508 F.2d 927 (2nd Cir. 1974), 63, Conservation Soc. of Southern Vermont, Inc. v. Secretary of Transp.

Docket Nº:63, 288, 341, Dockets 73-2629, 74-2168, 73-2715.
Citation:508 F.2d 927
Party Name:The CONSERVATION SOCIETY OF SOUTHERN VERMONT, INC., et al., Appellees, v. SECRETARY OF TRANSPORTATION, et al., Appellants in No. 73-2629. The VERMONT NATURAL RESOURCES COUNCIL, INC., et al., Appellants in No. 74-2168, v. Claude S. BRINEGAR, Secretary of Transportation, et al., Appellees, Town of St. Johnsbury, Intervenor-Appellee.
Case Date:December 11, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 927

508 F.2d 927 (2nd Cir. 1974)

The CONSERVATION SOCIETY OF SOUTHERN VERMONT, INC., et al., Appellees,

v.

SECRETARY OF TRANSPORTATION, et al., Appellants in No. 73-2629.

The VERMONT NATURAL RESOURCES COUNCIL, INC., et al.,

Appellants in No. 74-2168,

v.

Claude S. BRINEGAR, Secretary of Transportation, et al.,

Appellees, Town of St. Johnsbury, Intervenor-Appellee.

Nos. 63, 288, 341, Dockets 73-2629, 74-2168, 73-2715.

United States Court of Appeals, Second Circuit

December 11, 1974

Argued Sept. 17, 1974.

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Harvey D. Carter, Jr., Bennington, Vt. (Williams, Witten, Carter & Wickes, Bennington, Vt., R. Paul Wickes, Bennington, Vt., Haynes N. Johnson, Stamford, Conn., Frederick Pope, Jr., Brattleboro, Vt., on the brief), for appellees in No. 73-2699 and appellants in No. 74-2168.

Robert C. Schwartz, Asst. Atty. Gen., Vt., William B. Gray, Asst. U.S. Atty., Rutland, Vt., Edmund B. Clark, Atty., Dept. of Justice, Washington, D.C. (Wallace H. Johnson, Asst. Atty. Gen., George W. F. Cook, U.S. Atty., D. Vt., Kenneth A. Rubin, Atty., Dept. of Justice, Washington, D.C., on the brief), for appellants in No. 73-2699 and appellees in No. 74-2168.

Sarah Chasis, Angus Macbeth, New York City, William F. Morrill, Lakeville, Conn., John Souweine, of counsel for amici curiae Natural Resources Defense Council, Inc., in No. 73-2629.

J. G. Speth, Edward l. Strohbehn, Jr., Washington, D.C., on the brief, for amicus curiae Natural Resources Defense Council, Inc., in No. 74-2168.

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Edward R. Zuccaro, St. Johnsbury, Vt. (Witters, Zuccaro, Willis & Lium, St. Johnsbury, Vt.), for intervenor-appellee.

Before MOORE, MULLIGAN and ADAMS, [*] Circuit Judges.

ADAMS, Circuit Judge:

Two cases are consolidated for appeal here because they present an identical issue, namely, whether this Circuit adheres to the holding of Greene County Planning Board v. Federal Power Commission, 1 that an environmental impact statement (EIS) sufficient to satisfy the requirements of the National Environmental Policy Act 2 must be prepared by the reaponsible federal agency. We reaffirm that Greene County remains the law of this Circuit, 3 and that the Federal Highway Administration (FHWA) must formulate and prepare its own impact statement to assess the environmental effects of proposed federally-funded highway projects.

I. Background.

Objections by environmental groups to proposed Vermont highway construction have generated both these cases, and the defendants in each include the state and federal highway officials. 4

In Conservation Society of Southern Vermont v. Secretary of Transportation, improvement was planned for a twenty-mile segment of U.S. Route 7 between Bennington and Manchester, Vermont. The district court, Circuit Judge Oakes sitting by designation, granted a permanent injunction in 1972 against proceeding with construction pending compliance with the mandate of NEPA. 5 In 1973, the federal defendants, asserting procedural and substantive compliance with NEPA, moved to dissolve the Route 7 injunction. That motion was denied. Federal participation in preparation of the EIS, Judge Oakes concluded, was scant, perfunctory and insufficient to satisfy the procedures of NEPA as that Act was interpreted in Greene County. 6

Judge Oakes found that the ultimate conversion of the Route 7 corridor into a divided limited-access superhighway through Connecticut, Massachusetts and Vermont is not the subject of an existing federal plan. However, he found that it is nonetheless viewed by the respective state highway departments as a goal 'possible of accomplishment with legislative and federal approval over a long-range period of time, with federal approval taking place on an ad hoc basis at the division engineer level.' 362 F.Supp. at 636. The district court determined that the FHWA has knowledge of each state's planning process and acts in a 'partnership' with the officials of each state respectively. Conversion of isolated portions of Route 7 into a superhighway, the court stated, will produce greater traffic, thus creating synergistic

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pressure for further construction to connect the newly expanded sections.

The district court therefore held that before the contemplated construction was undertaken, a comprehensive exploration into the environmental impact of development alternatives through the 280 mile corridor was called for. Judge Oakes concluded that there was justification for his order both under NEPA and under the Intergovernmental Cooperation Act of 1968. 7 This appeal by defendants followed.

In the companion case, Vermont Natural Resources Council v. Brinegar, an appeal is taken by environmentalist-plaintiffs from rulings of District Judge Coffrin on several issues relating to a proposed construction denominated the Sleepers River Interchange. 8 The interchange, to be located in St. Johnsbury, Vermont, would provide a highway connection for motorists between U.S. Route 2 (an east-west road) and Interstate I-91 (a north-south road). Without the interchange, those who wished to transfer from one highway to the other would have to leave the highway and pass through the narrow streets of St. Johnsbury. The two principal roadways, Route 2 and I-91, are presently under construction; the sole project at issue before this Court is the proposed interchange.

As envisaged, building the St. Johnsbury interchange would require the channelization 9 of approximately one mile of Sleepers River. The environmentalists sought to enjoin the project because of alleged failures by defendants to comply with federal law. They alleged procedural and substantive violations of NEPA 102(2)(c). 10 Before the trial court, and here, that the draft and final EIS were prepared by the state agency rather than by the federal agency and observed that, contrary to statute, the EIS did not consider alternatives to the construction. While conceding certain shortcomings in the EIS, the district court found the construction essential and declined to issue an injunction. Noncompliance with the permit requirements of the Federal Water Pollution Control Act of 1972 11 is also pressed on this appeal as grounds for enjoining further work on the interchange. The district court found that plaintiffs could not maintain such cause of action because they had not satisfied a sixty-day notice requirement established by the Pollution Control Act as a precondition to private suit. 12

II. The 'Responsible Official' to Prepare the EIS.

Consideration of environmental factors in planning major federal projects has been deemed a high national priority. The duty of a federal agency under NEPA is to produce, as part of a determination whether to proceed with a project, a detached and comprehensive analysis of the impact on the environment of such project. 13

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In Greene County, supra, the New York Power Authority, in accordance with the regulations of the Federal Power Commission, prepared and filed with the Commission an impact statement to accompany an application for a new power line. The Commission reviewed and circulated the statement that had been prepared by the Authority, a state agency, in alleged satisfaction of its duty under NEPA. Chief Judge Kaufman held that in so doing, the Federal Commission:

abdicated a significant part of its responsibility by substituting the statement of (the state agency) for its own. The Commission appears to be content to collate the comments of other federal agencies, its own staff and the intervenors and once again to act as an umpire. The danger of this procedure, and one obvious shortcoming, is the potential, if not likelihood, that the applicant's statement will be based upon self-serving assumptions. 14

NEPA, Chief Judge Kaufman stated, 'explicitly requires the (federal) agency's own detailed statement' of the expected environmental impact of a major federal action. 15 The Act places 'primary and nondelegable responsibility' for preparation of the EIS on the federal agency. 16 Accordingly, Greene County held that, to the extent regulations of the Federal Power Commission did not implement Congressional policy, compliance with the Commission's regulations would not satisfy NEPA.

In the highway cases presently before us, the FHWA is the initial decision maker under the Act. While it does not plan, design or construct highways, FHWA decides whether the commitment of millions of dollars of federal money should be allocated to specific highway projects. Accordingly, having carefully considered the Act, the regulations and precedent, we conclude that FHWA is in the best position to weigh the costs to the environment and the benefits hoped for from the project and then to reach, as it must, a decision based on 'its own evaluation of the environmental issues.' 17

A state agency is established to pursue defined state goals. In attempting to secure federal approval of a project, 'self-serving assumptions' may ineluctably color a state agency's presentation of the environmental data or influence its final recommendation. Transposing the federal duty to prepare the EIS to a state agency is thus unlikely to result in as dispassionate an appraisal of environmental considerations as the federal agency itself could produce. Judge Oakes declared that:

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The Vermont Highway Department has the duty . . . to follow legislative mandate in regard to proposed highway construction, and the construction here contemplated (Route 7) 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. 18

Requiring strict adherence to the...

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