Concerned Citizens on I-190 v. Secretary of Transp.

Citation641 F.2d 1
Decision Date09 February 1981
Docket Number80-1498,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.
CourtUnited 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. *

COFFIN, Chief 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:

"First, it permits the court to ascertain whether the agency has made a good faith effort to take into account the values NEPA seeks to safeguard .... Second, it serves as an environmental full disclosure law, providing information which Congress thought the public should have concerning the particular environmental costs involved in a project .... Finally, and perhaps most substantively, the requirement of a detailed statement helps insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug". 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) (NEPA's "mandate to the agencies is essentially procedural"); 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 ("administrative decisions should be set aside in this context, as in every other, only for substantial procedural or substantive reasons as mandated by statute."). 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 Wachusett Reservoir and its feeder streams are the dominant natural environmental feature of the wide corridor, since they are a major terminal for metropolitan Boston's basic water supply. The reservoir has two basic functions: first, it stores and conveys high quality water; second, it plays a role in the natural treatment of waters prior to final distribution...."

"In terms of water pollution, potential impacts can be caused by the highway construction, operation and maintenance. The potential significant adverse impacts of the proposed expressway on Wachusett Reservoir and its tributaries, and thus potential adverse impacts on the metropolitan Boston's water supply, have caused great concern to the engineers, environmentalists, and others closely associated with the proposed project...."

"The most significant unavoidable detrimental impacts on human beings are the potential effects that the proposed expressway could have upon the quality of water in Wachusett Reservoir...."

"... (M)ost waters within the wide corridor area ultimately drain into either Wachusett Reservoir, which is of major importance as the public water supply of over three dozen cities and towns of metropolitan Boston; or the Nashua River, which has to be considered a major aquatic resource of central Massachusetts in spite of current heavy pollution of that river. Because of the diversity of aquatic resources included within the wide corridor area and because of the various uses to which these individual resources are put, the question of water quality is extremely complex...."

"There is a high probability that both alternatives of the proposed ... expressway would lower the quality of water in the Wachusett Reservoir, its tributaries and/or the Nashua River tributaries. Note here that a high probability does not necessarily imply a major impact; i. e., the maximum predicted chloride concentrations are still well below U. S. Public Health standards...."

"The water from Wachusett Reservoir is treated only by chlorination at present. A possible impact from the highway could be interference with present and future treatment processes. Turbidities at present in the reservoir are of levels just below those that interfere with chlorination. Any increase in turbidity could make disinfection with chlorine impractical unless treatment to remove turbidity were instituted."

The following excerpts are representative of discussions of turbidity in the EIS directed to the ways in which it...

To continue reading

Request your trial
36 cases
  • County of Bergen v. Dole
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • October 10, 1985
    ...the state of the art do not render a previously prepared environmental document legally deficient. Concerned Citizens on I-190 v. Secretary of Transportation, 641 F.2d 1, 6 (1st Cir.1981). In my findings of fact on plaintiffs' claim regarding redrafting of the DEIS supra, I have already lis......
  • United States Public Interest Research Group v. Stolt Sea Farm Inc., Civil No. 00-149-B-C (D. Me. 2/19/2002), Civil No. 00-149-B-C.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • February 19, 2002
    ...Inc. v. Pierce, 667 F.2d 851, 854 (9th Cir. 1982)). Stolt relies on the First Circuit decision in Concerned Citizen on I-190 v. Sec'y of Transp., 641 F.2d 1 (1st Cir. 1981), to support its defense. However, this decision was not made in the context of a citizen suit under the Clean Water Ac......
  • Coalition On Sensible Transp. Inc. v. Dole, Civ. A. No. 85-2759.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • July 24, 1986
    ...I-270 project planners were justified in acceding to the preferences of those local authorities. Cf. Concerned Citizens of I-190 v. Secretary of Transportation, 641 F.2d 1, 7 (1st Cir.1981); National Wildlife Federation v. Coleman, 529 F.2d 359, 369 (5th Cir.1976); Pennsylvania Environmenta......
  • State of Wis. v. Weinberger, 84-1569
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 20, 1984
    ...soft-pedal relevant information and to comply with NEPA only on paper will simply be too strong. Cf. Concerned Citizens on I-190 v. Secretary of Transportation, 641 F.2d 1, 6 (1st Cir.1981) (requiring a supplemental EIS when agency modifies plan so as to mitigate environmental harm would de......
  • Request a trial to view additional results
2 books & journal articles
  • CHAPTER 6 SUPPLEMENTAL NEPA ANALYSES: TRIGGERS AND REQUIREMENTS
    • United States
    • FNREL - Special Institute National Environmental Policy Act (FNREL)
    • Invalid date
    ...supra note 39, at 38. [84] See, e.g., Nat'l Indian Youth Council, 664 F.2d at 225; see also Concerned Citizens on I-90 v. Sec'y of Transp., 641 F.2d 1, 6 (1st Cir. 1981) (changes in regulations that improved mitigation measures did not require a SEIS). However, legal changes may create new ......
  • CHAPTER 9 NEPA APPEALS AND LITIGATION: JURISDICTION AND PROCEDURAL ISSUES1
    • United States
    • FNREL - Special Institute NEPA and Federal Land Development (FNREL)
    • Invalid date
    ...equitable relief after carefully weighing these factors. Id. at 104. In Concerned Citizens on I-190 v. Secretary of Transportation, 641 F.2d 1, 7-8 (1st Cir. 1981), plaintiffs sought to enjoin further construction of a federal highway. They "originally commenced their action on October 3, 1......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT