Citizens for Responsible Area Growth v. Adams

• Decision Date: 23 August 1979
• Docket Number: Civ. A. No. 79-61.
• Citation: 477 F. Supp. 994
• Parties: CITIZENS FOR RESPONSIBLE AREA GROWTH (CRAG), Plaintiff, and the State of Vermont, Plaintiff-Intervenor, v. Brock ADAMS, Secretary of Transportation, Langhorne M. Bond, Administrator, Federal Aviation Administration, Gerald D. Curtin, Chief, Airports Division, Regional Office of the Federal Aviation Administration, Robert Bergland, Secretary of Agriculture, Gordon Cavanaugh, Administrator, Farmers' Home Administration, Brian Burns, State Director of the Farmers' Home Administration for New Hampshire and Vermont, Juanita Kreps, Secretary of Commerce, Robert Hall, Assistant Secretary for Economic Development, John E. Corrigan, Regional Director of the Economic Development Administration, the City of Lebanon, New Hampshire, Allen Perkins, Jr., in his capacity as Lebanon City Manager, the Lebanon Regional Airport Authority, Michael Donovan, in his capacity as Lebanon Regional Airport Manager, Defendants, and the State of New Hampshire, New England Legal Foundation, Defendants-Intervenors.
• Court: U.S. District Court — District of New Hampshire

477 F. Supp. 994

CITIZENS FOR RESPONSIBLE AREA GROWTH (CRAG), Plaintiff and the State of Vermont, Plaintiff-Intervenor, v. Brock ADAMS, Secretary of Transportation, Langhorne M. Bond, Administrator, Federal Aviation Administration, Gerald D. Curtin, Chief, Airports Division, Regional Office of the Federal Aviation Administration, Robert Bergland, Secretary of Agriculture, Gordon Cavanaugh, Administrator, Farmers' Home Administration, Brian Burns, State Director of the Farmers' Home Administration for New Hampshire and Vermont, Juanita Kreps, Secretary of Commerce, Robert Hall, Assistant Secretary for Economic Development, John E. Corrigan, Regional Director of the Economic Development Administration, the City of Lebanon, New Hampshire, Allen Perkins, Jr., in his capacity as Lebanon City Manager, the Lebanon Regional Airport Authority, Michael Donovan, in his capacity as Lebanon Regional Airport Manager, Defendants and the State of New Hampshire, New England Legal Foundation, Defendants-Intervenors.

Civ. A. No. 79-61.

United States District Court, D. New Hampshire.

August 23, 1979.

COPYRIGHT MATERIAL OMITTED

O'Neill, Backus, Spielman by Robert A. Backus, Manchester, N. H., Peter R. Teachout, South Royalton, Vt., for plaintiff.

M. Jerome Diamond, Atty. Gen., William E. Griffin, Asst. Atty. Gen., Atty. General's Office, State of Vermont, Montpelier, Vt., for State of Vermont, plaintiff-intervenor.

Brown & Nixon by Stanley M. Brown, Manchester, N. H., R. Peter DeCato, City Atty., Lebanon, N. H., for Lebanon defendants.

William H. Shaheen, U. S. Atty., Concord, N. H., for Federal defendants.

Robert R. Ruddock, Boston, Mass., Boston, Mass., for defendant intervenor New England Legal Foundation.

Steven J. McAuliffe, Asst. Atty. Gen., Concord, N. H., for defendant-intervenor State of New Hampshire.

OPINION

ZOBEL, District Judge.

Plaintiffs are a nonprofit environmentalist corporation, consisting of New Hampshire and Vermont residents, and the State of Vermont. They seek injunctive and declaratory relief, alleging that construction at and near Lebanon (New Hampshire) Regional Airport is being undertaken by the defendants in violation of federal law. Defendants are various municipal, state and federal agencies and officials. While the complaint states a number of claims,¹ the parties have agreed that the only issues to be considered by the court with regard to the preliminary relief sought are compliance with Section 102(2)(C) of the National Environmental Policy Act of 1969 ("NEPA"), 83 Stat. 852, 42 U.S.C. § 4332(2)(C), and provisions of the Federal Airport and Airway Development Act of 1970 ("Airway Development Act"), 84 Stat. 219, 49 U.S.C. §§ 1701, et seq. Jurisdiction is conferred upon this Court by 28 U.S.C. § 1331.

THE FACTS

The parties agree to certain facts. In 1978 and 1979 the Defendant City of Lebanon ("Lebanon") submitted to three federal agencies, Farmers Home Administration ("FmHA"), the Economic Development Administration ("EDA") and the Federal Aviation Administration ("FAA"), "preapplications" and applications for grant and loan monies to fund various construction and improvement proposals at and near the City's regional airport.² The proposals are at various stages of completion. Construction of the airport parking lot access roads, taxiways and underground utilities had been completed prior to the initiation of this action. The construction of the terminal building and related utilities is underway. An extension of the access road and underground utilities to the contemplated industrial park, as well as the runway extension, are in the design or bidding stage.

Two of the Federal agencies, EDA and FmHA, have approved the grant applications. They have also determined that the provisions of NEPA do not require preparation of an environmental impact statement ("EIS"). The third agency, FAA, has not as yet allocated the funds for which Lebanon has applied, as the 45-day comment period on its proposed findings had not at the time of the hearing in this case elapsed. A recent communication to the City, however, suggests that approval of the grant is imminent. The FAA's proposed "Negative Declaration" concludes that an EIS is not required. Further, the agency contends that a hearing conducted on May 17, 1978 in Lebanon satisfies the public hearing requirement of the Airway Development Act. The FAA, thus, finds no obstacle to the approval of the grant as quickly as possible, and all defendants have proceeded upon the premise that the FAA will presently adopt its proposed findings insofar as NEPA and the Airway Development Act are concerned.

Disputed facts liven this bare outline of grant awards and final agency pronouncements. Plaintiffs suggest that the three federal grants are related to one another, to an earlier phase³ of the Airport development, and to an ultimate expansion of the industrial park from the initial 50 to 260 acres. Plaintiffs see a comprehensive air terminal-industrial park development program. Defendants instead see three independent projects. They acknowledge long-range consideration of the air park expansion but characterize expansion beyond the 50 acre proposal as nothing more than a possibility.

Defendants' current appraisal of the unrelatedness of their various proposals and of the tentativeness of park expansion represents a recent change of position. Earlier agency pronouncements clearly reached opposite "threshold" conclusions with respect to the integrity of the work to be done and to the need for an EIS. Mr. Weedon Parris, the lone FAA representative at the public hearing of May 17, 1978, announced that "the Environmental Impact Statement will be prepared by my agency, the Federal Aviation Administration." Correspondence of November 22, 1978 from the EDA's Regional Director, John Corrigan, to Lebanon's City Manager, Allen Perkins, advised "it is our conclusion that the preparation of an environmental impact statement is required." These conclusions were summarily reversed at a private conference on December 7, 1978 apparently at the insistence of Congressman James C. Cleveland. No public announcements, let alone public hearings, preceded the reversal of the agencies' previously stated positions. Indeed, some concerned citizens requested permission to attend the conference but were refused.

I find that the various projects are related and that the ultimate expansion of the industrial park is clearly contemplated. The integrity of the grant proposals and of the park expansion has been considered by the defendants in the construction that has already taken place and has been provided for in the grants now before the court.

THE LAW

The motion for preliminary injunction rests on two distinct claims. The first is that agency decisions to forgo preparation of an EIS violated NEPA. The second is that the FAA-sponsored hearing of May 17, 1978 in Lebanon did not satisfy the requirements of the Airport Development Act. The two claims are discussed in turn.

I. National Environmental Policy Act of 1969 ("NEPA")

Section 102(2)(C) of NEPA provides as follows:

The Congress authorizes and directs that, to the fullest extent possible: . . (2) all agencies of the Federal Government shall—

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on environmental impact. 42 U.S.C. § 4332(2)(C).

Section 102(2)(C) creates a specific duty for federal agencies. The statute demands compliance "to the fullest extent possible", a command "neither accidental nor hyperbolic". Flint Ridge Dev. Co. v. Scenic River Ass'n., 426 U.S. 776, 787, 96 S.Ct. 2430, 49 L.Ed.2d 205 (1976). The EIS requirement has been hallowed in federal courts by years of repeated enforcement⁴ and by dramatic statements of purpose.⁵

In its most recent term, the Supreme Court reviewed § 102(2)(C), its legislative history, and applicable federal regulations. The Court delivered an unambiguous assessment of the significance of an EIS:

The thrust of § 102(2)(C) is thus that environmental concerns be integrated into the very process of agency decision-making. The `detailed statement' it requires is the outward sign that environmental values and consequences have been considered during the planning stage of agency actions. If environmental concerns are not interwoven into the fabric of agency planning, the `action-forcing' characteristics of § 102(2)(C) would be lost. `In the past, environmental factors have frequently been ignored and omitted from consideration in the early stages of planning . . .. As a result, unless the results of planning are radically reversed at the policy level — and this often means the Congress — environmental enhancement opportunities may be foregone and unnecessary degradation incurred.' S.Rep.No. 91-296, . . . at 20. For this reason the regulations of the Council on Environmental Quality (CEQ) require federal agencies to `integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values . . ..' 43 Fed.Reg. 55992 (1978) (to be codified, at 40 CFR § 1501.2). Andrus v. Sierra Club, ___ U.S. ___, ___, 99 S.Ct. 2335, 2337, 2338, 60 L.Ed.2d 943 (1979) (footnotes omitted).

Section 102(2)(C) of NEPA provides a mandate of uncommon clarity. As the Court observed in Andrus v. Sierra Club, supra, the EIS requirement effects NEPA's express purpose to imbed an early formal consideration of environmental impacts in all major agency decisions. As a practical matter, a threshold decision not to prepare an EIS may represent the last comprehensive environmental consideration a project receives. It is certainly the last opportunity for other agencies and the public to challenge the formal adequacy of environmental planning. The threshold determination, thus, is of...