Citizen Advocates for Responsible Expansion v. Dole, Civ. A. No. 4-83-210-K.

• Citation: 586 F. Supp. 1094
• Decision Date: 22 February 1984
• Docket Number: Civ. A. No. 4-83-210-K.
• Parties: CITIZEN ADVOCATES FOR RESPONSIBLE EXPANSION, INC. ("I-CARE"), et al v. Elizabeth DOLE, as Secretary of the United States Department of Transportation, et al.
• Court: U.S. District Court — Northern District of Texas

586 F. Supp. 1094

CITIZEN ADVOCATES FOR RESPONSIBLE EXPANSION, INC. ("I-CARE"), et al v. Elizabeth DOLE, as Secretary of the United States Department of Transportation, et al.

Civ. A. No. 4-83-210-K.

United States District Court, N.D. Texas, Fort Worth Division.

February 22, 1984.

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Arnold & Porter by Scott H. Lang, Washington, D.C., David Bonderman, Fort Worth, Tex., for plaintiffs.

Stanley S. Harris, U.S. Atty. by Judith Bartnoff, Asst. U.S. Atty., Washington, D.C., Federal Highway Admin., DOT by Jean G. Rogers and James O. Price, Fort Worth, Tex., for defendants.

MEMORANDUM OPINION

BELEW, District Judge.

In this action, I-CARE (Citizen Advocates for Responsible Expansion, Inc.) and other Plaintiffs, have joined together seeking declaratory and injunctive relief in an effort to have the Defendants reconsider and redesign portions of two proposed federally funded highway projects in Fort Worth, Texas, as now approved by the Secretary of the Department of Transportation. I-CARE is a non-profit corporation comprised of individuals, businesses, civic organizations, and labor unions.

Besides I-CARE, National Trust for Historic Preservation in the United States ("National Trust"), Ruth Carter Stevenson, Edmund Bowen Frost, Robert Hildreth Frost, Harold Jefferson Frost and George Marcus Frost are also Plaintiffs.

Defendants are Elizabeth Dole, Secretary of the United States Department of Transportation ("DOT"); Ray Barnhart, Administrator of the Federal Highway Administration ("FHWA"); and Mark G. Goode, Engineer-Director of the State of Texas Department of Highways and Public Transportation ("SDHPT").

Jurisdiction

This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331 (1976) (Federal Question), 28 U.S.C. § 1361 (1976) (Mandamus), 28 U.S.C. §§ 2201-2202 (1976) (Declaratory Judgment), and 5 U.S.C. §§ 701-706 (1982) (Administrative Procedure Act). Venue is proper pursuant to 28 U.S.C. § 1391(e) (1976).

Background

Interstate 30 (I-30) is an east-west interstate highway that runs through the City of Fort Worth, Texas, and intersects with Interstate 35W (I-35W), a north-south interstate highway, at the southeast corner of the Fort Worth Central Business District ("CBD"). Construction of this I-30/I-35W interchange, popularly known as the "Mixmaster" began in 1956, before the National Interstate Highway System came into existence, and was completed in 1958. The west increment to and from the Mixmaster was built in four stages between 1958 and 1960. The fourth stage, now designated as part of I-30, is the focus of this lawsuit. It is located on an elevated structure ("the Overhead") that cuts through the southern edge of the CBD providing four lanes of roadway, two eastbound and two westbound.

Construction of the Overhead began in March, 1959, and was completed in April, 1960. It was built with Federal Interstate funds and is approximately .9 miles long with an eastern terminus near the intersection of Commerce Street and Lancaster Avenue and a western terminus near the intersection of Lamar Street and Lancaster Avenue.

The two federally funded highway projects subject to this lawsuit have been designated the "I-30 Project" and the "I-35W Project." The I-30 Project, as presently proposed and approved by Defendants, consists of expanding roughly six miles of I-30 between Interstate 820 on the west and Summit Avenue on the east.¹ It will cost approximately $100 million in 1981 dollars and will be funded, in substantial part, with 90 percent federal funds under the "4-R" program for resurfacing, restoration, rehabilitation, and reconstruction of interstate highways, 23 U.S.C. § 103, 104. Defendants have prepared and circulated for public and interagency comment a Draft and Final Environmental Impact Statement ("E.I.S.") describing the environmental impacts of and alternatives to the I-30 Project.

The I-35W Project involves expansion from four to eight lanes of approximately eight miles of I-35W from Spur 280, the north increment of the Mixmaster interchange, to Highland Terrace, the south increment of the I-35W/I-30 interchange.

The I-35W Project also expands more than two miles of I-30 from Riverside Drive, the east increment of the Mixmaster interchange, to Summit Avenue, the west increment of the Mixmaster interchange. Thus, Summit Avenue is both the eastern terminus of the I-30 Project and the western terminus of the west leg of the I-35W Project. Since the Overhead lies east of Summit Avenue, its expansion is considered part of the I-35 Project, notwithstanding the fact that it is part of I-30.

The I-35W Project is estimated to cost approximately $251 million in 1981 dollars and has been approved for funding with 90 percent Federal Aid Interstate ("FAI") construction funds. Defendants processed the I-35W Project with a Negative Environmental Declaration concluding that the project, including the expansion of the Overhead, would not have significant impacts on the quality of the surrounding human environment.

At this time, the Plaintiffs have asked the Court to enjoin both the I-35W Project north of Rosedale and the I-30 Project east of University Drive. The Plaintiffs' objective is to prevent the planned expansion of the Overhead so that certain alternatives to the planned expansion of the Overhead can be considered. In essence, the Plaintiffs want the Overhead torn down and replaced with a "depressed" or "below grade" highway.² As grounds for the injunctive and declaratory relief sought, Plaintiffs have alleged that Defendants failed to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. (NEPA), Section 4(f) of the Transportation Act of 1966, 49 U.S.C. § 1653(f);³ the public hearing and notice requirements of the Federal-Aid Highway Act, 23 U.S.C. § 128; and the Federal Highway Administration (FHWA) noise abatement regulations, 23 C.F.R., Part 772.

THE NATIONAL ENVIRONMENT POLICY ACT of 1969 ("NEPA"), 42 U.S.C. § 4321, et seq.

Plaintiffs have alleged two violations of NEPA. In Count I of their five count amended complaint, they alleged that the Defendants violated NEPA by processing the I-35 Project with a Negative Declaration rather than an Environmental Impact Statement ("EIS"). In Count II they alleged that the Defendants violated NEPA by "segmenting" the I-30 Project and thereby rendering the I-30 Project's EIS inadequate.

The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., provides that federal agencies must prepare an environmental impact statement for every "major federal action significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). All parties concede and this Court agrees that the I-35W Project is a "major federal action" within the meaning of the statute. This Court's task, then, is to review the federal and state Defendants' initial determination that the I-35W Project will not significantly affect the quality of the human environment.

In the Fifth Circuit, administrative decisions to issue a Negative Declaration rather than an EIS are reviewed under a "reasonableness" standard. Sierra Club v. Hassell, 636 F.2d 1095, 1097 (5th Cir. 1981).

"A reviewing court is to review the administrative records as well as other evidence to determine whether the agencies adequately considered the values set forth in NEPA and the potential environmental effects of the project before reaching a decision on whether an environmental impact statement was necessary. If the agencies engaged in this analysis and reasonably concluded on the basis of their findings that an impact statement was not required, their determinations will be upheld."

Id. at 1097-98.

In reviewing the Defendants' determination that an environmental impact statement was not required, this Court must not substitute its own views for those of the federal and state agencies since "it is not the province of the court to review the agency decision on the merits as to the desirability vel non of the project." Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 425 (5th Cir.1973).

Neither may this Court engage in hindsight in assessing the reasonableness of the agency decision, but must judge on the basis of the information that was before the agency at the time the decision was made. Vermont Yankee Nuclear Power Corp. v. NRCP, 435 U.S. 519, 547, 554-55, 98 S.Ct. 1197, 1213, 1217, 55 L.Ed.2d 460 (1978).

Applying these principles to this case, the Court concludes that the Defendants did not act unreasonably in processing the I-35W Project with a Negative Declaration.

Examples given in the regulations of actions which ordinarily have a significant effect on the quality of the human environment and which, thereby, suggest that an EIS is appropriate are:

(1) An action that has more than minimal effect on properties protected under section 4(f) of the DOT Act or Section 106 of the Historic Preservation Act.

(2) An action that is likely to be highly controversial on environmental grounds or with respect to the availability of adequate relocation housing.

(3) An action that is likely to have a significantly adverse impact on natural, ecological, cultural or scenic resources of national, State or local significance.

(4) An action that (i) causes significant division or disruption of an established community or disrupts orderly, planned development, or is determined to be significantly inconsistent with plans or goals that have been adopted by the community in which the project is located, as determined by a responsible official(s); or (ii) causes a significant increase in traffic congestion.

(5) An action which (i) is determined to be inconsistent with any Federal, State or local law or regulation relating to the environment, or (ii) has a significant determinable impact on air or water quality or on ambient noise levels for adjoining

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