Sierra Club v. Coleman, Civ. A. No. 75-1040.

• Decision Date: 17 October 1975
• Docket Number: Civ. A. No. 75-1040.
• Parties: SIERRA CLUB et al., Plaintiffs, v. William T. COLEMAN, Jr., and Norbert T. Tiemann, Defendants.
• Court: U.S. District Court — District of Columbia

405 F. Supp. 53

SIERRA CLUB et al., Plaintiffs, v. William T. COLEMAN, Jr., and Norbert T. Tiemann, Defendants.

Civ. A. No. 75-1040.

United States District Court, District of Columbia.

October 17, 1975.

Leonard Meeker, Washington, D. C., Eldon Greenberg, Richard A. Frank, Co-Counsels, Washington, D. C., for plaintiffs.

Irwin Schroeder, U. S. Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM AND ORDER

BRYANT, District Judge.

This matter is before the Court, pursuant to Rule 65 of the Federal Rules of Civil Procedure, on plaintiffs' Motion For A Preliminary Injunction. Having considered the papers submitted in support thereof, the opposition thereto, and the arguments of counsel, the Court makes the following findings of fact and conclusions of law.

This case arises under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. The defendants, the Department of Transportation and the Federal Highway Administration, are currently engaged in the initial steps of construction of the "Darien Gap Highway" through Panama and Colombia.¹ Construction of a highway to link the Pan American Highway system of South America with the Inter-American Highway was authorized by Congress in 1970, P.L. 91-605, 23 U.S.C. § 216. The actual administration of the project was left to the Secretary of Transportation, 23 U.S.C. § 216(b). In April of 1974, well after the project was underway and well after the selection of the precise route of the highway had been made, the Federal Highway Administration (FHWA) prepared and circulated to certain parties a draft "Environmental Impact Assessment" relating to the construction of the highway. In December of 1974 FHWA issued a final "Assessment", very similar to the draft. The Sierra Club and three other environmental organizations have now brought this action seeking to enjoin any further action on the project by FHWA, claiming that the preparation and issuance of the "Assessment" satisfied neither the procedural nor the substantive requirements of NEPA. For the reasons outlined below, the Court agrees, and is compelled to grant the preliminary injunction.

A number of courts have previously considered the requirements for a preliminary injunction in the case of an alleged deficiency in compliance with NEPA requirements. This Court agrees that "when . . . federal statutes have been violated, it has been the long-standing rule that a court should not inquire into the traditional requirements for equitable relief." Atchison, Topeka, and Santa Fe Railway Co. v. Callaway, 382 F.Supp. 610, 623 (D.D.C., 1974). Accord, Lathan v. Volpe, 455 F.2d 1111, 1116 (9th Cir., 1971); Keith v. Volpe, 352 F.Supp. 1324, 1349 (C.D.Cal., 1972), aff'd., 506 F.2d 696 (9th Cir., 1974), cert. denied, 420 U.S. 908, 95 S.Ct. 826, 42 L.Ed.2d 837 (1975). In each of these NEPA cases the court took the position that it was not necessary to the granting of a preliminary injunction to balance the equities, and approved the issuance of an injunction based on deficiencies in compliance with NEPA requirements. These cases derive from the decision of the Supreme Court in United States v. City and County of San Francisco, 310 U.S. 16, 60 S.Ct. 749, 84 L.Ed.2d 1050 (1940), reh. denied 310 U.S. 657, 60 S.Ct. 1071, 84 L.Ed. 1420 (1940), in which the Supreme Court approved the granting of an injunction without a balancing of the equities in order to give effect to a declared policy of Congress, embodied in legislation.

In the present case, the Court finds three principal deficiencies in FHWA's compliance with the NEPA requirements. First, FHWA failed to circulate either its draft or final Assessment to the Environmental Protection Agency for its comments, as required by 42 U.S.C. §§ 1856h-7 and 4332(C). There is no question but that the environmental effect of major highway construction is within the expertise of EPA, and that agency might well have had valuable comments which could have affected FHWA's judgment as the Assessment was considered in the decision-making process in the selection of the highway's route. Indeed, EPA's response to the Assessment (when it finally learned of its existence) suggests a discussion by FHWA of the domestic consequences of the transmission of aftosa into the United States, the lack of which is one of the very deficiencies found by this Court (below) to require the granting of an injunction.²

The second major defect in the "Assessment" is a substantive one: the failure of that document to adequately discuss the problems of the transmission of aftosa, or "foot-and-mouth" disease. While there is in the document a recognition of the probable transmission of aftosa absent the most stringent of control programs, and a consequent discussion of the evolving plans for preventing transmission of the disease to North America, there is no discussion whatsoever of the environmental impact upon the United States of a breakdown of such a control program. Considering that, according to the undisputed record in this case, aftosa is the most serious existing livestock disease, which if it spread into the United States could result in the destruction of up to twenty-fice percent of North American livestock and an economic loss of ten billion dollars, as well as the extinction of such endangered species as the American bison, it seems evident that an impact statement which fails to discuss this possibility is fatally deficient. No matter how well-planned the control program may be, there will always remain at least the possibility that it may not prove successful. Discussion of the consequences of failure is therefore essential, for otherwise the public, and particularly those most interested in such a possibility, will not be alerted to the problem and will not make the informed comments which FHWA is required to consider in its decision-making process.³

The third defect in the Assessment, again of a substantive nature, is its failure to adequately discuss possible alternatives to the route that has been chosen for the highway, as required by § 102(2)(C)(iii) of NEPA, 42 U.S.C. § 4332(C)(iii). While the statement does mention briefly the "no-build" alternative, without discussing its relative environmental impact, the bulk of the section of the final...