Assoc Concerned, et al v. Slater, et al

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 98-11405
Lower Ct. No. 3:83-CV-585-H
_______________________
ASSOCIATION CONCERNED ABOUT TOMORROW,
INC.,(“ACT”) AND HARRY ENGLERT,
Plaintiffs-Appellants,
versus
RODNEY E. SLATER, ET AL,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
Civil Docket # 83-CV-585
_________________________________________________________________
February 9, 2000
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit
Judges.
PER CURIAM:*
The court has carefully considered this appeal in light
of the parties’ briefs, and argument, the district court opinion,
and our independent research. Having done so we find no reversible
error.
First, FHWA’s approval of State Highway 161 (“SH 161")
complied with the conformity requirements of the Clean Air Act.
FHWA needed to show that the project it approved, which was a 4/6-
mainlane freeway, met the Clean Air Act conformity requirements.

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See 42 U.S.C. § 7506(c)(1); City of Alexandria v. Slater, No. 99-
5520, 1999 WL 1204341, *6 (D.C. Circuit December 17, 1999). This
it did. FHWA did not need to show conformity for an 8/10-mainlane
freeway because approval of a project’s footprint does not
constitute approval of a project’s construction. As FHWA
acknowledges, any future expansion of SH 161 into its 8/10-mainlane
footprint will require additional Clean Air Act analysis. But
until that time, there is no violation of the Clean Air Act.
Second, to the extent appellants have preserved any
challenges to the sufficiency of the environmental impact
statement, the district court thoroughly explained why those
challenges are meritless.
Finally, FHWA conducted a proper review of SH 161 under
section 4(f) of the Department of Transportation Act, inasmuch as
it was not arbitrary, capricious, or an abuse of discretion for the
Secretary not to consider alternative routes that were neither
feasible nor prudent. The judgment of the district court is
AFFIRMED.

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