Concerned Citizens of Marlboro v. Volpe, 72-1012.

• Decision Date: 28 April 1972
• Docket Number: No. 72-1012.,72-1012.
• Citation: 459 F.2d 332
• Parties: CONCERNED CITIZENS OF MARLBORO et al., Appellants, v. John VOLPE, individually and in his official capacity as Secretary of Transportation of the United States, et al.
• Court: U.S. Court of Appeals — Third Circuit

459 F.2d 332 (1972)

CONCERNED CITIZENS OF MARLBORO et al., Appellants, v. John VOLPE, individually and in his official capacity as Secretary of Transportation of the United States, et al.

No. 72-1012.

United States Court of Appeals, Third Circuit.

Argued March 23, 1972.

Decided April 28, 1972.

Paula Roberts, Ball, Broege, & Fogel, Newark, N. J., for appellants.

Alfred L. Nardelli, Deputy Atty. Gen., Trenton, N. J., for appellee Kohl.

Richard W. Hill, Asst. U.S. Atty., Newark, N. J., for appellee Volpe.

Theodore W. Geiser, Hughes, McElroy, Connell, Foley & Geiser, Newark, N. J., for appellees Hess Bros., and others.

Before SEITZ, Chief Judge, and ADAMS and HUNTER, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

This is an appeal from an order of the district court denying plaintiffs' application for injunctive relief and dismissing their complaint.

Plaintiffs are Concerned Citizens of Marlboro, Inc. and Sylvia Lauer and Arnold Katz, individually. They filed this action to enjoin defendants John Volpe, United States Secretary of Transportation, and John Kohl, Secretary of Transportation, for the State of New Jersey, from continuing highway construction extending New Jersey Route 18. Defendants Hess Brothers, Inc. and Diversified Road, Bridge & Tunnel Company were granted leave to intervene after the complaint was filed.

The New Jersey Department of Transportation first conceived of the Route 18 extension in early 1960 and notified the Federal Highway Administration of the proposed construction. A public hearing on the plans was held on March 4, 1964. On June 2, 1964 the Bureau of Public Roads approved the road alignment and on August 26 of that year the State received approval of its plans from the Federal Highway Administration. The State was authorized to proceed with the purchase of the necessary right-of-way. Termed "Stage 1 approval," this authorization made the State eligible for Federal-Aid participation as funds became available once the State had requested "Stage 2 approval." In this case Stage 2 approval committed Federal-Aid funds toward the purchase of the right-of-way. It was not contemplated that federal funds would be committed at any time toward road construction. As found by the district court, Stage 2 approval was given on or about May 25, 1967.

Plaintiffs assert that in the current construction of Route 18 the defendants have failed to comply with certain provisions of both the Federal-Aid Highway Act FAHA, 23 U.S.C. §§ 101-136, and the National Environmental Policy Act NEPA, 42 U.S.C. § 4332. Specifically, they allege that the defendants did not: (1) consider noise and air pollution incident to the proposed construction as required by 23 U.S.C. § 109(a); (2) conduct a public hearing to consider the potential environmental impact of the project as required by 23 U.S.C. § 128(a); or (3) undertake the environmental impact study for submission to federal authorities mandated by the NEPA. Plaintiffs requested that the district court enjoin the various defendants from appropriating or spending further federal funds and from performing any further work with regard to the Route 18 extension until the proper authorities had conducted the appropriate public hearings, completed the required environmental studies and otherwise complied with the applicable requirements of both the FAHA and the NEPA. The district court denied plaintiffs' request and dismissed their complaint, concluding that: (1) defendants in fact had complied with all applicable provisions of the FAHA; and (2) the NEPA did not apply retroactively to the Route 18 project. This appeal followed.

Plaintiffs first contend that, regardless of the applicability of the NEPA or § 128(a) of the FAHA to the Route 18 construction, § 109(a) of Title 23 was applicable and did require at least limited consideration by the Secretary of Transportation of environmental changes incident to the proposed extension. Section 109(a) was enacted prior to the Secretary's approval of the Route 18 project. It provides that:

"The Secretary shall not approve plans and specifications for proposed projects on any Federal-Aid system if they fail to provide for a facility (1) that will adequately meet the existing and probable future traffic needs and conditions in a manner conducive to safety, durability, and economy of maintenance; and (2) that will be designed and constructed in accordance with standards best suited to accomplish the foregoing objectives and to conform to the particular needs of each locality."

Plaintiffs' contention is that the reference in this provision to "safety" mandated that the Secretary not approve the Route 18 construction without considering the extent to which noise and air pollution would increase as a result of that project. At the time § 109 was enacted, however, air and noise pollution were not considerations within its intended scope. To interpret the section as plaintiffs suggest would be unreasonable, especially when it is recognized that Congress amended § 109 in 1970 specifically to add "air, noise and water pollution" as factors to be studied before federal approval could be given to projects thereafter proposed. See P.L. 91-605 (Dec....