Citizens for Balanced Environment v. Secretary

• Decision Date: 18 July 1980
• Docket Number: Civ. No. 15054.
• Citation: 515 F. Supp. 151
• Parties: CITIZENS FOR BALANCED ENVIRONMENT AND TRANSPORTATION, INC., et al, Plaintiffs, v. SECRETARY OF TRANSPORTATION et al, Defendants.
• Court: U.S. District Court — District of Connecticut

515 F. Supp. 151

CITIZENS FOR BALANCED ENVIRONMENT AND TRANSPORTATION, INC., et al, Plaintiffs, v. SECRETARY OF TRANSPORTATION et al, Defendants.

Civ. No. 15054.

United States District Court, D. Connecticut.

July 18, 1980.

Haynes N. Johnson, Bryan, Parmelee, Johnson & Bollinger, Stamford, Conn., Harvey D. Carter, Jr., Bennington, Vt., Gregory I. McGregor, Boston, Mass., for plaintiffs.

Francis J. Collins, Cutsumpas, Collins & Hannafin, Danbury, Conn., for amicus curiae Brookfield Planning Commission.

Scott Warner, Salisbury, Conn., for amicus curiae Housatonic Valley Association.

William Lynch, Conn. Dept. of Transportation, Wethersfield, Conn., Richard Blumenthal, U.S. Atty., Diana Garfield, Asst. U.S. Atty., New Haven, Conn., for Volpe and Siccardi.

Alfred F. Wechsler, Richard Goodman, Hartford, Conn., for A. Earl Wood and George S. Koch.

Carl R. Ajello, Atty. Gen., F. D. Neusner, Kenneth N. Tedford, Asst. Attys. Gen., Hartford, Conn., for Conn. Commissioner of Transportation and Connecticut Deputy Commissioner of Transportation, Bureau of Highways.

Gary A. MacMillan, Francis J. McNamara, Jr., Cummings & Lockwood, Stamford, Conn., for General Datacomm Industries, Inc., The Gilbert & Bennett Mfg. Co., The Perkin-Elmer Corp., The Holson Co., Richardson-Merrell, Inc., First Merritt Corp., Emery Air Freight Corp., Pitney Bowes, Inc. and Boehringer-Ingelheim Ltd.

William B. Fitzgerald, Carmody & Torrance, Waterbury, Conn., in lieu of Walter F. Torrance for the Connecticut Light & Power Co.

Stephen J. O'Brien, Fairfield, Conn., for The J. Alden Weir Farm Committee for Heritage Conservation, Inc.

RULING ON MOTION TO VACATE PERMANENT INJUNCTION

DALY, District Judge.

Plaintiff (CBET) is the successor in interest of the Committee to Stop Route 7, aggrieved by the planned construction of a new expressway to replace the present U.S. Route 7 from Norwalk, Connecticut to Danbury, Connecticut.¹ Its original complaint, filed in 1972, seeks to block the construction of the proposed expressway for failure to prepare an environmental impact statement (EIS) as required by the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq. The essence of plaintiff's complaint focuses on the need to comply with § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C).²

On July 17, 1972 Judgment entered for the plaintiff enjoining defendants³ "from taking any steps to construct any portion of relocated Route 7 until ... an EIS has been prepared according to the provisions of § 102(2)(c) of NEPA."⁴ 346 F.Supp. at 742. The defendants have filed a copy of the final EIS⁵ prepared for the proposed expressway extending from Norwalk to Danbury and approved by the director of the Office of Environment and Design of the Federal Highway Administration FHWA.⁶

By motion filed March 30, 1979 the defendant-intervenors seek to vacate the injunction entered by Judge Newman in 1972. The defendants claim that the EIS submitted to this Court satisfies both Judge Newman's order and the requirements of NEPA. Plaintiff's response of May 3, 1979 outlines its objections to lifting the stay. The plaintiffs claim that the FEIS is inadequate, in that it fails to reflect "a comprehensive, good-faith study of all relevant environmental concerns as required by NEPA." (Brief for plaintiff at 2, May 3, 1979.) The plaintiffs' objections may be categorized into four general areas: (1) transportation planning; (2) traffic engineering; (3) air quality analysis; and (4) consideration of alternatives.⁷

This opinion addresses plaintiff's objections only so far as they challenge the defendants' compliance with the procedural requirements of NEPA.

BACKGROUND

In 1957, the Connecticut Legislature provided official impetus for the construction of a new north-south expressway to replace U.S. Route 7 from Norwalk to New Milford.⁸ Between 1957 and 1962 the Connecticut Department of Transportation (CDOT) (then the Connecticut Highway Department) investigated possible routes for the new expressway. Public hearings were held in Norwalk in 1961, in Wilton in 1964 and in the towns of Ridgefield, Redding and Danbury in 1965.

The proposed project covers approximately twenty miles, passing through the towns mentioned above and ending in the vicinity of Interstate 84 in Danbury, which has been open to traffic for several years. The state and federal government will share the cost of the proposed design alternative, estimated to be 186 million dollars.⁹ Survey and design work for the northern portion of Route 7 commenced after the General Assembly authorized the necessary funding in 1965. In 1967 construction began and a one and one half mile segment running from Interstate 95 to New Canaan Avenue in Norwalk was completed in 1971.

Pursuant to Policy and Procedure Memorandum 20-8, issued by the FHWA, Public Design hearings were held in 1969 and 1970. After it was announced that construction was to proceed in the Wilton area the instant suit was filed.

Following Judge Newman's decision in 1972 the CDOT Commissioner and the FHWA Division Administrator initiated action to obtain funding for the preparation of the EIS. Approval was given on August 16, 1972 and Project Number F-30(15) assigned.

Social, environmental and economic information, inter alia, was gathered by CDOT in 1972 and 1973 for the Draft EIS/4(f) (DEIS).¹⁰ New studies as well as compilation and analysis of independent projects already completed or proceeding were included. The DEIS was completed in January of 1974 and made available to the appropriate governmental agencies and the public for comment in February of 1974.¹¹ After an appropriate comment period¹² a Final EIS/4(f) (FEIS) was prepared.¹³

The FEIS, designated FHWA-CONN-EIS-74-01-F, incorporates all the responses and comments to the DEIS into twenty-four subject areas. The CDOT and the Connecticut Division of the FHWA gave their respective approval to the FEIS on May 24 and May 26, 1977.¹⁴ The FEIS was then reviewed by the regional and Washington offices of the FHWA and, then Secretary of Transportation, Brock Adams. The FHWA gave final approval of the FEIS on August 14, 1978; note 6, supra. Notice of the publication and approval of the FEIS was made on August 28, 1978 in the Federal Register and August 29, 1978 in local papers. Respective thirty day response periods permitted comments from governmental agencies and the public.¹⁵

Before considering plaintiff's broad-based allegations of defendants' non-compliance with NEPA, an understanding of this Court's scope of review is essential.

JUDICIAL REVIEW UNDER NEPA

The court's role in overseeing compliance with NEPA is to determine first, whether the agency has substantially complied with the procedural mandate of the statute; and second, has the agency, in satisfying that mandate, undertaken a comprehensive, good-faith consideration of the consequences of its action. The Supreme Court emphasizes the essentially procedural duties of an agency: "NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural." Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). If the decision of the agency is made in good-faith, after a "fully informed and well considered" judgment, a reviewing court has no power to set it aside. The only role of a reviewing court, in fact, is to insure that "once an agency has made a decision subject to NEPA's procedural requirements, ... the agency has considered the environmental consequences; it cannot `interject itself within the area of discretion of the executive as to the choice of the action to be taken.'" Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 228, 100 S.Ct. 497, 500, 62 L.Ed.2d 433 (S.Ct.1980), quoting, Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 96 S.Ct. at 2730 n.21 (1976).¹⁶ While such a standard may appear to be an abdication of responsibility, it takes into account the realization that issues requiring a high level of technical expertise must "properly be left to the informed discretion of the responsible federal agencies. Citation omitted. Absent a showing of arbitrary action, ... the courts must assume that the agencies have exercised this discretion appropriately." Kleppe v. Sierra Club, supra, at 412, 96 S.Ct. at 2731.

A host of Second Circuit decisions, which address themselves to the reviewing court's role, parallel these most recent Supreme Court pronouncements.¹⁷ The most comprehensive synthesis is Judge Mansfield's decision in County of Suffolk v. Secretary of Interior, 562 F.2d 1368 (2d Cir.), cert. denied, 434 U.S. 1064, 98 S.Ct. 1238, 55 L.Ed.2d 764 (1978).

The district court does not sit as a superagency empowered to substitute its scientific expertise or testimony presented to it de novo for the evidence received and considered by the agency which prepared the EIS. Citation omitted. The court's task is merely `to determine whether the EIS was compiled in objective good faith and whether the resulting statement would permit a decision maker to fully consider and balance the environmental factors.' Citation omitted. `The court is not empowered to substitute its judgment for that of the agency.' Citations omitted. This is particularly true when it comes to evaluating the factual conclusions of the EIS. If the agency's conclusions have a `substantial basis in fact,' citation omitted, and if the EIS has set forth responsible opposing scientific views, citation omitted, it is not for the district court to resolve conflicting scientific options. Evidence-weighing must be left to the agency making the policy decision. Citation omitted.

562 F.2d at 1383. Tempering this review a court is to be

governed by the "rule of reason," under which an EIS need not be exhaustive to the point of discussing all possible details bearing on the proposed action but will be upheld as adequate if it has been compiled in good

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