Concerned Citizens on I-190 v. Secretary of Transp.
Citation | 641 F.2d 1 |
Decision Date | 09 February 1981 |
Docket Number | 80-1498,I-190,Nos. 80-1497,s. 80-1497 |
Parties | , 11 Envtl. L. Rep. 20,087 CONCERNED CITIZENS ONet al., Appellants, v. SECRETARY OF TRANSPORTATION et al., Appellees. |
Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
David F. Cavers, Jr., Boston, Mass., with whom Katherine Hendricks, Stephen D. Anderson and Palmer & Dodge, Boston, Mass., were on brief, for appellants.
Charles K. Mone, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee U. S. Secretary of Transp.
Francis X. Bellotti, Atty. Gen., Edward F. Vena, Sp. Asst. Atty. Gen. and Gadsby & Hannah, Boston, Mass., on brief, for appellees Commissioner of the Massachusetts Dept. of Public Works and the Massachusetts Dept. of Public Works.
Before COFFIN, Chief Judge, BOWNES, Circuit Judge, HOFFMAN, Senior District Judge. *
This action was brought for declaratory and injunctive relief against further construction of a portion of Interstate 190, a federally-financed highway connector running through central Massachusetts from Worcester to Leominster. Appellants assert that three procedural prerequisites to completion of the project have not been adequately complied with: the preparation of an Environmental Impact Statement (EIS), the holding of public hearings, and the determination whether lands to be used for the construction constitute significant recreation land. The applicable statutes are 42 U.S.C. § 4332(2) (C), 23 U.S.C. § 128(a), and 49 U.S.C. § 1653(f), respectively. We are convinced that appellants have not demonstrated a probability of success as to any claimed procedural default, and we affirm the district court's denial of a preliminary injunction.
Plaintiffs-appellants in this action are Concerned Citizens on I-190, an unincorporated association, and six named individual members of that association (hereafter collectively "appellants"). Defendants-appellees are the United States Secretary of Transportation and an official of the Federal Highway Administration ("the federal defendants") and the Massachusetts Department of Public Works and its Commissioner ("the state defendants"). Appellants originally commenced their action on October 3, 1974, shortly after publication of the final EIS for the project; because their counsel withdrew from the case shortly thereafter, the case fell into desuetude until January 1980.
Appellants' principal attack is directed at the EIS prepared for the project, which they claim fails to take sufficient account of the danger to the metropolitan Boston drinking water supply posed by three distinct elements of the project: construction of the relevant portions of the highway itself, secondary development brought on by the opening of the highway, and design changes and mitigation measures instituted subsequent to the promulgation of the final EIS. Appellants assert that "a potentially catastrophic circumstance the possible loss of the drinking water of nearly two million people was 'swept under the rug' ... and out of public view." The possibility of this catastrophe derives from the fact that 9.9 of I-190's 19 miles would go through the Wachusett Reservoir Watershed, a man-made reservoir which supplies approximately 40 percent of the drinking water serving metropolitan Boston, and through which flows the water from the Quabbin Reservoir supplying the other 60 percent. In particular, two sections of this 9.9 mile stretch would cross two of the Wachusett Reservoir's principal tributaries, the Quinapoxet River and the Stillwater River. The environmental danger posed by this construction is that erosion from adjacent banks will result in the deposit of sediment in the reservoir's tributaries and ultimately in the reservoir itself, leading to increased turbidity. Water flowing from the Wachusett is not subsequently filtered, but only chlorinated, and an increase in turbidity could impair the efficacy of such chlorination.
Appellants do not dispute that the EIS explicitly addressed this problem; they argue, however, that its discussion is "attenuated and equivocal." Appellees, of course, maintain that the EIS discusses the pertinent issues "candidly and frankly". To resolve this conflict we must first look to the purposes of Environmental Impact Statements and to the standards to be applied in reviewing their adequacy. We have observed that such a statement serves at least three purposes:
. Silva v. Lynn, 482 F.2d 1284-85 (1st Cir. 1973) (citations omitted).
Cf. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978) ( ); see also Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068 (1st Cir. 1980).
In determining whether these ends have been attained in a particular case, we inquire "whether the agency's findings and conclusions in the EIS are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and whether the agency followed the procedures required by law." Silva v. Lynn, supra, 482 F.2d at 1284; see 5 U.S.C. § 706; cf. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, supra, 435 U.S. at 558, 98 S.Ct. at 1219 (). We have recognized the limited scope of our review of a district court ruling concerning the adequacy of an EIS:
"Our role is not to substitute our judgment for that of the district court, but simply to see if the court avoided clear error in its determination of whether the EIS was compiled with objective good faith and whether the resulting statement would permit a decisionmaker to fully consider and balance the environmental factors." Cummington Preservation Comm. v. Federal Aviation Adm., 524 F.2d 241, 243 (1st Cir. 1975) (citation omitted).
Finally, we employ a "rule of reason" in deciding whether an agency has adequately considered the environmental consequences of a proposed action. Commonwealth of Mass. v. Andrus, 594 F.2d 872, 884 (1st Cir. 1978).
Applying these principles to the case before us, we conclude that the EIS adequately discusses each of the three sources of potential danger to the metropolitan Boston water supply. The most important of these, of course, is the possibility of increased turbidity resulting from highway construction itself. This danger is explicitly addressed at numerous points in the EIS; several of these discuss the source and magnitude of the danger, while others focus on possible mitigation measures. Because these passages are of such central importance to our decision, we reproduce a number of them below, beginning with some of those that describe the danger posed:
The following excerpts are representative of discussions of turbidity in the EIS directed to the ways in which it...
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