Action for Rational Transit v. West Side Highway, 74 Civ. 5572
| Citation | 536 F. Supp. 1225 |
| Decision Date | 31 March 1982 |
| Docket Number | No. 74 Civ. 5572,81 Civ. 3000.,74 Civ. 5572 |
| Parties | ACTION FOR RATIONAL TRANSIT, et al., Plaintiffs, v. WEST SIDE HIGHWAY PROJECT, By its Executive Director, Lowell K. BRIDWELL, et al., Defendants. SIERRA CLUB, et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants. |
| Court | United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York |
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William Hoppen, New York City, for plaintiffs in No. 74 Civ. 5572.
John S. Martin, Jr., U. S. Atty. by R. Nicholas Gimbel, Stuart M. Bernstein, New York City, for defendants Andrew L. Lewis, Jr., U. S. Secretary of Transp.; Walter C. Barber, Acting Administrator, and Richard Dewling, Acting Regional Administrator, of Environmental Protection Agency and U. S. Army Corps of Engineers.
Beveridge & Diamond by Gary H. Baise, Jonathan Z. Cannon, Charles A. Patrizia, Carl Eardley, Washington, D. C., for defendants West Side Highway Project; Lowell K. Bridwell, Executive Director of WSHP; Hugh L. Carey, Governor of New York State; and William C. Hennessy, New York State Commissioner of Transp.
Donovan, Leisure, Newton & Irvine by Sanford M. Litvack, Cathy Fleming, William A. Davis, II, New York City, for Robert F. Flacke, Commissioner of the New York State Dept. of Environmental Conservation.
Frederick A. O. Schwarz, Jr., Corp. Counsel by John C. Brennan, New York City, for Edward I. Koch and Francis X. McArdle.
Wikler, Gottlieb, Taylor & Howard by Harry A. Gottlieb, New York City, for J. William Burns, Chairman, and Frank T. Johnson, Executive Director, of the TriState Regional Planning Com'n.
Butzel & Kass by Albert K. Butzel, Mitchell S. Bernard, Michael B. Gerrard, Robert J. Sugarman, New York City, for plaintiffs in No. 81 Civ. 3000.
Lawrence R. Liebesman, Washington, D. C., for Environmental Defense Section, Land and Natural Resources Div., U. S. Dept. of Justice.
These two actions have been brought to attack, on various legal grounds, the construction of an interstate highway and urban renewal project known as Westway. Plaintiffs in the Action for Rational Transit ("ART") case complain that the construction of this project involves unwarranted devotion of federal funds to facilitating automobile and truck traffic on Manhattan Island, with attendant air pollution problems. The ART plaintiffs urge that preference should have been given to the improvement of mass transit in the form of subway, rail and bus transportation. These plaintiffs contend that the actions taken by various state and federal officials to implement the Westway project have violated certain provisions of federal law, namely the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the Federal Aidâ Highways Act, 23 U.S.C. §§ 101-136, and the National Environmental Policy Act (commonly known as "NEPA"), 42 U.S.C. §§ 4321 et seq. Plaintiffs in the Sierra Club case attack the issuance of a landfill permit by the United States Army Corps of Engineers. The Sierra Club plaintiffs allege that the actions of the Corps of Engineers violate NEPA, and also violate Section 404 of the Clean Water Act, 33 U.S.C. § 1344, and Section 10 of the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. § 403.
The motions of defendants in the ART case for summary judgment dismissing the action are granted with the following exception. The Court will hold a further hearing in that case to consider whether there should be an injunction against the Secretary of Transportation, preventing federal funding for Westway, on the ground of failure to comply with the requirements of NEPA in respect to the impact of the proposed landfill on fishery resources.
In the Sierra Club case, summary judgment is granted dismissing all claims except those relating to fishery resources. A trial has been held on the latter claims, and the findings of fact and conclusions of law on these claims are contained in this opinion.
For the reasons there set forth, it is held in the Sierra Club case that the granting of a landfill permit for Westway by the Corps of Engineers violated the National Environmental Policy Act, the Clean Water Act and the Rivers and Harbors Appropriations Act. The permit granted by the Corps of Engineers is set aside, and the question of whether the Westway landfill should be permitted will be remanded to the Corps with appropriate directions to comply with the applicable statutes and regulations. The landfill for the construction of Westway will be enjoined until and unless compliance with the law is shown.
The basis for this ruling is the failure of the Corps of Engineers to make public disclosure of the facts, as required by NEPA, regarding the impact of the landfill on fishery resources, and the failure of the Corps to give adequate consideration to this impact in its own review of the issue.
The Hudson River estuary plays an important role in the production of certain sports and commercial fish stocks. The most prominent of these is striped bass, which is a valuable and prized fish along the Atlantic seaboard. Although the proposed landfill area is located within this estuary, the Federal Highway Administration and the New York State Department of Transportation took the position in their Environmental Impact Statement, filed under NEPA, that the landfill area lacks most of the normal estuarine marine life and is a "biological wasteland." However, during the Corps of Engineers proceedings, the Corps was presented with data which proved that the proposed landfill area is an important habitat for juvenile striped bass prior to their becoming a part of the Atlantic coast fishery. The Corps was further presented with responsible views of the National Marine Fisheries Service, the Fish and Wildlife Service, and the Environmental Protection Agency to the effect that the value of the area as a marine habitat is sufficiently great that its destruction would be seriously detrimental to the public interest. Indeed, the National Marine Fisheries Service took the position that the proposed landfill area is a critical nursery habitat for striped bass, and that the landfill would jeopardize the survival of the entire Hudson River striped bass population and its substantial contribution to the Atlantic fishery.
The Corps of Engineers was obligated under NEPA to make public disclosure not only of the facts about the landfill area as an estuarine habitat for fish, but also of the views of the federal agencies having expertise and jurisdiction on the subject of fish and wildlife resources.
The Corps failed to comply with these legal obligations, and filed no environmental impact statement. It acquiesced in the urgings of the Federal Highway Administration and the New York State Department of Transportation that the facts and issues about fishery resources be withheld. Also, there is no showing that even within the Corps the relevant questions were given consideration in the manner required by law.
The issues here do not involve a minor technicality. The debate over Westway in the political arena, and the controversies before various regulatory agencies, have been vigorous and, to the view of many, closely balanced. It is the judgment of Congress, as expressed in NEPA, that this type of process cannot function properly unless the various interested constituencies are fully and fairly informed of the environmental facts.
The striped bass fishery contributes to the economic well-being and enjoyment of literally millions of citizens. Moreover, because of the environmental problems of the present age, the health of this fishery is a matter of concern. Consequently, the failure to reveal the facts about the proposed landfill area as a striped bass habitat, and the failure to give adequate consideration to this issue, amounted to a critical deficiency in the administrative proceedings in this matter.
A further hearing will be held to determine the exact terms of the injunctive relief. One point for consideration is whether the injunction should include the Federal Highway Administration. The latter agency is not a defendant in the Sierra Club case, although the Secretary of Transportation, in whose department the Highway Administration is located, is a defendant in the ART case. However, because of the role of the Highway Administration in the events, and because its own Environmental Impact Statement has been shown to be deficient, the further proceedings should include the question of whether this agency should be covered by the injunctive relief.
Westway is proposed to be constructed on the west side of Manhattan Island from the Battery to 42nd Street. One phase of the project involves replacement of the elevated West Side Highway, which is being demolished south of 42nd Street as a result of its badly deteriorated condition. The major portion of the proposed new highway will be tunneled in landfill to be placed in the Hudson River starting at Battery Park City and running to 34th Street. The Hudson River piers in this area, all of which have fallen into total disuse as piers, would be removed to make way for the landfill. The area proposed for the landfill is considerably larger than what is necessary for the highway. Consequently a major phase of the Westway project involves creation of areas for residential and commercial development, and also parkland along the Hudson River.
The landfill, the highway construction, and the creation of the parkland will all be carried out by the State of New York. It is apparently not yet determined how the real estate development will be financed and carried out, or by whom this will be done. It is estimated that construction of Westway will require about ten years. The construction cost was officially estimated in 1977 to be $1.2 billion. The actual cost will undoubtedly be much greater â some believe, $2 billion or more.
Westway will be part of the interstate highway system....
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