chosen for accomplishing this task are, as a practical matter, of limited concern. In point of fact, it appears that the methods suggested by TDOT were rejected and that MPC personnel continued to draft memos and letters. The court views Mr. Smith’s request at worst as a mere curiosity. B. Traffic Forecasts and Consideration of Alternatives The testimony of witnesses Cole and Vanderwilt also forms the foundation for claims by plaintiffs that the handling of traffic forecasts and alternatives suggested by the MPC evinced bad faith. It is clear that the MPC and TDOT carried on over a period of time a dialogue the focus of which was an effort to reconcile and verify traffic projections in the 1-440 impact area. The entry of uncertainty and perhaps disagreement into discussions concerning traffic projections for future years and even decades can hardly be unexpected. Upon the appearance that MPC staff members wished to consider various alternatives sua sponte, it is also understandable that a certain amount of confusion might result. In any event, allegations have been made concerning adjustment of traffic forecast figures by TDOT, alteration of maps or charts containing such figures at the suggestion of TDOT, consideration of whether origin and destination studies used to calculate traffic assignments should be updated, reliance upon traffic forecasts that were allegedly calculated with the assumption that 1-440 would be built, documentation of forecasts, and consideration of mass transit alternatives. Plaintiffs conclude that these widespread charges substantiate their claims of bad faith. The evidence, including the testimony of Mr. Cole and Ms. Vanderwilt, supports no such conclusion. The import of plaintiffs claims is that TDOT arbitrarily manipulated traffic figures and rebuffed attempts by MPC personnel to verify and comment upon the forecasting process or suggest alternatives. In contrast to these basic premises, Mr. Cole testified that when he spoke of TDOT requests that he “alter” traffic figures he did not intend to use that term in a “sinister” fashion and that he has no basis upon which to question the accuracy of the traffic figures. Also in contrast, Ms. Vanderwilt stated in an interagency memorandum on June 28, 1979, that “TDOT benefitted from the work and discussions with the MPC staff concerning methodology and assumptions for preparing the statewide traffic forecasts” while preparing the most recent traffic assignments. Ms. Vanderwilt, also in the June 28 memorandum, indicated that “[t]he discrepancy between the TDOT traffic assignments for the 1-440 ‘build’ and ‘no build’ alternatives used in the MPC staff analysis and used in the Draft EIS is the result of differences in traffic forecasting and assignment methodology.” She went on to explain the differences in methodology, expressing no apparent dissatisfaction at that time. Mr. Cole testified that although he questioned the failure by TDOT to update origin and destination studies, “there is one legitimate school of thought that agrees with that conclusion.” He noted that “there are other schools of thought” on this point. In addition, Mr. Cole admitted that diversity of opinion existed, by virtue of different “schools of thinking,” with respect to future use of the automobile. This was another area in which h