I-291 Why? Association v. Burns

• Decision Date: 07 February 1974
• Docket Number: Civ. No. H-229.
• Court: U.S. District Court — District of Connecticut
• Parties: I-291 WHY? ASSOCIATION, on behalf of itself and its members v. Joseph B. BURNS, as Connecticut Commissioner of Transportation, et al.

372 F. Supp. 223

I-291 WHY? ASSOCIATION, on behalf of itself and its members v. Joseph B. BURNS, as Connecticut Commissioner of Transportation, et al.

Civ. No. H-229.

United States District Court, D. Connecticut.

February 7, 1974.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Haynes N. Johnson, and Alphonse R. Noë, Stamford, Conn., for plaintiff.

Robert K. Killian, Atty. Gen., Clement J. Kichuk, Asst. Atty. Gen., Samuel Kanell, Special Asst. Atty. Gen., Stewart H. Jones, U. S. Atty., Henry S. Cohn, Asst. U. S. Atty., Hartford, Clifford R. Oviatt, Jr., Bridgeport, Conn., Andrew S. Aharonian, New Britain, Conn., for defendants.

RULING ON MOTION FOR PRELIMINARY INJUNCTION

BLUMENFELD, Chief Judge.

Plaintiff is an unincorporated association of persons aggrieved by present plans for the construction of the southwest quadrant of I-291, a multilane, controlled access, divided highway which would run for about 7.6 miles through Rocky Hill, Wethersfield, Newington, New Britain, and Farmington, Connecticut, linking I-91 south of Hartford, Connecticut, with I-84 west of Hartford. This quadrant was originally planned as only part of an entire circumferential beltway around metropolitan Hartford. The southwest quadrant (Rocky Hill to Farmington) of this beltway is the only portion thereof which is nearing construction, and is the only portion thereof which is directly in issue in this action. For convenience I will refer hereinafter to this southwest quadrant by its family name, "I-291."

Plaintiff, whose standing to bring this action has not been challenged, has filed a complaint seeking injunctive and declaratory relief. Plaintiff asserts that this Court has jurisdiction over the action under 28 U.S.C. §§ 1331, 1337, 1361, 1391, 2201 and 2202. Alleged as separate causes of action are defendants'¹ breach of four federal statutes.² In moving for a preliminary injunction to halt construction of I-291, plaintiff has by agreement with defendants restricted its attack to its first cause of action: defendants' alleged breach of the duties imposed on them by the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4331 et seq.³ Plaintiff enumerates in five counts defendants' alleged failure to comply with NEPA, four of the five counts touching directly or indirectly on the adequacy of the Environmental Impact Statement (EIS) on I-291 prepared by defendants. The first count alleges that the air pollution and noise generated by I-291, as indicated by defendants' own studies made after completion of the EIS, will be so great as to violate the substantive mandate of section 101(b)(3) of NEPA, 42 U.S.C. § 4331(b)(3), directing federal agencies to act so as to "attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences." The second count accuses defendants of failing to act in accordance with the "continuing responsibility" for environmental problems required of federal agencies by section 101(b) of NEPA, insofar as they failed to incorporate air and noise pollution data obtained by them after completion and approval of the original EIS, into a supplemental EIS duly circulated among and approved by responsible public agencies. The third count alleges that the original EIS was not prepared in accordance with pertinent Federal Highway Administration (FHWA) guidelines, and count four alleges that the EIS lacked the adequacy and good faith preparation required by NEPA, and that the EIS was not prepared "by the responsible official" as directed by NEPA. The fifth count asserts that defendants violated their duty of "continuing responsibility" under NEPA by failing to file a supplemental EIS once it became apparent that the southwest quadrant of I-291 would be the only portion of the entire Hartford metropolitan beltway to be constructed in the foreseeable future. Issue was joined on these five counts at a hearing of several days' duration on plaintiff's motion for a preliminary injunction.

I. BACKGROUND

The general location for an expressway such as I-291 has been under consideration for some twenty years.⁴ Public hearings on possible routes to be used were held in 1959 and 1961.⁵ Public hearings on the design of the highway were held in 1969, 1970, and 1971.⁶ The proposed highway was divided into two projects of roughly equal length, designated Conn. Projects Nos. 93-74 and 51-130. Design study reports on these projects were submitted to the FHWA, together with a request for design approval, in August, 1970,⁷ and were resubmitted in revised form in December, 1970.⁸ At this time the cost of constructing I-291 was estimated to be $31,500,000.⁹ If I-291 is constructed as part of the federal interstate highway system, 90 per cent of the cost will be borne by the federal government, and 10 per cent by Connecticut. See 23 U.S.C. § 120(c).

It has not been disputed that FHWA supervision and funding of the planning and construction of I-291 by the FHWA constitutes "a proposal for major federal action" within the purview of section 102(C) of NEPA, which became effective January 1, 1970. Thus on February 1, 1971, the FHWA Division Engineer for Connecticut advised the Commissioner of the Connecticut Department of Transportation (CONNDOT) that an EIS would be required for I-291.¹⁰ Personnel of CONNDOT's Bureau of Highways accordingly prepared a rough draft of an EIS.¹¹ This rough draft was reviewed in February, 1971, by David Densmore, a field employee of the Connecticut division of the FHWA.¹² Defendant George Koch, then Chief of Design for the CONNDOT Bureau of Highways (until March, 1971), supervised preparation of a preliminary draft EIS based on the earlier rough draft and Densmore's comments thereon.¹³ During the preparation of the preliminary draft, Densmore and two other FHWA engineers spoke almost daily, in person or by telephone, with CONNDOT personnel concerning the draft EIS.¹⁴ Defendant Koch testified that the resulting preliminary draft was based more on his experience and knowledge of the project than on empirical data.¹⁵ This preliminary draft was filed with the FHWA in June, 1971,¹⁶ and circulated among other federal agencies,¹⁷ including the Council on Environmental Quality (CEQ), but not including the Environmental Protection Agency (EPA).

After comments from these agencies on the preliminary EIS were received by the FHWA and CONNDOT, and after a multi-disciplinary team of experts in environmental problems had reviewed the draft EIS at the regional office of the FHWA, see Conservation Society of Southern Vermont v. Secretary of Transportation, 362 F.Supp. 627, 630 (D.Vt.1973) (Circuit Judge Oakes), the final EIS was written by CONNDOT personnel in cooperation with Densmore and other FHWA employees.¹⁸ Also contributing to the final EIS was defendant A. J. Siccardi, who upon transfer from another state became the FHWA Division Engineer for Connecticut on June 26, 1971.¹⁹ The final EIS²⁰ was submitted to the FHWA's divisional office on February 24, 1972.²¹ This office forwarded the final EIS to the FHWA's regional office on February 28, 1972, with a cover letter noting that the EIS had been prepared in conformance with FHWA guidelines and recommending the EIS's acceptance.²² After acceptance by the regional and Washington offices of the FHWA and the office of the Secretary of Transportation, the final EIS was filed with the CEQ on September 18, 1972.²³

On or about October 4, 1972, public notice was given by newspaper publication that the EIS would be available for inspection for thirty days thereafter.²⁴ Shortly after the expiration of this thirty-day period, defendant Siccardi granted formal design approval for I-291 on November 6, 1972.²⁵ On that same day, however, defendant Siccardi requested CONNDOT to give "further consideration" to the noise and air quality impacts of I-291, to reflect advances in noise and air quality evaluation techniques since preparation of the I-291 EIS and design study reports.²⁶

CONNDOT personnel completed a noise impact evaluation for I-291 in February, 1973.²⁷ When it sent this report to defendant Siccardi on March 6, 1973, CONNDOT noted that the report showed one area of open space to be noise sensitive, and recommended construction of a mound ten feet in height to attenuate this noise.²⁸ Defendant Siccardi's office concurred in this recommendation on April 4, 1973.²⁹

CONNDOT commissioned an air quality study by The Research Corporation of New England (TRC),³⁰ which was forwarded to defendant Siccardi on June 8, 1973.³¹ This report showed that projected 1990 traffic along I-291 would, under "worst-case" meteorological and traffic conditions, cause the level of hydrocarbons in the air to exceed EPA standards at three points near the expressway.³² On June 14, 1973, defendant Siccardi approved CONNDOT's "plans, specifications, and estimates" (P.S.&E.) for the first two miles of I-291 from I-91 to the Newington-Wethersfield town line.³³ This P.S.&E. approval committed the United States to paying its 90 per cent share of the cost of the construction outlined in the P.S. &E. See 23 U.S.C. § 106(a). See generally Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1328 (4th Cir. 1972), cert denied sub nom. Fugate v. Arlington Coalition on Transportation. 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261. In the same letter in which he approved the P.S.&E. for this project, defendant Siccardi also authorized CONNDOT to solicit bids for the construction of the first two miles of I-291.³⁴ On September 6, 1973, a $10,996,216.92 contract for this construction was awarded to Arute Brothers, Inc. (Arute).³⁵ Arute began work under the contract on September 19, 1973.³⁶ Its operations to the date of the hearing consisted of grading, clearing, and drainage work, and the construction of temporary approaches.³⁷

On October 12, 1973, defendant Siccardi notified CONNDOT that his...