Eastern Connecticut Citizens Action Group v. Dole

• Decision Date: 21 July 1986
• Docket Number: Civ. No. H-86-286(JAC).
• Court: U.S. District Court — District of Connecticut
• Parties: EASTERN CONNECTICUT CITIZENS ACTION GROUP, et al. v. Elizabeth H. DOLE, et al.

638 F. Supp. 1297

EASTERN CONNECTICUT CITIZENS ACTION GROUP, et al. v. Elizabeth H. DOLE, et al.

Civ. No. H-86-286(JAC).

United States District Court, D. Connecticut.

July 21, 1986.

Jon D. Berman, Windsor, Conn., for plaintiffs.

John B. Hughes, New Haven, Conn., for Federal defendants.

Cornelius F. Tuohy, Kathryn Mobley, Robert T. Morrin, Hartford, Conn., for State defendant.

John F. McKenna, Hartford, Conn., for amici curiae Town of Windham, Town of Manchester and Greater Manchester Chamber of Commerce.

RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

JOSE A. CABRANES, District Judge:

This action to enjoin the construction of a proposed four-lane expressway, known as "Relocated Route 6," between the eastern Connecticut towns of Bolton and Windham is before the court on cross-motions for summary judgment.

The plaintiffs in this action are the Eastern Connecticut Citizens Action Group, Inc. and Stop I-84, Inc., both of which claim to be non-profit membership corporations, and 38 individuals who claim to own property that will be taken or diminished in value as a result of the construction of Relocated Route 6. The defendants are Elizabeth H. Dole, secretary of the United States Department of Transportation ("DOT"); John Bestgen, regional administrator for the Federal Highway Administration ("FHWA"); James J. Barakos, division administrator of the FHWA for Connecticut; and J. William Burns, commissioner of the Connecticut Department of Transportation ("ConnDOT").

The plaintiffs contend that the defendants have failed (1) to consider alternatives to the Relocated Route 6 proposal in violation of Section 102(2)(C) of the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.; (2) to prepare a new or supplemental environmental impact statement in violation of NEPA and the regulations promulgated thereunder; (3) to comply with NEPA and the relevant regulations in preparing an environmental assessment/re-evaluation/section 4(f) statement; (4) to comply with Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 1651 et seq., and the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq., in evaluating the impact of the proposed highway on public parklands, state forests and historic sites; (5) to comply with federal regulations governing the submission of concept plans pursuant to 23 U.S.C. § 103(e)(4); and (6) to consider alternatives to the impact of the proposed highway on wetlands in violation of DOT Order 5610.1B and Presidential Order 11190. The plaintiffs also contend that the defendant Burns will deprive them of property rights without due process of law by proceeding with right-of-way acquisitions before obtaining a permit for the proposed highway from the United States Army Corps of Engineers ("Corps of Engineers") pursuant to Section 404 of the Clean Water Act, 33 U.S.C. § 1344.

The plaintiffs seek a declaratory judgment that the defendants failed to comply with the federal environmental laws as well as a preliminary and permanent injunction against further financing, disbursement of funds, planning, acquisition of land, contracting for or construction of the proposed Relocated Route 6. They also seek an order directing the defendants to rescind their approval of property acquisitions, designs for the proposed highway and the final environmental impact statement with respect to the proposed highway.

Discussion

The defendants contend in support of their motion for summary judgment that the plaintiffs' claims are not ripe for judicial review because there has been no "final" administrative action that would permit the construction of the proposed highway.

Section 10(c) of the Administrative Procedure Act, 5 U.S.C. § 704, provides, with certain exceptions not relevant here, that only "final agency action" is subject to judicial review. The finality requirement of Section 10(c) is to be interpreted in "a pragmatic way," Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967), "with an eye toward protecting agencies from the disruption of piecemeal appeals and toward insuring that judicial review involves concrete disputes over meaningful interests, rather than abstract disputes over hypothetical governmental actions." National Wildlife Federation v. Goldschmidt, 677 F.2d 259, 263 (2d Cir.1982), aff'g 504 F.Supp. 314 (D.Conn.1980).

In determining whether an action ought to be dismissed on ripeness grounds, the court must "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, supra, 387 U.S. at 148-149, 87 S.Ct. at 1515. Moreover, any such hardship must be "immediate and practical," Frozen Food Express v. United States, 351 U.S. 40, 44, 76 S.Ct. 569, 571, 100 L.Ed. 910 (1956), rather than remote and speculative. See also Diamond Shamrock Corporation v. Costle, 580 F.2d 670, 672 (D.C.Cir.1978) ("what is required is that the interests of the court and agency in postponing review until the question arises in some more concrete and final form, be outweighed by the interest of those who seek relief from the challenged action's `immediate and practical impact' upon them").

The requirement of finality has frequently been applied in actions seeking to enjoin the construction of highways on environmental grounds. See National Wildlife Federation v. Goldschmidt, supra, 504 F.Supp. at 323 and cases cited therein. As our Court of Appeals has observed, "the circumstances in which agency actions involving environmental concerns and highway construction are reviewable cannot be spelled out in exact detail." National Wildlife Federation v. Goldschmidt, supra, 677 F.2d at 264. Instead, a court must take a "common sense" approach to the question of finality. Id. Accordingly, the court turns to an examination of the facts of the instant case.

1. The fitness of the issues for judicial decision

It is not disputed that the DOT has approved a so-called "final environmental impact statement" and a subsequent "environmental assessment" with respect to the proposed highway.¹ See Complaint ¶ 54; Affidavit of James F. Byrnes, Jr. (filed June 23, 1986) ("Byrnes Affidavit") ¶ 5. It is likewise not disputed that construction of Relocated Route 6 cannot commence until ConnDOT obtains permits from the various state and federal agencies that still must evaluate the environmental implications of the proposed highway. See Byrnes Affidavit ¶ 6. These agencies include the Corps of Engineers and the Connecticut Department of Environmental Protection.² See id. at ¶¶ 7-9; see also Complaint ¶¶ 93-95, 101.

Indeed, the plaintiffs anticipate that the Corps of Engineers will hold a public hearing before deciding whether to issue any permit for the construction of the highway pursuant to Section 404 of the Clean Water Act, 33 U.S.C. § 1344. See Complaint ¶ 97. They expect to take part in the permit process "including participation at any public hearing held by the Corps." Id. ¶ 98.

It is evident that the environmental impact statement and environmental assessment may have to be revised, or that the plans for the highway may have to be altered or even abandoned, as a result of the evaluations that still must be undertaken by the Corps of Engineers and the Department of Environmental Protection. See id. ¶ 96. Indeed, the plaintiffs state in their complaint that "the Corps has indicated that with respect to the Section 404 permit, `a more detailed alternative discussion will be required.'" Id. ¶ 99, quoting correspondence of William F. Lawless, chief of the regulatory branch of the Corps of Engineers. Counsel for the federal defendants likewise indicated at oral argument on July 11, 1986, that the Corps of Engineers is likely to require supplementation of the environmental impact statement and environmental assessment.

Accordingly, in light of this undisputed evidence, the court finds that the issues raised by the plaintiffs are not yet fit for judicial decision.

2. The hardship to the parties of withholding court consideration

The defendants have repeatedly emphasized in their papers and at oral argument that no construction work will begin on the proposed highway until the necessary permits have been obtained from the Corps of Engineers and the Department of Environmental Protection. See, e.g., Byrnes Affidavit ¶¶ 6, 10. Accordingly, a decision by the court to defer consideration of the plaintiffs' claims until the highway proposal has been evaluated by those agencies would not "significantly affect the quality of...