A pro se plaintiff appealed the district court's dismissal of his claims, which challenged a Federal Highway Administration (FHWA) decision to categorically exclude a two-stage highway interchange project from review under the National Environmental Policy Act (NEPA).[1] The project involved building a new highway interchange on Interstate 5 (I-5) between Seattle and Tacoma, and it was broken into two stages of construction: Stage One involved construction of the interchange, while Stage Two, which was "unfounded" and "only vaguely defined,"[2] involved upgrading and re-routing the Stage One interchange. West alleged that the agency's decision was arbitrary and capricious under the Administrative Procedure Act,[3] and he sought both a declaration that the interchange was not categorically excluded from NEPA analysis and an injunction to cease work on the project until an environmental impact statement (EIS) was prepared. Reversing the district court, the Ninth Circuit determined that the categorical exclusion (CE) was in error, ordered that the appropriate NEPA environmental review be undertaken for Stage One of the project, and vacated the district court decision with respect to the second stage.

The court first dismissed co-defendant Weyerhauser's claim of mootness. Although Stage One had been completed at the time of the appeal, Stage Two had not yet begun. The court stated that if a NEPA violation were found, then the court's remedial powers would include remanding for additional environmental review and even ordering the interchange to be taken down.

The court held that the project triggered NEPA in this case because the FHWA is required to approve any new points of access to or exits from the federal highway system. The issue of whether a CE provides the appropriate level of NEPA review for a new highway interchange appeared to be one of first impression. Under NEPA regulations, each agency develops its own criteria to determine what level of environmental review its actions warrant.[4] The FHWA's NEPA regulations state that a CE may be used for actions that "do not involve significant environmental impacts" and

do not induce significant impacts to planned growth or land use for the area; do not require the relocation of significant numbers of people; do not have a significant impact on any natural, cultural, recreational, historic or other resource; do not involve significant air, noise, or water quality impacts; do not have significant impacts on travel patterns; or do not otherwise, either individually or cumulatively, have any significant environmental impacts.[5]

The FHWA regulations specifically describe two types of CEs: 1) a list of twenty actions (into which the parties agreed the interchange did not fit) that meet the criteria, and 2) a "documented categorical exclusion" (DCE), which West claimed was applicable. A DCE is applicable where an action meets the overriding definition of a CE[6] and where the applicant--the Washington State Department of Transportation in this case--submits documentation that demonstrates compliance with the CE criteria.[7]

The Ninth Circuit rejected the defendants' argument that the DCE example, "Approvals for changes in access control,"[8] fit the interchange action. Because that phrase is not defined in the FHWA regulations, the court looked to the non-exclusive list of actions identified in the regulations as DCEs, as well as the itemized list of categorically excluded actions. Analyzing these materials, the court determined that the types of projects described "suggest strongly that a DCE is not appropriate for a highway interchange construction project."[9] The court reached this conclusion because 1) the magnitude and scale of the interchange compared to that of the projects provided as example DCEs and CEs was much larger, and 2) the FHWA's own regulations limiting the use of CEs recommended against such use here. The FHWA regulations state that use of a CE in situations where an action will have "significant impacts on travel patterns" is not permitted.[10] As the purpose of the interchange was clearly to have significant impacts on travel patterns, the interchange failed the first part of the test for a DCE--meeting the general CE criteria--and was thus inconsistent with the regulation. The court declined to establish a per se rule that all highway interchanges require an environmental assessment. Instead, the court held that "an interchange designed to have a substantial effect on traffic patterns does not qualify for a documented categorical exclusion."[11]

Finally, in considering the appropriate remedy--which was particularly difficult because Stage One of the project had been completed and the interchange was open to regular traffic--the court determined that an order requiring the appropriate NEPA review was still useful. Because modification of operations of the interchange or mitigation of its effects by changes to the plans in Stage Two could potentially mitigate any adverse environmental effects, the environmental analysis was potentially useful and would not necessarily require the interchange to be torn down. Thus, the court ordered that the NEPA review for Stage One be performed, and that any district court decision with respect to Stage Two be vacated because that stage's plans were not only incomplete at the time of trial, but they were also sufficiently segregated from Stage One as to require separate NEPA analysis.

The dissent argued that the case was moot, not yet ripe for adjudication, and correctly decided by the district court if it had been justiciable. With respect to mootness, the dissent claimed that because the construction of the interchange had ended and motorists had been using the interchange since October 1997, the environmental harm complained of had been accomplished and could not be undone.[12] The dissent also suggested that any challenges to Stage Two of the project were not ripe for adjudication because that portion of the project was not yet funded, designed, or scheduled.[13] Finally, the dissent argued that, even if the case was ripe and not moot, the record supported the district court's decision that the agency decision was not arbitrary or capricious. According to the dissent, the FHWA's interpretation of the term "access control" was permissible, because "[an] agency's interpretation of the meaning of its own categorical exclusion should be given controlling weight unless plainly erroneous or inconsistent with the terms used in the regulation."[14]