Last week, the Pennsylvania Commonwealth Court issued an unreported opinion in an eminent domain case of potential interest in anticipation of an infusion of federal funding for infrastructure development. Montgomery Cty Transp. Auth. v. 106 Dekalb, Inc., No. 1837 C.D. 2019 (Pa. Commw. Ct. Apr. 20, 2021).

The Authority is engaged in a project to connect the Chester Valley Trail to the Schuylkill River Trail. Both trails are “commuter trails,” suitable for bicycles and pedestrians. The Chester Valley Trail extends from King of Prussia south and west to Exton. The Schuylkill Valley Trail extends from Norristown into Philadelphia. The project will bridge that gap between King of Prussia and Norristown.

The Authority filed a Declaration of Taking with respect to several properties in Bridgeport. The owner objected. One principal dispute has to do with whether the Authority had properly identified the properties.

However, a second dispute had to do with whether the Authority had abused its discretion by selecting a route solely in order to make it easy for the Federal Highway Administration — which was providing funding — to approve after review under the National Environmental Policy Act. That is, the owner argued that a Pennsylvania agency could not properly design its project so as to limit questions that would be raised by a NEPA Environmental Assessment or Environmental Impact Statement.

The court found that in fact, the Authority had varied from the federally preferred route to avoid river crossings on railroad bridges with unscheduled freight traffic, and so the premise of the challenge was not true. However, the court also did not explicitly state that the Authority was within its discretion to select a route to reduce environmental concerns that would be raised by NEPA.

Project proponents may want to keep an eye on this issue. The whole point of NEPA is to induce incorporation of environmental concerns into the design of projects. But, NEPA is procedural, not substantive. This case raises some federalism questions.