Monroe County Conservation Council, Inc. v. Volpe

• Decision Date: 18 December 1972
• Docket Number: Docket 72-1363.,No. 48,48
• Citation: 472 F.2d 693
• Parties: MONROE COUNTY CONSERVATION COUNCIL, INC., and Ray Huther, on His Own Behalf and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. John A. VOLPE, Individually and as Secretary of the United States Department of Transportation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

472 F.2d 693 (1972)

MONROE COUNTY CONSERVATION COUNCIL, INC., and Ray Huther, on His Own Behalf and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. John A. VOLPE, Individually and as Secretary of the United States Department of Transportation, Defendant-Appellee.

No. 48, Docket 72-1363.

United States Court of Appeals, Second Circuit.

Argued October 12, 1972.

Decided December 18, 1972.

COPYRIGHT MATERIAL OMITTED

Thomas R. Burns, Rochester, N. Y. (Wayne M. Harris, Rochester, N. Y., on brief), for appellants.

John D. Helm, Dept. of Justice, Washington, D. C. (Kent Frizzell, Asst. Atty. Gen., C. Donald O'Connor, U. S. Atty., John T. Sullivan, Jr., Asst. U. S. Atty., Buffalo, N. Y., and Jacques B. Gelin, Dept. of Justice, Washington, D. C., on brief) for appellee.

Before FRIENDLY, Chief Judge, and MEDINA and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

The Monroe County Conservation Council and other persons similarly situated seek to enjoin John Volpe, the Secretary of the United States Department of Transportation, from giving federal approval to and funding for a section of the Rochester, New York, "Outer Loop", also known as New York Route 47. The contemplated "Outer Loop" would, on completion, be approximately twenty-three miles long, running from a point near the south shore of Lake Ontario, southerly around Rochester and thence northerly to the Lake shore. Sixteen miles of the loop have been completed, leaving two segments yet to be constructed. The particular project which is the focus of this action is a six lane divided expressway 4.25 miles long, designed to connect the existing loop from the Scottsville Road interchange, completed in 1965, on the west, with the Winton Road, finished in 1968, on the east. The State of New York seeks to construct the highway under the Federal Aid Highway Program, 23 U.S.C. § 101 et seq., with 60% federal financial reimbursement.

The appellants' principal objection to the highway project is that it will take eleven acres of parkland by cutting through the Genesee Valley Park, owned by the City of Rochester, for some 3200 feet, to follow the Erie Barge Canal corridor through the park and across both the Genesee River and Red Creek. Approximately two-thirds of the sector through the park would be built on a viaduct.

The park, containing 800 acres of land, is fully served by bus from the inner-city and provides all the usual recreational facilities, including one of the nation's oldest public golf courses. In addition, an average of two hundred persons a day engage in boating on the Genesee River and Erie Canal in the park area.

If the highway is constructed, the appellants assert, among other things, that it will do substantial damage to trees and other natural flora and fauna, destroy walking paths adjacent to the Erie Canal, interrupt easy access to the park, produce noise and pollution, and create a general nuisance inhibiting the aesthetic pleasures of the area.

Although state and federal highway officials have been involved in various formal and informal contacts concerning this project from at least 1957, the State has not yet submitted a program for federal aid funding and the federal government is not yet committed to the project, see, 23 U.S.C. § 106(a). The federal government has, however, reviewed and approved the transcript of the public hearing held by the State on January 24, 1966, approved on February 8, 1967, preliminary location plans, and sanctioned on May 7, 1971 the taking of Genesee Valley Park land. Furthermore, it is undisputed that it stands ready to give final approval to the project when completed plans, specifications, and estimates are submitted.

This action, claiming violation of several federal laws and regulations, was instituted on July 20, 1971, and cross-motions for summary judgment were filed. Affidavits were submitted by both parties and the court took testimony from Robert E. Kirby, the New York Division Engineer for the Federal Highway Administration, before entering judgment for the defendant-appellee, the Secretary of Transportation.

The issues concern the construction and application of four areas of federal statutory law and whether or not the mandates of the statutes were complied with. These are: the National Environmental Policy Act; the statutes regarding the taking of parkland; the statute calling for hearings on highways constructed with federal financial aid; and the requirement that a permit be obtained to construct a bridge over a navigable river. We hold that the requirements of the statutes and regulations were not adequately complied with. We, therefore, reverse and remand.

I. The National Environmental Policy Act

The first point raised by the appellants is that the Secretary cannot approve federal funding of the project until he has filed an environmental impact statement as required by the National Environmental Policy Act of 1969, 42 U.S.C. § 4321, et seq.¹

Although the district court found that a statement approved by Secretary Volpe on May 7, 1971, satisfied the requirements of a NEPA impact statement, the Secretary relies in this court almost exclusively on the argument that no impact statement is required.

Before dealing with this latter contention, however, it is necessary to consider whether or not the Secretary's two and one-half page statement entitled "Environmental Statement and Determination," does satisfy NEPA and the obligations placed upon him by 49 U.S.C. § 1653(f) and 23 U.S.C. § 138.² We are satisfied that it falls far short of the NEPA requirements, as well as the Council on Environmental Quality Guidelines, 36 Fed.Reg. 7724-7729 (1971), and the Department of Transportation Order 5610.1 (October 7, 1970), designed to implement NEPA.

The primary purpose of the impact statement is to compel federal agencies to give serious weight to environmental factors in making discretionary choices, see, Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 787 (D.C.Cir.1971); National Helium Corp. v. Morton, 455 F.2d 650, 656 (10 Cir. 1971); Calvert Cliffs' Coord. Comm., Inc. v. Atomic Energy Comm., 146 U.S.App.D.C. 33, 449 F.2d 1109, 1114 (1971). It is, at the very least, "an environmental full disclosure law," Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F.Supp. 749, 759 (E.D.Ark.1971), for agency decision makers and the general public. In light of this, the Secretary of Transportation was bound fully to comply with the requirements of the statute, and mere token efforts in that direction do not suffice.

Other than saying that a road will go through a park, the Secretary's statement does not cover four of the five items required by the statute, 42 U.S.C. § 4332(2)(C) even though he is required to discuss them in detail. These are: (i) the environmental impact, such as the amount of land that will be taken and the volume of traffic which will be using the highway; (ii) adverse environmental effects which cannot be avoided, such as the noise and pollutants which will be generated; (iv) the relationship between local short-term use of the land and the maintenance and enhancement of long-term productivity; and (v) irreversible and irretrievable commitments of resources which would be involved if the highway were built, such as the number of trees that would be destroyed. The statement makes passing mention of possible alternatives to the proposed action (iii), but it does so in such a conclusory and uninformative manner that it affords no basis for a comparison of the problems involved with the proposed project and the difficulties involved in the alternatives. The requirement for a thorough study and a detailed description of alternatives, which was given further Congressional emphasis in § 4332(2)(D), is the linchpin of the entire impact statement.³ Without the detailed statement the conclusions and decision of the agency appear to be detached from and unrelated to environmental concerns, see, Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 833-837 (1972); see also, Greene County Planning Bd. v. Federal Power Comm., 455 F.2d 412, 419 (2 Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L. Ed.2d 90 (1972). Consideration, of course, must also be given to the feasibility and impact of the abandonment of the project. Calvert Cliffs', supra, 449 F.2d at 1114; Seaborg, supra, 463 F.2d at 787.

Another requirement of § 4332(2)(C) is that comments on the proposed action must be sought from other federal agencies with expertise in the field. While the record reveals that the Transportation Department did receive letters from the Department of the Interior and the Department of Housing and Urban Development concerning the taking of the parkland, there is no indication that they accompanied the statement through the review process as required by this section and in compliance with Department of Transportation Order 5610.1(7)(e), (g). Obviously there is no purpose in obtaining outside views if they are not placed before the decision maker, especially those which may be opposed to the project, see Greene, supra, 455 F.2d at 418.

Finally, there is no indication that the Department of Transportation sought the opinion of the Council on Environmental Quality, as required by § 4332(2)(C) and the Council's Guidelines, 10(b), 36 Fed.Reg., at 7726.

The Secretary's statement is plainly insufficient to satisfy the NEPA requirements. It is, therefore, necessary to consider the Secretary's claim on appeal that no statement is required for this project.

An impact statement must be prepared for "major Federal actions significantly affecting the quality of the human environment," 42 U.S.C. § 4332(2)(C). Although in some circumstances the terms "major" and "significantly affecting . . . the . . . environment" have to be considered separately, Hanly v. Mitchell, 460 F.2d 640, 644 (2 Cir.), cert. denied, 409 U.S. 990, 93...