Senville v. Peters, No. 2:03-CV-279.
| Decision Date | 24 May 2004 |
| Docket Number | No. 2:03-CV-279. |
| Citation | 327 F.Supp.2d 335 |
| Parties | Wayne SENVILLE; Donald Horenstein; Vermont Public Interest Research Group, Inc.; Friends of the Earth, Inc.; Sierra Club, Inc.; and Conservation Law Foundation, Plaintiffs, v. Mary E. PETERS in her official capacity as Administrator of the Federal Highway Administration (FHWA), and Patricia A. McDonald in her official capacity as Secretary of the Vermont Agency of Transportation (VTrans), Defendants. |
| Court | U.S. District Court — District of Vermont |
Ronald A. Shems, Burlington, VT, for plaintiff.
Carol L. Shea, Burlington, VT, for defendant.
Plaintiffs Vermont Public Interest Research Group, Inc., Friends of the Earth, Sierra Club, Conservation Law Foundation and two individuals bring an eleven-count amended complaint for declaratory and injunctive relief against the Administrator of the Federal Highway Administration ("FHWA") and the Secretary of the Vermont Agency of Transportation ("VTrans"). They seek, inter alia, 1) a declaration that the FHWA has violated The National Environmental Policy Act ("NEPA") and other laws in approving and funding Segments A-B of the Chittenden County Circumferential Highway ("CCCH"); 2) an order requiring the FHWA to withdraw its approval of the CCCH until such time as the FHWA has complied with NEPA; and 3) an injunction against ground-disturbing work in connection with any portion of the Segment A-B project.
Before the Court are Plaintiffs' Motion for Partial Summary Judgment (Doc. 29) and Defendants' Cross-Motion for Judgment (Doc. 43).1
Chittenden County, located in the northwestern portion of Vermont, consists of nineteen towns and cities. It has the largest county population in the state of Vermont. Over the past several decades it has shown a steady transformation from a rural society and economy to an urban and suburban society and economy. (AR 30003777.)2 Within the last ten to twenty years, Chittenden County has experienced extensive growth and development pressure and severe burdens on some local roads. Id.; see also AR 30002609-11.
The proposed Chittenden County Circumferential Highway ("CCCH"), also known as VT-289, is a four-lane, limited access highway extending approximately 15.8 miles from I-89 in Williston, north and west through Essex to Vermont Route 127 in Colchester. The proposed action was designated as a demonstration project under Section 131(f) of the Surface Transportation Assistance Act of 1982, which delegated the responsibility of preparing the environmental documentation to the state of Vermont. The legislation was intended to show the feasibility of reducing the time and cost required to complete highway projects, an aim which apparently has not been achieved.
The purpose of the project was stated to be to improve travel for through traffic and to relieve congestion on existing highways in Colchester, Essex, Williston and Essex Junction. These towns include provision for a circumferential highway in their master plans, as does the Chittenden County Regional Planning Commission's regional plan.
Because state funding was not available for a circumferential highway, the four towns, along with the planning commission, obtained a demonstration grant as part of the 1982 legislation. They also formed the Chittenden County Circumferential Highway District ("CCCHD"), and undertook, in conjunction with VTrans, the responsibility for implementing the project. They retained an engineering and planning firm, which among other things projected that travel demands required a four-lane highway, and that transportation system management techniques (expanded bus service, park-and-ride, van pooling, etc.) were not practicable.
Because the estimated construction cost exceeded the available funds, however, the planners decided to build a two-lane highway with climbing lanes as necessary, on a four-lane right-of-way ("ROW"). They also divided the CCCH into five (later ten) segments. Segments C-F, between Route 117 and Route 2A in Essex, have been built as a two-lane limited access road. The construction of Segments A-B, linking C-F with I-89, is at issue in this suit.
The 1980 census reported that the urbanized portion of Chittenden County exceeded 50,000, triggering the necessity of forming a Metropolitan Planning Organization ("MPO" or "CCMPO") to oversee transportation planning for the entire metropolitan area. The MPO adopted an interim transportation plan which recommended that the CCCH be constructed as an at-grade two-lane road.
VTrans, with assistance from FHWA, prepared a Draft Environmental Impact Statement ("DEIS") that was published on August 1, 1985, and a Final Environmental Impact Statement ("FEIS") that was published on August 29, 1986. (AR 20002916; 20004833.) The FEIS concluded that there was a need for major highway improvements in the area. According to the FEIS, the CCCH was intended to address five transportation-related issues: road system hierarchy,3 capacity and level of service ("LOS"),4 transportation demand,5 social demands and economic development,6 and safety.7 According to the FEIS, the CCCH would provide additional regional by-pass capability around population centers and ... relieve existing traffic congestion through these areas. The proposed action will eliminate most of the existing traffic deficiencies in the study corridor and will allow maintenance of acceptable levels of service on the existing network beyond the design year 2004. It will also have indirect benefits to the roadway networks in the cities of Burlington, South Burlington, and Winooski.
(AR 20004847.) The FEIS also documented that the CCCH would result in significant impacts in seven areas: transportation, land use, parkland, archaeology, agriculture, stream crossings, and noise. (AR 20004847-48.) Other potential effects were evaluated, but considered to have no or minimal significance.
VTrans issued a Record of Decision ("ROD") for the CCCH on November 5, 1986. (AR 1A000122-25.) The ROD makes no mention of the scaled-back aspect of the project, but the CCCH as described in the FEIS makes clear that the project slated for construction is a two-lane highway that is intended to be expanded to four lanes sometime in the future. Apparently there was no appeal from this ROD.
In September 1991 FHWA authorized construction funds for Segments C-F, a 4.5 mile segment between VT 117 and VT 2A in Essex. Segments C-F were opened to traffic in 1993. In late 1998 VTrans began work on a reevaluation of Segments A-B, in preparation for construction of those segments. Segments A-B would extend from I-89 in Williston to join Segments C-F at VT 117. VTrans concluded in 1999 that the 1986 FEIS remained adequate and a supplemental EIS ("SEIS") was not required. (AR 1A000517.)
In 2001 FHWA determined that the 1986 FEIS and ROD could not serve as the FHWA NEPA documents for future phases of the project, because FHWA had never approved the 1986 documents. FHWA decided that the appropriate procedure was to adopt the 1986 FEIS, pursuant to 40 C.F.R. § 1506.3. It did so on or about July 20, 2002. (AR 10008271.) FHWA also decided to reevaluate Segments A-F, the next phase of construction plus the already built segments. That reevaluation issued August 9, 2002 ("EA") (AR 30000460-968), a revised reevaluation issued May 9, 2003 ("REA") (AR 30001394-2362) and a final revised reevaluation issued on August 15, 2003 ("FREA"). (AR 30002592-2755.) FHWA concluded that no additional or new significant environmental impacts had been identified, and issued a ROD on August 22, 2003. (AR 1A000601-14.) The August 22, 2003 ROD also recorded that FHWA had adopted the 1986 FEIS under the provisions of 40 C.F.R. § 1506.3, but that FHWA would require additional environmental evaluation with public involvement before making a determination regarding construction beyond Segments A-F. (AR 1A000602, 05.)
On September 18, 2002, President Bush issued Executive Order ("E.O.") 13274: Environmental Stewardship and Transportation Infrastructure Project Reviews. This E.O. required federal agencies to ensure that environmental reviews of transportation infrastructure projects be conducted in a timely and environmentally responsible manner, and to cooperate in the planning and development of transportation facilities and services. (AR 30003812D.) The CCCH — whose purpose in this context was stated as providing for economic development as well as highway improvement (AR 3004087) — was designated a high-priority transportation infrastructure project, and identified for expedited environmental review. (AR 30003812D.)
Following the CCCH's designation as a high priority project under the E.O., FHWA and EPA coordinated a resolution of issues raised by EPA's comments on the REA. (AR 30003812D-H.)
NEPA directs that all federal agencies must, for major federal actions significantly affecting the quality of the human environment, prepare a detailed statement concerning 1) the environmental impact of the proposed action; 2) any adverse environmental effects which cannot be avoided should the proposal be implemented; 3) alternatives to the proposed action; 4) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and 5) any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented. 42 U.S.C.A. § 4332 (West 2003).
Council on Environmental Quality ("CEQ") regulations implementing NEPA require that environmental impact statements be prepared in two stages, a draft EIS that is circulated for public comment, and a final EIS that responds to those comments. 40 C.F.R. § 1502.9(a), (b)....
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