CONSERVATION SOCIETY, ETC. v. Secretary of Transp.

• Decision Date: 27 July 1973
• Docket Number: Civ. A. No. 6598
• Citation: 362 F. Supp. 627
• Parties: The CONSERVATION SOCIETY OF SOUTHERN VERMONT, INC., et al. v. SECRETARY OF TRANSPORTATION et al.
• Court: U.S. District Court — District of Vermont

362 F. Supp. 627

The CONSERVATION SOCIETY OF SOUTHERN VERMONT, INC., et al. v. SECRETARY OF TRANSPORTATION et al.

Civ. A. No. 6598

United States District Court, D. Vermont.

July 27, 1973.

Frederick Pope, Jr., Bellows Falls, Vt., for Conservation Society of Southern Vermont.

Harvey D. Carter, Jr., Bennington, Vt., for Winslow, Eldred, Van Keuren and Wasco individually.

George W. F. Cook, U. S. Atty., Rutland, Vt., for Secretary of Transp. and Federal Highway Administration.

Robert C. Schwartz, Asst. Atty. Gen., Montpelier, Vt., for Vermont State Highway Board and Vermont Highway Dept.

Angus Macbeth, New York City, and William F. Morrill, Lakeville, Conn., for The Natural Resources Defense Council, Inc.; Environmental Defense Fund; The Sierra Club; Berkshire Litchfield Environmental Council, Inc.; Citizens for Balanced Transportation and Environment, Inc., The Hoosic River Basin Citizens Environmental Protection Assn.; Housatonic Valley Assn.; The Lake Champlain Committee; South Berkshire Research; Western Mass. Public Interest Research Group; Vermont Public Interest Research Group, amici curiae.

FINDINGS OF FACT, OPINION and ORDER

OAKES, Circuit Judge.

The above entitled action came on for hearing on the motion by the defendants Secretary of Transportation and David B. Kelley, Division Engineer, Federal Highway Administration (FHWA) (hereinafter the "federal defendants") and H. James Wallace et al. (hereinafter the "state defendants"), filed jointly on March 20, 1973, for an order dissolving this court's injunction of October 26, 1972. See 343 F.Supp. 761 (D.Vt.1972). The ground for dissolution was that the environmental impact statement (the EIS) required by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C), ordered to be filed by this court had been duly prepared and filed and was sufficient and that the identical requirements of § 4(f) of the Department of Transportation Act, 49 U.S.C. § 1653(f), and § 138 of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 138 hereinafter sometimes jointly referred to as § 4(f), had been duly met. Following preliminary argument on the motion to dissolve the injunction, on April 23, 1973, evidence was taken on May 10 and 11, 1973, and the parties granted leave until May 24, 1973, to file additional memoranda and supporting materials. At the time of the taking of the evidence, for the limited purpose of filing memoranda of law, The Natural Resources Defense Council, Inc., and a number of other conservation-oriented organizations, national, regional and local, were granted leave to appear as amici curiae.

The parties have briefed, and evidence was taken on, four issues:

1. Whether the EIS was prepared by, or under the supervision of, the Department of Transportation, and whether it was required so to be prepared;

2. Whether the EIS as filed met the requirements of NEPA, i.e., was sufficient;

3. Whether the Bennington to Manchester, Vermont, segment of Route 7 proposed to be constructed and covered by the EIS was simply a part of a larger plan or proposal for an improved Route 7 in the states of Connecticut, Massachusetts and Vermont so as to require an EIS for the entire length of existing Route 7; and

4. To what extent certain United States Forest Lands would be used or affected by the proposed highway, and how such use or effect relates to the requirements of § 4(f).

Each of these issues and the evidence in respect thereto will be discussed separately below, so as to present a full record for any appeal, and the discussion in respect to each shall be treated as findings of fact and conclusions of law thereon.

I. Whether the EIS constituted a "detailed Statement by the responsible official" within NEPA § 102(2)(C).

On its face or cover sheet the EIS shows that it was "prepared by Vermont Department of Highways." This was done pursuant to the Department of Transportation's (DOT's) Policy and Procedure Memorandum (PPM) 90-1 which specifically provides that a state highway agency shall prepare and circulate a draft EIS in cooperation with the FHWA, ¶ 6b, "shall prepare a final environmental statement or combined environmental/4(f) statement in consultation with the FHWA . . .," ¶ 6i, and that "FHWA review and adoption of the final impact statement shall be the responsibility of the Regional Federal Highway Administrator." ¶ 6j. Here the regional FHWA office essentially delegated consultation duties in regard to the EIS to the federal division engineer in Vermont, defendant Kelley. He in turn commented on the draft EIS primarily through his engineering coordinator, Gordon Hoxie. Mr. Hoxie maintained frequent contact with the Vermont Highway Department (VHD) during the course of the work involved in preparation by the VHD, or more specifically the rural planning section of the VHD. The individual primarily responsible for the writing and preparation of the EIS was VHD planning engineer Arthur Goss. During the time of EIS preparation engineer Hoxie was in verbal communication with VHD's Goss two or three times weekly. On one occasion FHWA division engineer Kelley went on a field trip, during which the proposed route was examined and environmental considerations noted and discussed, with representatives of the VHD accompanied by two independent environmental consultants, Frederick H. Mold and William C. Horsford, as well as by representatives of the Vermont Fish and Game Department. After a draft EIS was prepared by the VHD in consultation with but not under the supervision of the FHWA it was submitted to the public for comment and to the division office of FHWA in Montpelier, Vermont, and the regional office in Delmar, New York.

The division office, and more particularly Mr. Hoxie as engineering coordinator and the right of way officer, the planning engineer and the area engineer all reviewed the EIS. At the regional office the draft EIS was examined by Donato J. Altobelli, director of the Office of Environment and Design, who in turn circulated it to a FHWA "Regional Task Force" for consideration. This "Task Force" consisted of Mr. Altobelli and his assistant, bridge and construction engineers, a hydraulics engineer, a landscape architect, a "regional relocation specialist," a regional urban planner and the Deputy Regional Federal Highway Administrator. It considered the draft EIS and through Messrs. Kelley and Hoxie submitted a letter to the VHD under date of October 10, 1972 (EIS at 428), commenting generally that it thought the EIS to be "a good representation of the adverse and beneficial environmental impacts of the proposed projects" and specifically making only three suggestions as follows: (1) calling for more "discussion of" the 25 improvements that will be taken and the persons displaced; (2) suggesting inclusion of "an assessment of the impact which the highway will have on future land uses of the surrounding area" and as a corollary the effect of the highway on residential and business property values; (3) calling for more discussion of the probable impact of the recommended alignment on the local area tax base.¹ Apparently all three of the suggestions of the FHWA were incorporated by the VHD in the final impact statement.

This case thus raises the very fundamental question whether FHWA procedures requiring preparation of an EIS by the local state highway agency, with communication from and cooperation of the regional FHWA, followed by review by an FHWA "task force" at the regional level complies with NEPA and more particularly NEPA as construed by the Second Circuit Court of Appeals in Greene County Planning Board v. FPC, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). In Greene County, it will be recalled, the Second Circuit (per Kaufman, C. J.) held that in a procedure involving the licensing of transmission lines, the FPC could not properly merely review and circulate an EIS prepared by the Power Authority of the State of New York (PASNY, an independent state agency interested in power development), but had the "primary and nondelegable responsibility" to "consider environmental values `at every distinctive and comprehensive stage of the agency's process.'" 455 F.2d at 420. Put another way, has the FHWA here, as the FPC was found to have done in Greene County, "abdicated a significant part of the responsibility by substituting the statement of the VHD for its own"? 455 F.2d at 420.

The federal defendants argue that the VHD is unlike PASNY in the Greene County case and is in no sense an "applicant or contestant." Thus they argue that there is no likelihood that the EIS prepared by the VHD would be based upon the "self-serving assumptions" that the Second Circuit was particularly wary of in Greene County. In support of this purported distinction the federal defendants cite two United States District Court cases, National Forest Preservation Group v. Volpe, 352 F.Supp. 123 (D.Mont.1972), and Iowa Citizens for Environmental Quality, Inc. v. Volpe, 4 ERC 1755, 1759-60 (S.D. Iowa 1972), the former holding that there was no indication that the EIS in the particular case was "self-serving" to the local highway department and that "It should not be presumed that states are not concerned with the environmental problems facing us all." 352 F.Supp. at 127. However true this may be, Greene County requires a different result. In Vermont, at least, the Vermont Highway Department has the duty, as testified to by Speaker of the House Kennedy and by Commissioner of Highways Gray, to follow legislative mandate in regard to proposed highway construction, and the construction here contemplated was legislatively mandated in 1968. Thus, it is impossible for the Vermont Highway Department not to be an advocate of legislatively mandated construction and still act consistently with its duty as a state agency. This being true, delegation of the preparation of an EIS to the VHD raises the danger that the EIS...