Protect Our Parks, Inc. v Pete ButtigiegProtect Our Parks, Inc. v Pete Buttigieg
WOOD, Circuit Judge. In 2016, after a nationwide search, the Barack Obama Foundation decided to build the Obama Presidential Center in historic Jackson Park on Chicago’s South
Protect Our Parks’ central theory is that these laws required the agencies to consider alternatives to the Jackson Park site in their evaluation of possible environmental harms. It correctly notes that the agencies, taking a different view of the law, did not do this. The problem with this argument is that none of the federal defendants had anything to do with the site selection—it was the City that chose Jackson Park, and the federal agencies had (and have) no authority to move the project elsewhere. Federal law does not require agencies to waste time and resources evaluating environmental effects that those agencies neither caused nor have the authority to change. See Dept. of Transp. v. Public Citizen, 541 U.S. 752, 756 (2004). We thus affirm the order of the district court denying Protect Our Parks’ motion for a preliminary injunction.2
I
In 2014, the Foundation began searching for a home for President Obama’s presidential library. After evaluating several potential sites, it chose Jackson Park, a public park in the neighbоrhood where President Obama lived and began his career as a community organizer, law professor, and state senator. The Center will feature a museum, a public library, spaces for educational and cultural events, green space, and an archive commemorating the life and legacy of the nation’s first Black President. Construction of the Obama Presidential Center (the Center) is wholly funded by the Obama Foundation.
After the Chicago City Council unanimously approved building the Center in Jackson Park, the City acquired the needed parkland from the Chicago Park District, signed a use agreement with the Foundation, and prepared to break ground. When completed, the Center will take up 19.3 acres, which amounts to about 3.5% of Jackson Park.
A
Although the federal government had no role in the Foundation’s or Chicago’s decision to house the Center in Jackson
The U.S. Department of Transportation’s Section 4(f) Review. The plans for the Center require the closure of portions of three roads within Jackson Park. To accommodate the resulting effect on traffic, the Chicago Department of Transportation has proposed using federal funding to build or improve other roads, bike paths, and pedestrian walkways in the park. To be clear, the plan to close portions of existing roads in the park did not require federal approval. See Old Town Neighborhood Ass‘n Inc. v. Kauffman, 333 F.3d 732, 736 (7th Cir. 2003). What did give rise to the approval requirement was the plan to build replacement infrastructure using federal highway dollars. That brought the Federal Highway Administration (FHWA) into the picture; it was required to review the proposal under section 4(f) of the Department of Transportation Act of 1966 (codified at
After a comprehensive analysis, the FHWA found that there was no feasible and prudent alternative to using section 4(f) properties for new transportation infrastructure, which was needed to substitute for the roads that would be elimi-
National Environmental Policy Act Environmental Assessment. The National Park Service and the Department of Transportation conducted a joint environmental assessment pursuant to the National Environmental Policy Act (NEPA). See
On that basis, the agencies assessed the environmental impact of three options: Option A, in which neither the Park Service nor the federal Department of Transportation approved the City’s plan; Option B, in which only the Park Service approved it; and Option C, in which both did. The agencies prepared an exhaustive review of the direct, indirect, and cumulative effects of each option, including the potential consequences on trees, wildlife, water quality, air quality, traffic
Urban Park and Recreation Recovery Act Review. The National Park Service also conducted a review under the Urban Park and Recreation Recovery Act (UPARR Act). See
Because Chicago wanted to dedicate about ten acres of parkland to non-recreational space to make room for the Center’s buildings and related transportation improvements, the City sought the Park Service’s approval of a partial UPARR conversion. Specifically, the City proposed replacing the lost parkland by turning property on the Midwаy Plaisance between Stony Island Avenue to the east, and the Metra Electric Railway to the west, into public recreational space. The replacement parkland borders (and effectively extends) Jackson
Army Corps of Engineers Permits. The City also needed to secure permits from the United States Army Corps of Engineers, which administers the Rivers and Harbors Appropriation Act of 1899,
In 2019, the Park District requested a section 408 permit to build the Center. The City proposed to ameliorate the impacts of the new transportation projects by restoring a lagoon overlook in a nearby part of the park and planting additional native plants. Its plan would result in a net gain of about 1.1 acres to the area included in the ecological-restoration project. After determining that building the Center would not impair the federal project, the Corps approved a section 408 permit.
National Historic Preservation Act Review. The National Historic Preservation Act (NHPA) requires federal agencies to “take into account the effect” of an “undertaking on any historic property” before approving the use of federal funds.
The FHWA prepared an Assessment of Effects to Historic Properties related to the Center. The assessment found that the project would have an adverse effect on two historic properties: (1) the Jackson Park Historic Landscape District and Midway Plaisance; and (2) the Chicago Park Boulevard System Historic District. The Highway Administration then held several meetings with relevant stakeholders, including the Illinois State Historic Preservation Office, local parks advisory councils, and locаl historic preservation groups. In the end the agencies concluded that any effects from the project would not be significant.
B
The City’s plan to build the Center in Jackson Park has been opposed from the start by Protect Our Parks, Inc., a nonprofit organization started by Chicago residents who resist conversions of Chicago parkland. In 2018, Protect Our Parks filed its first lawsuit to stop construction of the Center. There it argued that building the Center in Jackson Park would violate state law, the Takings Clause of the Fifth Amendment, and the Due Process Clause of the Fourteenth Amendment. In Protect Our Parks I, we affirmed summary judgment for the defendants on the constitutional claims and dismissed the state-law claims for lack of standing, because the plaintiffs had only a general policy objection to the City’s decision, not a concrete injury. See 971 F.3d at 738.
Six months later, and just days before the City broke ground on the Center, Protect Our Parks launched a renewed effort to persuade the court to halt construction. This time, it brought claims under the Administrative Procedure Act against the City and Park District, the Foundation, and a group of federal and state officers. At present, the individual defendants (all of whom were sued in their official capacities) are Pete Buttigieg, the Secretary of Transportation; Stephanie Pollack, the Acting Administrator of the FHWA; Deb Haaland, the Secretary of the Interior; Charles F. Sams III, the Director of the National Park Service; Christine Wormuth, the Secretary of the Army; Scott A. Spellmon, the Commanding General of the U.S. Army Corps of Engineers; Arlene Kocher, the Administrator of the Illinois Division of the FHWA; Matt Fuller, the Environmental Programs Engineer of the Illinois Division of the FHWA; and Jose Rios, the Region 1 Engineer of the Illinois Department of Transportation.
Protect Our Parks’ fifteen-count complaint asserts that the defendants violated the following laws by moving ahead with the Center: section 4(f) of the Department of Transportation Act; the National Environmental Policy Act; the Urban Park and Recreation Recovery Act; sections 106 and 110(k) of the National Historic Preservation Act; the Rivers and Harbors Act; and the Clean Water Act. It promptly moved for a preliminary injunction, but the district court denied the motion, reasoning that Protect Our Parks was unlikely to succeed on the merits because its complaint simply repackaged the group’s policy disagreements with the defendants’ substantive decisions. Protect Our Parks then moved for an injunction pending appeal. We denied that motion because plaintiffs did not make a sufficiently strong showing that they were likely to succeed on the merits. See 10 F.4th 758, 763 (7th Cir. 2021). Protect Our Parks then appealed the district court’s order denying the motion for a preliminary injunction. See
II
To secure a preliminary injunction, Protect Our Parks must show that it is “likely to succeed on the merits, … likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Defense Council, 555 U.S. 7, 20 (2008). Protect Our Parks’ primary problem stems from the first part of this test. The group argues that so long as it has even an ephemeral chance of winning on the merits, it has shown enough of a likelihood of success to secure an injunction. But Protect Our Parks’ proposed standard cannot be reconciled with Winter’s reminder that the “likeli-
A
The National Environmental Policy Act of 1969 requires federal agencies to prepare an environmental impact statement (EIS) for “major Federal actions significantly affecting the quality of the human environment.”
NEPA is a procedural statute, not a substantive one. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (“[I]t is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.”). Thus, in reviewing an agency’s compliance with the law, a court’s “only role is to ensure that the agency has taken a hard look at environmental consequences” that may flow from a project, not to second-guess the agency’s substantive judgment about how serious those consequences might be or what to do about them. See Env’t L. & Pol’y Ctr. v. U.S. Nuclear Regul. Comm’n, 470 F.3d 676, 682 (7th Cir. 2006).
As we noted above, the National Park Service and Department of Transportation conducted a joint environmental assessment, determined that no EIS was needed for the Obama Presidential Cеnter project, and issued a finding of no significant impact. Protect Our Parks argues that the agencies’ decision not to prepare an EIS was arbitrary and capricious, in part because the project requires the City to cut down about 800 trees and felling those trees may adversely affect certain migratory birds, and in part for historic preservation and other reasons noted earlier. But those are arguments about the
In fact, the agencies were very thorough. Their environmental assessment includеs, for example, an exhaustive Tree Technical Memorandum, which catalogs the species of the trees that will be cut down and confirms that each tree lost will be replaced by a newly planted tree. The Memorandum concludes that the tree replacement plan will have an “overall neutral” impact and may even improve the park, because dying trees will be replaced with healthy ones. Similarly, the EA includes a detailed discussion of the project’s effect on migratory birds. It considers the City’s tree replacement plan, the hundreds of acres of Jackson Park that will remain untouched by the project, and the birds’ nesting habits. NEPA requires no more: the record shows that the Park Service and Department of Transportation took the necessary hard look at the likely environmental consequences of the project before reaching their decisions.
Protect Our Parks also attempts to recast its substantive objections as procedural ones by arguing that the Park Service and the Department of Transportation did not adequately consider three of the ten factors set forth in the NEPA regulations in effect while the review was underway. See
Again, the administrative record amply shows that the agencies “consider[ed] the proper factors,” ensuring that their decision is entitled to deference. See Ind. Forest All., 325 F.3d at 859. Protect Our Parks faults the agencies for ignoring the unique characteristics of Jackson Park, see
Finally, Protect Our Parks accuses the agencies of failing to consider the “cumulatively significant impact” of the project. See
B
Protect Our Parks’ next theory is that the Park Service and Department of Transportation sidestepped NEPA’s reasonable-alternatives requirement by treating the City’s decision to locate the Center in Jackson Park as a given. NEPA requires that agencies “study, develop, and describe appropriate alternatives” to major federal projects.
The argument is fatally flawed for three reasons. First, NEPA reaches only major federal actions, not actions of non-federal actоrs.
That brings us to causation. NEPA requires agencies to consider only environmental harms that are both factually and proximately caused by a relevant federal action. See id. at 767. We accept for present purposes the fact that the Park Service’s approval was a but-for cause of the Center’s placement in Jackson Park, in that the City could not move forward with construction without it. The problem is that but-for causation alone “is insufficient to make an agency responsible for a particular effect under NEPA and the relevant regulations.”
Although federal agenсies’ limited role in the project would be enough to defeat causation on its own, our conclusion is further bolstered by the mandatory language of the UPARR Act.
Third, Protect Our Parks ignores the “reasonable” half of the reasonable-alternatives requirement. See
C
Most of Protect Our Parks’ remaining arguments suffer from the same causation, scope of federal action, and deference problems as the NEPA claims we already have discussed. Each of the following points is a variation on the plaintiffs’ theme that the agencies should have considered locations for the Center outside Jackson Park.
Their argument under section 4(f) of the Department of Transportation Act offers a goоd example. Under that statute, the Department may approve a “transportation program or project” in a public park only if “(1) there is no prudent and feasible alternative to using that land; and (2) the program or project includes all possible planning to minimize harm to the park[.]”
Likewise, the UPARR Act claim turns on the theory that the Park Service should have considered alternative locations for the Center. The Act requires that the Park Service consider whether a proposal to convert parkland supported by a UPARR grant evaluated “[a]ll practical alternatives to the proposed conversion.”
Under section 106 of the National Historic Preservation Act (NHPA), agencies must “take into account the effect оf the[ir] undertaking[s] on any historic property.”
In a final variation of the same argument, Protect Our Parks urges us to revoke the Army Corps of Engineers’ permits, which were issued under the Clean Water Act and Rivers and Harbors Act, because (once again) of the failure to consider alternative locations for the Center. This argument fails for the same reasons it failed under NEPA, the NHPA, the DOTA, and UPARR. The Corps had no control over the City’s decision to build the Center in Jackson Park and no authority to force the City to pick a different site.
D
Finally, Protect Our Parks brought an anticipatory demolition claim under section 110(k) of the National Historic Preservation Act. Section 110(k) of the NHPA bars federal agencies from issuing a рermit or other assistance to applicants who “intentionally significantly adversely affected a historic property to which the grant would relate” with “intent to avoid the requirements” of the NHPA.
In 2018, the City began clearing trees in Jackson Park in preparation for the construction of a new track-and-field complex. When the Highway Administration learned about the tree clearing, it requested a written explanation from the City. The City explained that the Obama Foundation had donated funds to build a new track for the community, but that the track lay outside thе proposed grounds of the Obama Presidential Center, that the funds came with no conditions related to the Center, and that the City had consulted with the Park Service, which assured the City that the track-and-field pro-
In a last-ditch effort, Protect Our Parks argues that the district court abused its discretion by not holding an evidentiary hearing about several declarants’ statements that are not in the administrative record. Judicial review in APA actions is typically confined to the administrative record, with several exceptions not relevant here. See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2573–74 (2019). Because Protect Our Parks has not even attempted to make a “strong showing” that any exception to the general rule applies in this case, we limit our review to the ample administrative record and reject the call to supplement that record through an evidentiary hearing. Id.
III
We AFFIRM the district court’s order denying рlaintiffs’ motion for a preliminary injunction.