Protect Our Parks, Inc. v. Pete Buttigieg ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2449
PROTECT OUR PARKS, INC., et al.,
Plaintiffs-Appellants,
v.
PETE BUTTIGIEG, Secretary of Transportation, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 21-cv-2006 — John Robert Blakey, Judge.
____________________
AUGUST 19, 2021
____________________
Before KANNE, WOOD, and HAMILTON, Circuit Judges.
PER CURIAM. In 2016, the City of Chicago and the Barack
Obama Foundation selected Jackson Park in Chicago as the
location for the Obama Presidential Center. The Center, con-
sisting of a museum, public library, and other spaces for cul-
tural enrichment and education related to the life and presi-
dency of Barack Obama, will take up about 20 acres of the
park and require that the City close several nearby roadways.
The National Park Service approved the City’s plan to build
2 No. 21-2449
in the park on the condition that the City expand nearby
spaces for public recreation. The Federal Highway Admin-
istration approved construction of new roadways to make up
for the roadways the City was to close. Both agencies together
performed an environmental assessment and concluded that
their decisions would have an insignificant effect on the envi-
ronment and were the least damaging alternatives available
to each agency. But they did not consider whether the City
could have further reduced environmental harms by building
the Center elsewhere.
A group of concerned local citizens, headed by the organ-
ization Protect Our Parks, Inc., argued that this environmen-
tal review was too cramped; they sought to enjoin construc-
tion of the Center under the Administrative Procedure Act
(APA), 5 U.S.C. § 702. The district court denied Protect Our
Parks’s request for a preliminary injunction on August 5. Pro-
tect Our Parks promptly moved to enjoin construction pend-
ing its appeal from that order. We denied that motion on Au-
gust 13 and now explain our decision.
I
This is the second time Protect Our Parks has appeared be-
fore this court challenging the construction of the Center. It
previously asserted that the City’s choice to build the Center
in Jackson Park violated state law and the United States Con-
stitution. We affirmed summary judgment for the defendants
on the constitutional claims but vacated judgment on the
state-law claims for lack of jurisdiction, because Protect Our
Parks’s claims amounted to little more than a policy disagree-
ment with the City’s decision to locate the Center in Jackson
Park. Protect Our Parks, Inc. v. Chi. Park Dist., 971 F.3d 722, 728
(7th Cir. 2020), cert. denied sub nom. Protect Our Parks, Inc. v.
No. 21-2449 3
City of Chicago, No. 20-1259, 2021 WL 1602736 (U.S. Apr. 26,
2021).
While that litigation was ongoing, federal agencies re-
viewed the City’s plans. Several agencies had a hand in the
process, but the motion now before us centers on two: the Na-
tional Park Service and the Federal Highway Administration.
The Park Service became involved because Jackson Park
benefited from federal grants under the Urban Park and Rec-
reation Recovery Program. The grants committed the City to
maintaining Jackson Park for public-recreation purposes.
Constructing the Center will require a conversion of recrea-
tional park land to non-recreational buildings. The relevant
statute provides that the Service “shall approve such conver-
sion” if it is consistent with an applicable program and there
are conditions “to ensure the provision of adequate recreation
properties and opportunities of reasonably equivalent loca-
tion and usefulness” in the park. 54 U.S.C. § 200507. The City
proposed constructing new recreation areas nearby for a net
gain of public-recreation property, and the construction was
consistent with all existing park plans, and so the Service gave
its approval. The agency saw no other practical alternative
that would fulfill the City and Foundation’s objectives, which
included building the Center in the community where Presi-
dent Obama had lived and worked.
The City’s construction plans also required closing a few
local roadways near the location where the Center is to be
built. The City was free to close these local roads without fed-
eral approval, but when it proposed widening other streets to
make up for the closures and sought federal funds to do so,
the Highway Administration stepped in. Under section 4(f) of
the Department of Transportation Act of 1966, the use of
4 No. 21-2449
parkland for a federal transportation program or project re-
quired the Administration to find that “(1) there is no prudent
and feasible alternative to using that land; and (2) the pro-
gram or project includes all possible planning to minimize
harm to the park ….” 49 U.S.C. § 303(c). The Administration
reviewed several possible plans for how to build new road-
ways and approved “Alternative 9B” as the only feasible and
least harmful option. Each alternative it considered, including
the one it labeled “no-action,” assumed that the Center would
be built and the existing roadways closed; the differences
were confined to the questions whether and how new roads
would be constructed to compensate.
The two agencies together prepared an environmental as-
sessment and concluded that their decisions would not cause
a “significant” impact requiring an environmental impact
statement under the National Environmental Policy Act
(NEPA), 42 U.S.C. § 4332(C). See 40 C.F.R. § 1508.9 (2019) (de-
scribing environmental assessment). In conducting that as-
sessment, the agencies noted that they did not “have approval
authority over the placement of the [Center] in Jackson Park
(or of its design); nor do they have approval authority over
the road closures in Jackson Park.” They limited their review
to the environmental impact of “alternatives within the scope
of their authority” and split the possibilities into three alter-
natives: (A) neither the Park Service nor the Highway Admin-
istration approves the City’s proposal, (B) only the Park Ser-
vice approves, and (C) both approve.
Protect Our Parks’s claims in this lawsuit center on the
agencies’ chosen alternatives. It contends that the agencies ar-
bitrarily limited themselves to the parts of the City’s plans
over which they had approval authority, rather than more
No. 21-2449 5
globally considering alternatives, including the possibility of
a different location for the Center. If they had considered
building the Center elsewhere, Protect Our Parks insists, then
the agencies would have found that there were less environ-
mentally damaging locations. Protect Our Parks further con-
tends that the agencies’ environmental assessment failed to
appreciate fully the impact of Alternative C.
The district court denied a preliminary injunction. It con-
cluded that the agencies had no obligation to consider alter-
native locations and that Protect Our Parks’s disputes with
the assessment were “nothing more than disagreements
about substantive decisions” that were unlikely to succeed.
See Protect Our Parks, Inc. v. Buttigieg, No. 21-cv-2006, 2021 WL
3566600 at *9 (N.D. Ill. Aug. 12, 2021).
Protect Our Parks appealed the denial of the preliminary
injunction, 28 U.S.C. § 1292(a)(1), and moved for an injunction
pending the outcome of its appeal, FED. R. APP. P. 8. We de-
nied the motion after considering the arguments in support of
it, the defendants’ responses, and submissions from amici cu-
riae.
II
An injunction pending appeal is an extraordinary remedy,
just like any other injunction. See Cavel Int'l, Inc. v. Madigan,
500 F.3d 544, 547 (7th Cir. 2007). To be entitled to this interim
relief, the party seeking the injunction (here, the plaintiff)
“must establish that he is likely to succeed on the merits, that
he is likely to suffer irreparable harm in the absence of pre-
liminary relief, that the balance of equities tips in his favor,
and that an injunction is in the public interest.” Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Although a plaintiff
6 No. 21-2449
need not show by a preponderance of the evidence that she
will win her suit, the mere possibility of success is not enough;
she must make a “strong” showing on the merits. Ill. Republi-
can Party v. Pritzker, 973 F.3d 760, 762–63 (7th Cir. 2020), cert.
denied, 141 S. Ct. 1754 (2021). Protect Our Parks’s claims do not
meet this standard.
Protect Our Parks’s central theory is that the agencies un-
lawfully “segmented” their review under the NEPA. That
statute requires federal agencies to prepare an environmental
impact statement for any “major Federal actions significantly
affecting the quality of the human environment.” 42 U.S.C.
§ 4332(C). “’Piecemealing’ or ‘segmentation,’ … ‘allows an
agency to avoid the NEPA requirement that an [impact state-
ment] be prepared for all major federal action with significant
environmental impacts by segmenting an overall plan into
smaller parts involving action with less significant environ-
mental effects.’” Highway J Citizens Grp. v. Mineta, 349 F.3d
938, 962 (7th Cir. 2003) (quoting City of West Chicago v. NRC,
701 F.2d 632, 650 (7th Cir. 1983)). Protect Our Parks insists that
the agencies found no significant environmental impact only
by separating the federal decisions—whether to approve the
conversion of recreation property and whether to expand the
roadways—from the state decision to build the Center in Jack-
son Park. If the agencies had considered alternative locations,
Protect Our Parks argues, then they would have found build-
ing elsewhere to be the least environmentally harmful option.
The first problem with Protect Our Parks’s position is that
it fails to take into account the deference courts owe to agen-
cies with respect to relevant scope of a project. See Kleppe v.
Sierra Club, 427 U.S. 390, 414 (1976) (finding the decision of the
Department of the Interior not to prepare an EIS regarding
No. 21-2449 7
coal production on the entire Northern Great Plains region
not to be arbitrary). In addition, as the district court recog-
nized, segmentation refers only to the situation that arises
when an agency arbitrarily separates related federal actions
from one another. The Center is a local project, and the federal
government has no authority to fix its location. Without fed-
eral involvement we do not even reach the issue whether the
federal government segmented its actions. See Old Town
Neighborhood Ass'n Inc. v. Kauffman, 333 F.3d 732, 735 (7th Cir.
2003). That is because the NEPA requires an impact statement
only for “major Federal actions,” which the relevant regula-
tions define to mean actions that are “potentially subject to
Federal control and responsibility.” 40 C.F.R. § 1508.18 (2019).
Environmental harm that federal agencies do not cause is ir-
relevant. See Mineta, 349 F.3d at 954 & n.3.
Moreover, the agency’s actions must be both a factual and
a proximate cause of the asserted harm. See Dep't of Transp. v.
Public Citizen, 541 U.S. 752, 767 (2004). The Park Service’s ap-
proval was a factual cause of the Center’s placement in Jack-
son Park, because construction could not start without its ap-
proval, but the agency’s limited authority prevented it from
being a proximate cause of any damage resulting from the
Center. The Park Service “shall” approve conversion that
meets the criteria of 54 U.S.C. § 200507; it need not assess “the
environmental impact of an action it could not refuse to per-
form.” Pub. Citizen, 541 U.S. at 769; see also Sauk Prairie Con-
servation All. v. U.S. Dep't of the Interior, 944 F.3d 664, 680 (7th
Cir. 2019) (“Because the National Park Service had no author-
ity to end the helicopter training, there is no causal connection
between its decision to approve the provision [that permitted
training] and any environmental effects continued training
might have.”), cert. denied, 140 S. Ct. 2764 (2020). Put another
8 No. 21-2449
way, the agencies must take the objectives they are given and
consider alternative means of achieving those objectives, not
alternative objectives. Citizens Against Burlington, Inc. v. Busey,
938 F.2d 190, 199 (D.C. Cir. 1991) (Thomas, J.). The City’s ob-
jective was to build the Center in Jackson Park, so from the
Park Service’s perspective, building elsewhere was not an al-
ternative, feasible or otherwise.
The causal link between the Center and the Highway Ad-
ministration’s actions is even more tenuous. Constructing the
Center is not an effect of the Administration’s approval, but
the predicate condition for it. The City has the authority to
close the roadways to build the Center without federal ap-
proval. See Old Town Neighborhood Ass’n, 333 F.3d at 735–36.
If the Center were not built and the roadways were not closed,
then the Highway Administration would have no new road
construction to approve or disapprove.
In any event, the agencies did consider the full environ-
mental impact of the Center’s construction (as an “indirect”
effect of the Park Service’s decision to approve conversion)
and concluded that it was not “significant.” We review that
determination under the APA’s familiar “arbitrary and capri-
cious” standard, 5 U.S.C. § 706(2)(A), and ask only if the
agency’s decision was “based on a consideration of the rele-
vant factors and whether there has been a clear error of judg-
ment.” DHS v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905
(2020) (quoting Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971)). “If an agency considers the proper
factors and makes a factual determination on whether the en-
vironmental impacts are significant or not, that decision im-
plicates substantial agency expertise and is entitled to
No. 21-2449 9
deference.” Mineta, 349 F.3d at 953 (quoting Ind. Forest Alli-
ance, Inc. v. U.S. Forest Serv., 325 F.3d 851, 859 (7th Cir. 2003)).
Protect Our Parks has not shown it is likely to overcome
this deference. Its arguments are, as the district court recog-
nized, disputes with the agencies’ substantive judgment,
which we typically do not second-guess, so long as the agency
has followed the required procedures. See Env't L. & Pol'y Ctr.
v. NRC, 470 F.3d 676, 685 (7th Cir. 2006).
Protect Our Parks contends that the agencies ignored the
environmental impact of cutting down around 800 trees to
build the Center. But the agencies reviewed a meticulous tree
survey and determined that the City’s plan to provide 1:1 re-
placement with new trees would result in long-term environ-
mental benefits, or at least end up neutral. Protect Our Parks
argues that current trees and future saplings are not equiva-
lent, but it is not our role to decide the relative value of the
long- and short-term. Protect Our Parks also argues that the
City’s decision to restrict tree removal during migratory
birds’ breeding season is an admission that removing the
trees will significantly harm the birds. The City’s efforts to
mitigate harm, though, do not imply that the harm, once miti-
gated, remains significant; they do not even necessarily imply
it was significant to begin with. The agencies reasonably de-
termined that the unaffected 500-plus acres of Jackson Park
will provide the birds a comfortable environment during con-
struction. Finally, the agencies took the necessary “hard look”
at Jackson Park’s historical features. See Habitat Educ. Ctr., Inc.
v. U.S. Forest Serv., 673 F.3d 518, 526 (7th Cir. 2012). The agen-
cies recognized that Jackson Park will change with the addi-
tion of the Center, but they also recognized that it has changed
before. The City’s plans include conscious efforts to integrate
10 No. 21-2449
the Center with the existing landscape and to fulfill the vision
of the Park’s designer, Frederick Law Olmsted. Protect Our
Parks is unlikely to show that the agencies made a clear error
in judgment when weighing the benefits of change against
history.
III
For the foregoing reasons, we denied the motion for an in-
junction pending appeal. Protect Our Parks also asks us to ex-
pedite this appeal. That request is granted, and an expedited
briefing schedule will issue separately.