Grazing Fields Farm v. Goldschmidt, 80-1076

• Decision Date: 25 June 1980
• Docket Number: No. 80-1076,80-1076
• Citation: 626 F.2d 1068
• Parties: , 10 Envtl. L. Rep. 20,533 GRAZING FIELDS FARM et al., Plaintiffs, Appellants, v. Neil GOLDSCHMIDT et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 1068

626 F.2d 1068

14 ERC 1785, 10 Envtl. L. Rep. 20,533

GRAZING FIELDS FARM et al., Plaintiffs, Appellants, v. Neil GOLDSCHMIDT et al., Defendants, Appellees.

No. 80-1076.

United States Court of Appeals First Circuit.

Argued April 8, 1980.

Decided June 25, 1980.

Gregor I. McGregor, Boston, Mass., for plaintiffs, appellants.

Marianne B. Bowler, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for Federal defendant, appellee.

William A. Brown, Sp. Asst. Atty. Gen., Boston, Mass., for State defendants, appellees.

Douglas I. Foy, Boston, Mass., and Frederick Small, Cambridge, Mass., on brief for Conservation Law Foundation of New England, Inc., amicus curiae.

Michael P. Last, Susan M. Cooke, and Harlan M. Doliner, Boston, Mass., on brief, for Environmental Committee of The Boston Bar Association, amicus curiae.

Before COFFIN, Chief Judge, ALDRICH and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

This appeal raises an elementary but important question about the requirement contained in the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2) (C)(iii), that a federal agency must prepare a detailed statement discussing alternatives to proposed agency action. The question is whether pertinent information found in the administrative record, but not incorporated in an environmental impact statement (EIS), may satisfy this statutory requirement in whole or in part. We hold that it cannot and reverse the contrary decision of the district court.

For purposes of this appeal, we can content ourselves with a brief statement of the facts. The need for highway expansion in the Buzzard's Bay area of Massachusetts has been evident for more than twenty years. Traffic congestion on the approaches to the Cape Cod Canal is severe; holiday motorists experience substantial delays in traveling to Cape Cod, and the town of Bourne is inundated with automobiles. Consultation among the Federal Highway Administration (FHWA), the Massachusetts Department of Public Works (DPW), and local officials resulted in a plan to extend Massachusetts Route 25 from its present terminus in Wareham to the Bourne Bridge crossing the canal, thereby bypassing the town of Bourne. The alignment chosen traverses Grazing Fields Farm, a 900 acre tract containing farmland, a wildlife sanctuary and a riding school. This alignment was chosen over two others, which did not impinge on the farm, after a public hearing in 1968. Further public meetings to discuss the environmental effect of the proposed highway were held at Bourne in 1972 and 1974. At the latter hearing, officials received comments on the Draft Environmental Impact Statement.

The family which owns Grazing Fields Farm, the Ingersolls, has, at least since 1975, attempted to convince federal and state officials that a different route across its property would be preferable because it would protect more fully the unique resources of the farm, while providing an adequate alignment for the highway. More specifically, the Ingersolls have contended that adoption of their suggested alternative, referred to by the parties as the upland alignment, would avoid serious interference with an 11 acre wetland, circumvent entirely the cultivated farmland, and better shelter these areas from road noise.

FHWA responded to this suggestion by directing its retained consulting engineering firm, C. E. Maguire, Inc., to study the proposed alternative. The Maguire study noted several advantages to the upland route, but found several disadvantages as well; namely, it would add nearly one half mile to the route and increase the angle of road curves. The increased length of the highway would increase both construction and user costs. These factors, along with apparent concern about the impact of the upland route on water well fields, led FHWA and DPW to reject the alternative alignment in March, 1976. The Ingersolls objected to this conclusion, and a meeting was held at the end of the month where federal, state and local officials, and the Ingersolls' representatives discussed further the upland alternative and possible compromises. At the close of the meeting, DPW reiterated its intention to proceed with the original route.

In April, 1977, DPW submitted the final EIS to FHWA for approval. The Ingersolls, still dissatisfied with the official decision, submitted, in September, 1977, their own expert's favorable analysis of the suggested alternative, which is referred to as the Laird report. Although neither DPW nor FHWA was persuaded by the Laird report, their administrative responses to it differed. The Massachusetts Secretary of Environmental Affairs directed DPW to prepare an Addendum to the final EIS considering generally the upland alignment and responding specifically to the Laird report. The state Addendum, which was published in August, 1978, concluded that the original route was preferable. While the Addendum satisfied Commonwealth law, it never became part of the federal EIS and, therefore, never received the wide circulation through the federal government and consequent comment that a federal supplemental EIS receives. See, e. g., 23 C.F.R. § 771.15 (1976) (FHWA).

FHWA, on the other hand, responded to the Laird report in a letter to its author in October, 1977, which merely repeated earlier objections to the upland alignment. The letter did not address the specific criticisms made in the new report. In February, 1978, FHWA approved the final EIS. Discussion of the proposed alternative route was contained in an appendix as a response to a comment by the Ingersolls' lawyer:

"Federal and State Officials reviewed an alternative alignment to proposed Route 25/28 with representatives of the Buzzards Bay Water District and Hope G. Ingersoll on March 31, 1976. This alternative was proposed because of its lesser impact to Grazing Fields Farm. However, due to its impact on nearby well fields, existing power lines, and extra takings required for the right of way, State and Federal officials rejected this alignment. By emphasizing the importance of the consensus expressed by the public at the last hearing in 1974, State and Federal Officials made clear their position to follow through with the alignment shown in the Draft Environmental Impact Statement."

Also included as a separate appendix was a description of the environmental and cultural attributes of Grazing Fields Farm, written by Tudor Ingersoll, which argued generally that public takings had damaged the farm.

The Ingersolls were not satisfied with the discussion of the upland alternative in the final EIS, ¹ and on August 31, 1979, joined by other interested parties, filed a complaint in the district court seeking a preliminary injunction and declaratory relief under NEPA and other federal statutes and regulations. FHWA and DPW filed answers in the autumn. A motion by plaintiffs for a preliminary injunction was superceded by cross-motions for summary judgment. After a hearing, the district court granted summary judgment to the state and federal defendants. The district court subsequently granted and then dissolved a stay pending appeal.

Our primary concern in this appeal is with the grounds the district court relied on in granting defendants' motion for summary judgment. After setting forth the pertinent facts and procedural history, the court summarized the principal contentions of the parties. Plaintiffs were seen to argue that the failure of FHWA to discuss the upland alternative with sufficient detail in the EIS rendered that EIS defective under NEPA. The court characterized plaintiffs' goal as merely to postpone construction of the highway until a supplemental EIS was prepared, which would discuss in appropriate detail the matters contained in the state Addendum. The defendants argued that review of the entire administrative record indicated that FHWA had thoroughly considered the Ingerolls' proposed alternative in good faith and had thereby complied with the goals of NEPA and rendered a decision neither arbitrary nor capricious within the meaning of the Administrative Procedure Act, 5 U.S.C. § 706. The district court, relying in part on Commonwealth of Massachusetts v. Andrus, 594 F.2d 872 (1st Cir. 1979), accepted the defendants' characterization of the issue:

"The question here is whether the decision to proceed with the construction of the selected alignment is supported by an adequate environmental impact statement and the administrative record. Stated differently, the question is whether the environmental impact statement and other documents associated with the decision to go forward with the selected alignment are deficient." (Emphasis in original.)

After then reviewing the administrative record, the court concluded that FHWA had carefully and thoroughly evaluated the upland alternative. It concluded that the EIS and the administrative record had satisfied all the purposes of an environmental impact statement discussed in Silva v. Lynn, 482 F.2d 1282 (1st Cir. 1973). The court reasoned that this manner of compliance sufficed because: "To require a supplemental EIS be generated by this case and on the record would be a needless and meaningless gesture and would simply delay the project."

The district court's decision, we conclude, was in violation of one of NEPA's requirements. There are two aspects to a court's review of an agency decision subject to the requirements of NEPA. First, the court makes a substantive review of the agency's action to determine if such action is arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706. This substantive review, although conducted on the basis of the entire administrative record, is quite narrow in scope. The court should only assure itself that the agency has given good faith consideration to the environmental consequences of its actions and should not pass judgment on the balance struck by the agency...