Arlington Coalition on Transportation v. Volpe

Citation458 F.2d 1323
Decision Date04 April 1972
Docket NumberNo. 71-2109.,71-2109.
PartiesARLINGTON COALITION ON TRANSPORTATION et al., Appellants, v. John A. VOLPE, Secretary of Transportation, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

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COPYRIGHT MATERIAL OMITTED

Lawrence J. Latto, Washington, D. C. (Donald S. Burris, Hardy L. Wieting, Jr., and Shea & Gardner, Washington, D. C., on brief), for appellants.

Robert S. Lynch, Atty., Dept. of Justice (Shiro Kashiwa, Asst. Atty. Gen., and Edmund B. Clark, Atty., Dept. of Justice, and Brian P. Gettings, U. S. Atty., James R. Tate, Asst. U. S. Atty., and Dowell H. Anders, Washington, D. C., Deputy Chief Counsel, Federal Highway Administration, on brief), for federal appellees.

Stuart H. Dunn, Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen., and Vann H. Lefcoe, Asst. Atty. Gen., on brief), for appellee Douglas B. Fugate, Commissioner.

Arthur B. Vieregg, Jr., Fairfax, Va., on brief for appellee, Fairfax County Chamber of Commerce, Inc.

Robert Funicello, Washington, D. C., on brief for amicus curiae, The Wilderness Society.

Before CRAVEN and BUTZNER, Circuit Judges, and YOUNG, District Judge.

CRAVEN, Circuit Judge:

This is an ecology case. It is the declared public policy of the United States to protect and preserve the national environment "to the fullest extent possible." National Environmental Policy Act of 1969, 42 U.S.C.A. § 4332 (NEPA). The NEPA is a value judgment by the Congress that in order to "foster and promote the general welfare" each generation of Americans must, beginning now, act "as trustee of the environment for succeeding generations." 42 U.S.C.A. § 4331. We hold that even essential highway construction must yield to the congressionally structured priority.

Appellants are individuals who live in Arlington and own land in the path of the proposed highway, and associations whose objectives are the preservation of environmental and community values and the development of a sound transportation system in the Washington metropolitan area. Appellees are the Secretary of the United States Department of Transportation, the Commissioner of the Virginia Department of Highways, and their agents. Intervening appellees are the Arlington and Fairfax Counties Chambers of Commerce. Appellants filed suit in February 1971, seeking a declaration that in the planning of the segment of Interstate Route 66 (I-66) scheduled to run through Arlington County, Virginia, appellees violated certain federal statutes, and an injunction restraining appellees from proceeding with the planning and construction of this part of I-66. The district court refused relief, 332 F.Supp 1218, and this appeal resulted.

On November 24, 1971, we granted appellants' request for an injunction pending appeal. State appellee Fugate and his agents were enjoined "from condemning additional land for . . . Interstate-66 located in Arlington County, Virginia, and from requiring the appellants . . . to vacate their properties in the county." Federal appellee Volpe and his agents were enjoined "from approving, pursuant to 23 U.S.C. § 106(a), plans, surveys, specifications and estimates for . . . Interstate-66 located in Arlington County, Virginia."

We conclude that the federal statutes invoked by appellants are applicable to Arlington I-66 and must be complied with before further steps may be taken towards construction of this highway. Compliance means not only reconsideration of the proposed location of Arlington I-66 in the light of environmental, social, and economic policies set forth in the statutes; it means also suspension of work on Arlington I-66 pending this reconsideration. Further investment of resources by appellees in the proposed route would render alteration or abandonment of the proposed route increasingly costly and, therefore, increasingly unwise. If appellees were thus allowed to limit their options during their reconsideration of the location of Arlington I-66, reconsideration would be a hollow gesture. See Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission, 449 F.2d 1109, 1128 (D.C.Cir.1971). We reverse the decision of the district court and remand this case for entry of an order enjoining further steps towards the construction and acquisition of right-of-way for Arlington I-66 pending reconsideration of the proposed location of this highway in accordance with the applicable statutes. Upon entry of such order, our injunction of November 24, 1971, will expire.

I. FACTUAL BACKGROUND

Interstate-66 is scheduled to extend from I-81, near Strasburg, Virginia, over 75 miles to the Potomac River in Arlington County. The section in controversy begins at the Arlington County line, after the highway has passed through Fairfax County from the Washington Beltway, and ends at the Theodore Roosevelt Bridge. For the route of I-66 through Arlington, appellees intend to use 9.6 acres of Bon Air Park and about 5 acres of Spout Run Parkway. Bon Air Park is a tract of land acquired by Arlington County for park and highway purposes and presently used for a park. Spout Run Parkway is a park owned by the federal government and administered by the National Park Service. It is planned that I-66 will be connected in Spout Run Parkway to another proposed interstate highway, I-266, with a bridge to be constructed across the Potomac at a point called "Three Sisters." Whether and where I-266 and the Three Sisters Bridge should be built have been the subject of considerable public controversy and litigation. See D. C. Federation of Civil Associations v. Volpe, 140 U.S.App.D.C. 162, 434 F.2d 436 (1970); D. C. Federation of Civic Associations v. Volpe, 459 F.2d 1231 (D.C. Cir. 1971). If the proposed I-266 route to the Three Sisters Bridge is built, the 31.6 acres of Spout Run Parkway will be conveyed to the Virginia Department of Highways in exchange for funds to acquire the same number of acres along George Washington Parkway, and 13.97 acres of Spout Run Parkway will be used for I-266. After emerging from Spout Run Parkway, I-66 is scheduled to converge with Lee Highway for about one mile until it reaches the Potomac. Lee Highway, currently a three-to-four-lane road, will be separated at this point by the six lanes of I-66 into four eastbound lanes south of I-66 and four westbound lanes north of I-66, so that for about one mile there will be a fourteen-lane road.

Before a highway may be constructed with 90 percent federal funds as a part of the Federal Interstate System, the procedure set out by the Federal-Aid Highway Act, 23 U.S.C.A. § 101 et seq., must be followed. First, a route must be selected by the highway department of a state and approved by the Secretary of Transportation. 23 U.S.C.A. § 103(d) & (e)(1). Next, the state highway department must submit to the Secretary for his approval a "program . . . of proposed projects" that the state wishes to construct with its portion of the funds appropriated for highway construction. 23 U.S.C.A. § 105(a). Then, the state highway department must submit to the Secretary for approval "such surveys, plans, specifications, and estimates for each proposed project included in an approved program as the Secretary may require." 23 U.S.C.A. § 106(a). This is known as "P. S. & E. approval." As a prerequisite to P. S. & E. approval for each "project," the state highway department must certify to the Secretary that it has held public hearings on the location for each project and must submit a transcript of the hearings to the Secretary. 23 U.S.C.A. § 128. Following P. S. & E. approval, project agreements covering construction and maintenance are entered into between the Secretary and the state highway department. 23 U.S.C.A. § 110. Advertisements for bids may then be published and construction contracts awarded. Finally the highway is constructed under the supervision of the state highway department. 23 U.S.C.A. §§ 112, 114.

The next step towards the construction of the Arlington County "project" of I-66 appears to be P. S. & E. approval. The public hearing relating to the location of this project was held in October 1958. In February 1959, the Virginia State Highway Commission chose the Fairfax-Bluemont Drive corridor as the location for Arlington I-66, and their recommendation was approved by the Federal Bureau of Public Roads in June 1959. This process was given extensive newspaper coverage. The route selected has been shown in the Arlington County General Land Use Plan since 1961. Arlington County has relied upon the proposed route in its zoning, traffic, and utilities location planning, and numerous businesses have located near the proposed route. By January 11, 1965, acquisition of the right-of-way for the entire Arlington I-66 project had been approved, and by July 28, 1966, acquisition-of-right-of-way agreements between the state highway department and the Secretary had been entered into for the entire project. In the proposed corridor, 93.9 percent of all dwellings have been acquired; 98.5 percent of all businesses have been acquired; 75.6 percent of all families have been relocated; 84.6 percent of all businesses have been relocated; and 84.4 percent of all necessary right-of-way has been acquired. The cost of these acquisitions, for which the state has been reimbursed pursuant to the acquisition agreements, was $28,670,123.07. The estimated cost to complete the acquisition of right-of-way is $5,329,876.93. The Commonwealth of Virginia has expended $1,500,000 in preliminary engineering which will not be reimbursed by the federal government. In short, most planning and preliminary work has been done. Most of what remains to be done is actual construction, which has scarcely begun: a 0.298-mile approach to the Theodore Roosevelt Bridge, miscellaneous construction work on the bridge, and a 10-foot-by-10-foot box culvert under Lee Highway near...

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