Essex County Preservation Ass'n v. Campbell, 75-1392

• Decision Date: 18 June 1976
• Docket Number: No. 75-1392,75-1392
• Citation: 536 F.2d 956
• Parties: , 6 Envtl. L. Rep. 20,577 ESSEX COUNTY PRESERVATION ASSOCIATION on Behalf of itself and its members et al., Plaintiffs-Appellants, v. Bruce CAMPBELL, as Commissioner, Massachusetts Department of Public Works, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 956

536 F.2d 956

8 ERC 2156, 6 Envtl. L. Rep. 20,577

ESSEX COUNTY PRESERVATION ASSOCIATION on Behalf of itself and its members et al., Plaintiffs-Appellants, v. Bruce CAMPBELL, as Commissioner, Massachusetts Department of Public Works, et al., Defendants-Appellees.

No. 75-1392.

United States Court of Appeals First Circuit.

Argued March 3, 1976.

Decided June 18, 1976.

Haynes N. Johnson, Stamford, Conn., with whom Alphonse R. Noe, Stamford, Conn., and Thomas B. Arnold, Boston, Mass., were on brief, for plaintiffs-appellants.

Jacques B. Gelin, Atty., Dept. of Justice, Washington, D. C., with whom Peter R. Taft, Asst. Atty. Gen., Washington, D. C., James N. Gabriel, U. S. Atty., William A. Brown, Asst. U. S. Atty., Boston, Mass., and Raymond N. Zagone, Atty., Dept. of Justice, Washington, D. C., were on brief, for Federal defendants-appellees.

John J. Twomey, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., was on brief, for State defendants-appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

This appeal concerns the reconstruction and widening (from four to eight lanes) of a portion of Interstate Route 95 (I-95) within Massachusetts, north of Boston. Appellants, various groups of residents in certain of the counties and towns affected, sought to enjoin further work on the project. The district court denied the preliminary injunction, concluding that there was not a probability of success on the merits and that no irreparable harm would result from continued construction. Essex County Preservation Ass'n v. Campbell, 399 F.Supp. 208, 220 (D.Mass.1975).

The essential facts are clearly set forth in the opinion of the district court. A final Environmental Impact Statement (EIS) for the project was published in September, 1973 and approved by the United States Department of Transportation in January, 1974. ¹ The total project consists of 17 miles of highway and is subdivided into four separate contracts covering approximately equal lengths. The scheduled dates for completion of the four segments range from November 6, 1976, to July 30, 1977. As of the date of the district court's decision (June 25, 1975), the extent of completed construction ranged from 10 to 36 percent. Id. at 211.

Appellants urged three main issues to the district court and raise the same claims on appeal. First, they claim that the EIS for the expressway construction failed to meet the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. because it it was prepared by "a financially interested party." Specifically, appellants point to the fact that preparation of the EIS was delegated to the private consulting firm of Fay, Spofford and Thorndike which was also employed by the Commonwealth as the design engineer for two of the four segments of the highway project in question. Appellants contend that NEPA prohibits the responsible federal agency from delegating the preparation of an EIS, particularly when the preparer has a stake in the project's success. The district court agreed ruling that Fay, Spofford and Thorndike's preparation of the EIS was improper under the circumstances.

This issue actually involves two separate questions: whether under NEPA the federal agency, in this instance the Federal Highway Administration (FHWA), had an exclusive nondelegable duty to prepare the EIS, and if not, whether part of the task of formulating the EIS could be carried out by a consulting firm otherwise involved in designing the highway project. With regard to the first issue, the district court properly noted that a number of circuits have held that the responsibility for preparing an EIS may be delegated to state agencies provided that there is "significant federal participation." See, e. g., Fayetteville Area Chamber of Commerce v. Volpe,515 F.2d 1021, 1024-25 (4th Cir. 1975); Sierra Club v. Lynn, 502 F.2d 43, 59 (5th Cir. 1974), cert. denied, 421 U.S. 994, 95 S.Ct. 2001, 44 L.Ed.2d 484 (1975); Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 853-55 (8th Cir. 1973); Life of the Land v. Brinegar, 485 F.2d 460, 467 (9th Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.2d 312 (1974); Citizens Environmental Council v. Volpe, 484 F.2d 870, 873 (10th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1974). Nevertheless the court placed considerable weight on Conservation Society of Southern Vermont, Inc. v. Sec'y of Transportation, 508 F.2d 927 (2d Cir. 1974) which held that the FHWA cannot delegate EIS preparation. During the pendency of the present appeal, however, this decision was vacated by the Supreme Court for reconsideration in light of Pub.L. No. 94-83 which added a new section 102(2)(D) to NEPA. ² On remand the second circuit reversed its previous decision and held that "(u) nder the law as amended the state agency may prepare the EIS provided the federal agency 'furnishes guidance and participates in such preparation' and provided 'the responsible Federal official independently evaluates such statement prior to its approval and adoption.' " Conservation Society of Southern Vermont, Inc. v. Sec'y of Transportation, 531 F.2d 637, 639 (2d Cir. 1976). ³ We agree that under such circumstances the federal agency's obligation to prepare the EIS may be delegated to the state.

With regard to the reliance on the efforts of Fay, Spofford and Thorndike, we do not think the EIS was necessarily fatally undermined by their direct participation. See Sierra Club v. Lynn, supra at 59. As the district court noted, private consulting firms that are involved in a construction project have been permitted to participate in drafting the EIS on the same project. Life of the Land v. Brinegar, supra at 467-68; see Sierra Club v. Lynn, supra at 59-60. But see Greene County Planning Bd. v. Federal Power Comm'n, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731, 741 (D.Conn.1972), aff'd sub nom., Citizens for Balanced Environment and Transportation v. Volpe, 503 F.2d 601 (2d Cir. 1974), cert. denied, 423 U.S. 870, 96 S.Ct. 135, 46 L.Ed.2d 100, 44 U.S.L.W. 3205 (1975).

We must stress that when project consultants are also used in preparation of the EIS considerable caution should be exercised by the federal agency. The agency clearly may not substitute a private firm's efforts and analysis for its own, and it must bear responsibility for the ultimate work product designed to satisfy the requirement of 42 U.S.C. § 4332(2)(C). Under the circumstances of the instant case, however, we find no departure from these requirements. As noted by the district court, Frederick H. Downs, who was Chairman of the Environmental Committee within the FHWA's Boston division, and who approved the award of the EIS contract to Fay, Spofford and Thorndike, testified that "there was a tremendous amount of input by FHWA." The consulting firm's preliminary draft of the EIS was reviewed by the FHWA Environmental Committee. The agency held a number of meetings with the firm and with the Massachusetts Department of Public Works to discuss the contents of the draft and the policy decisions it raised. The FHWA's Regional Office also reviewed the draft, and after the EIS was completed the Environmental Committee obtained comments from the various agencies involved, see Aberdeen & Rockfish Ry. Co. v. SCRAP, 422 U.S. 289, 321, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975), and these comments were also reviewed. Essex County Preservation Ass'n v. Campbell, supra at 213-14. While the district court noted that the FHWA relied solely on the consulting firm "to gather and collate the basic environmental data," the court specifically found "that there was considerable federal review, discussion, and revision of the EIS as it was being developed by Fay, Spofford and Thorndike." Id. at 214. In light of these circumstances we are forced to disagree with the conclusion of the district court that the EIS did not meet the procedural requirements of NEPA. The significant and active participation by the FHWA indicates that it did not abdicate its responsibility and precludes us from holding there was any improper or illegal delegation in this case. See Life of the Land v. Brinegar, supra at 468. ⁴

The second issue raised by appellants concerns the effect of a moratorium declared by Governor Francis Sargent on any extension of I-95 south of Route 128. The moratorium was announced in November, 1972, too late for inclusion in the draft version of the EIS which was circulated for comment to other agencies. Appellants contend that this moratorium was relevant to the reconstruction and widening of I-95 north of Route 128 at issue here, and that a supplemental EIS was required. Specifically, they note that the construction moratorium south of Route 128 into Boston would affect the extent of traffic flow to the northern portion of I-95 and would therefore call into question the original estimates relied on to justify the highway's expansion from four to eight lanes. Appellants also stress that this issue was never exposed to the type of analysis and public comment envisaged by NEPA.

The district court noted that applicable federal highway regulations called for a supplemental EIS when there was a "new or changed environmental effect of significance to the quality of the environment." ⁵ Essex County Preservation Ass'n v. Campbell supra at 215. While declining to decide whether the Sargent moratorium actually would have such an environmental impact, the court held that a supplemental EIS had to be prepared in order to effectuate the basic aims of NEPA which favor disclosure of all relevant factors affecting agency decisions. See Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 697 (2d Cir. 1972). We are inclined to agree with this...