Puerto Rico Conservation Foundation v. Larson

• Citation: 797 F. Supp. 1066
• Decision Date: 27 February 1992
• Docket Number: Civ. No. 91-2378 GG.
• Parties: PUERTO RICO CONSERVATION FOUNDATION, et al., Plaintiffs, v. Thomas D. LARSON, etc., et al., Defendants.
• Court: United States District Courts. 1st Circuit. District of Puerto Rico

797 F. Supp. 1066

PUERTO RICO CONSERVATION FOUNDATION, et al., Plaintiffs, v. Thomas D. LARSON, etc., et al., Defendants.

Civ. No. 91-2378 GG.

United States District Court, D. Puerto Rico.

February 27, 1992.

Armando Cardona, Rio Piedras, Puerto Rico, Steven S. Rosenthal, Ellen E. Deason, Linda F. Calhoun, Morrison & Foerster, Washington, D.C., Nathaniel S.W. Lawrence, Natural Resources Defense Council, San Francisco, Cal., for plaintiffs.

Silvia Sepulveda-Hambor, U.S. Dept. of Justice, General Litigation Section, Environment and Natural Resources Div., Washington, D.C., Ivonne Gonzales Morales, Old San Juan, Puerto Rico, Maria-Hortensia Rios, Asst. U.S. Atty., D. Puerto Rico, Hato Rey, Puerto Rico, John Ebersole, U.S. Dept. of Agriculture, Office of Gen. Counsel, Atlanta, Ga., Irwin Schroeder, Regional Counsel, Federal Highway Admin., Albany, N.Y., Julia L. Perry, Regional Counsel, Eastern Federal Lands Highway Div., Federal Highway Admin., Sterling, Va., Frank D. Inserni, Hato Rey, Puerto Rico, for defendants.

OPINION AND ORDER

GIERBOLINI, Chief Judge.

I. INTRODUCTION

With every passing day on this planet, life becomes more perilous due to the reckless and sometimes illegal acts of individuals, agencies, corporations and even nations which fail to realize the importance of the environment to the present and future generations. It is thus not by happenstance that plaintiffs, a coalition of numerous environmental organizations, challenge the decision by the Federal Highway Administration and the U.S. Forest Service to rebuild a portion of Highway PR 191 ("Highway 191") — which runs through the "El Yunque" rainforest, also known as the Caribbean National Forest — without the preparation of an Environmental Impact Statement ("EIS").¹ This portion of the highway has been closed for twenty two (22) years due to landslides in 1970 which made it impassable. With only an Environmental Assessment ("EA")² dating back to 1982, defendants determined that an EIS was not essential for deciding whether to reopen the road, and issued a Finding of no Significant Impact (FONSI) to continue with the construction project.

We issued a temporary restraining order ("TRO") on January 30, 1992, to restrain defendants from initiating the construction in Highway 191 on February 3, 1992. On February 13, 1992, a hearing was held where the parties argued various motions, including plaintiffs' motion for preliminary injunction. We found that "good cause" existed for extension of the TRO under Rule 65(b) of the Federal Rules of Civil Procedure and thus extended the TRO for ten (10) additional days.

II. BACKGROUND

Road PR 191 was first built by the Civilian Conservation Corps in the 1940's. This narrow road crosses El Yunque at a high elevation through the steep-sided valley of the Rio Icacos. In October, 1970 a major landslide forced the U.S. Forest Service to close the road with gates at kilometer 13.3 on the north and kilometer 21 on the south. Subsequent storms in 1977 and 1979 caused other landslides, which further destroyed the road. In 1982, the Federal Highway Administration prepared plans and a contract to rebuild the closed portion under a "Memorandum of Agreement between the Commonwealth of Puerto Rico's Department of Transportation and Public Works, the U.S. Forest Service and the Federal Highway Administration." Based on an EA, the Federal Highway Administration decided that it did not need to prepare an EIS and issued a FONSI.

After extensive construction efforts, the contractor stopped work at Highway 191 without reopening it in its entirety and the Federal Highway Administration declared the contract completed in 1987. The Federal Highway Administration later tried to complete the project, but rejected all bids tendered as too expensive. Following Hurricane Hugo in 1989, which caused additional damages, the Federal Highway Administration terminated plans for additional work needed. In 1991, defendants decided to reopen Highway 191, and after determining that an EIS was not needed, they awarded their bid to Redondo Construction Corporation on November 4, 1991.

Plaintiffs filed this suit on November 4, 1991. They allege that defendants' decision to proceed with the reconstruction of Highway 191 without an EIS violates the National Environmental Policy Act ("NEPA"). Plaintiffs requested that this court issue a preliminary injunction to enjoin defendants from proceeding with the construction until they have fully complied with NEPA.

III. THE SCOPE OF NEPA AND CEQ

NEPA is a federal statute which sets forth national environmental priorities. NEPA explicitly recognizes the "critical importance of restoring and maintaining environmental quality to the overall welfare and development" of humankind. 42 U.S.C. § 4331(a). It also acknowledges the continuing responsibility of the federal government to "preserve important historic, cultural and natural aspects of our national heritage and maintain, wherever possible an environment which supports diversity and variety of individual choice". 42 U.S.C. § 4331(b)(4). The Supreme Court has noted that

NEPA promotes its sweeping commitment to `prevent or eliminate damage to the environment and biosphere' by focusing Government and public attention on the environmental effects of proposed agency action. 42 U.S.C. § 4321. By so focusing agency attention, NEPA insures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct.

Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371, 109 S.Ct. 1851, 1858, 104 L.Ed.2d 377 (1989).

NEPA creates a Council on Environmental Quality ("CEQ") which has issued detailed regulations explaining NEPA's statutory language, informing federal agencies when an EIS is needed and how one is prepared. Sierra Club v. Marsh, 769 F.2d 868, 870 (1st Cir.1985) (hereinafter Marsh I) CEQ regulations allow federal agencies to make a preliminary EA to determine whether the environmental effects of a suggested action are "significant." Id. at 870 (quoting 40 C.F.R. §§ 1501.3, 1501.4, 1508.9, 1508.27 (1984)). "According to these regulations, the EA is a `concise'<sup>3</sup> document that `briefly' discusses the relevant issues and either reaches a conclusion that preparation of an EIS is necessary or concludes with a `Finding of No Significant Impact' (FONSI)." Id.

When addressing the issue of actions that affect "significantly" the quality of the environment, the CEQ defines the term "significant" under a comprehensive list of factors. Among them are:

the degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources; the degree to which the action might adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the Endangered Species Act of 1973; and whether an action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment. 40 C.F.R. § 1508.27.

IV. THE PRELIMINARY INJUNCTION STANDARD

The First Circuit standard governing the district court's resolution of motions for preliminary injunctions was set forth in Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 6 (1st Cir.1991) (citing Aoude v. Mobil Oil Corp., 862 F.2d 890 (1st Cir. 1988); Hypertherm, Inc. v. Precision Products, Inc., 832 F.2d 697, 699 & n. 2 (1st Cir.1987)):

To determine the appropriateness of granting or denying a preliminary injunction, we have instructed trial courts to use a quadripartite test, taking into account:

1. The likelihood of success on the merits;

2. The potential for irreparable injury;

3. The balancing of the relevant equities (most importantly, the hardship to the nonmovant if the restrainer issues as contrasted with the hardship to the movant if interim relief is withheld); and

4. The effect on the public interest of a grant or denial of the restrainer.

Id. at 6.

Although the need to prevent irreparable injury to a party is an important factor when considering a petition for preliminary injunction, the most compelling reason to grant this request is the "need to prevent the judicial process from being rendered futile by defendant's action or refusal to act." 11 Wright & Miller, Federal Practice and Procedure, Civil § 2947, at 146 (Supp.1991).

District courts have ample discretion when making the decision to grant or deny an application for preliminary injunction and "unless a mistake of law or an abuse of discretion is made manifest ... the appellate court ... will not disturb the ruling below." Narragansett, 934 F.2d at 5 (1991) (citing Hyde Park Partners, L.P. v. Connolly, 839 F.2d 837, 842 (1st Cir.1988); Planned Parenthood League v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981)).

We shall now examine the preliminary injunction factors in light of the factual scenario before us.

A. Likelihood of Success

The First Circuit considers it "critical" for a party seeking a preliminary injunction to establish a likelihood of success on the merits. Narragansett, 934 F.2d at 6 (1991). See also Public Service Co. v. West Newbury, 835 F.2d 380, 383 (1st Cir. 1987); Lancor v. Lebanon Housing Auth., 760 F.2d 361, 362 (1st Cir.1985). A party seeking a preliminary injunction does not have to prove its claims at this stage of the proceedings, only that it is likely to succeed on the merits.

Plaintiffs' proof of likely success on the merits is intimately tied to this court's determination that the action involves a (1) major federal action, (2) significantly affecting the quality of the human environment. 42 U.S.C. § 4332(2)(C)(i). Plaintiffs argue that in cases exhibiting these two characteristics, NEPA mandates all agencies to assess and evaluate environmental effects through the preparation of an EIS.

The record...