Sierra Club v. Hennessy, s. 513

• Decision Date: 06 December 1982
• Docket Number: 525,Nos. 513,D,522,523,s. 513
• Citation: 695 F.2d 643
• Parties: , 13 Envtl. L. Rep. 20,170 SIERRA CLUB, the City of New York, Business for Mass Transit, Committee for Better Transit Inc., NYC Clean Air Campaign, Inc., West 12th St. Street Block Assn., Hudson River Fishermen's Assn., Hudson County Citizens for Clean Air, Seymour Durst, Otis Burger, Mary Rowe and Howard Singer, Plaintiffs-Appellees, v. William C. HENNESSY, as Commissioner of the New York State Dept. of Transportation, Defendant-Appellant, The City of New York, Defendant-Intervenor-Appellant. ockets 82-6175, 82-6183, 82-6193, 82-6199.
• Court: U.S. Court of Appeals — Second Circuit

Page 643

695 F.2d 643

18 ERC 1297, 13 Envtl. L. Rep. 20,170

SIERRA CLUB, the City of New York, Business for Mass Transit, Committee for Better Transit Inc., NYC Clean Air Campaign, Inc., West 12th St. Street Block Assn., Hudson River Fishermen's Assn., Hudson County Citizens for Clean Air, Seymour Durst, Otis Burger, Mary Rowe and Howard Singer, Plaintiffs-Appellees, v. William C. HENNESSY, as Commissioner of the New York State Dept. of Transportation, Defendant-Appellant The City of New York, Defendant-Intervenor-Appellant.

Nos. 513, 522, 523, 525, Dockets 82-6175, 82-6183, 82-6193, 82-6199.

United States Court of Appeals Second Circuit.

Argued Sept. 29, 1982.

Decided Dec. 6, 1982.

Albert K. Butzel, New York City (Mitchell S. Bernard, Butzel & Kass, New York

City, of counsel), for plaintiffs-appellees Sierra Club, et al.

Leonard Olarsch, Office of the Corp. Counsel for the City Club of New York, New York City (Frederick A.O. Schwarz, Jr., Corp. Counsel, Robert Pfeffer, Asst. Corp. Counsel, Leonard Koerner, John C. Brennan, Gary Schuller, New York City, of counsel), for defendant-intervenor-appellant City of New York.

Milton S. Gould, New York City (Bernard D. Fischman, Shea & Gould, New York City, Darrell Harp, Michael McDonald, Albany, N.Y., Gary H. Baise, Jonathan Z. Cannon, Karl S. Bourdeau, Beveridge & Diamond, Washington, D.C., of counsel), for defendant-appellant Hennessy.

Before OAKES, MESKILL and KEARSE, Circuit Judges.

MESKILL, Circuit Judge:

The New York State Department of Transportation (NYSDOT) and the City of New York appeal from the issuance of the permanent injunction by United States District Court for the Southern District of New York, Thomas P. Griesa, J., enjoining the Federal Highway Administration (FHWA) and related federal defendants ¹ from "expending, or from undertaking any commitment to expend, federal funds for the acquisition of 'right-of-way' for Westway," a highway project in New York City. We reverse.

Background

The Westway Project is a proposed replacement for the crumbling and now largely demolished West Side Highway between 42nd Street and the Brooklyn Battery Tunnel, on the west side of Manhattan in New York City. The project contemplates the creation of a landfill which will support a six lane interstate highway, 93 acres of parkland, and substantial residential and commercial development.

Planning for Westway started in the early 1970's, when the united efforts of the Governor of New York and the Mayor of New York City resulted in the creation of the "West Side Highway Project" under the auspices of the New York State Department of Transportation (NYSDOT). NYSDOT initiated the planning process by requesting the Federal Highway Administration (FHWA) to approve the West Side corridor for treatment as an interstate link. Under the Federal-Aid Highway Act, 23 U.S.C. Sec. 103 (1976 & Supp. III 1979), Westway, as part of the interstate system, would be eligible for ninety percent federal funding.

Next, a draft Environmental Impact Statement (EIS) was prepared pursuant to section 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. Sec. 4332(2)(C) (1976) (NEPA), and on April 25, 1974 that draft EIS was circulated for public review and comment. In January of 1977, a Final Environmental Impact Statement (FEIS) was issued, which analyzed, among other things, the quality of urban development, traffic patterns, air quality, noise, water quality, and the impact of the landfill on the acquatic habitat of the interpier region. The FEIS also addressed and rejected the possible "trade-in" of the interstate road project, in exchange for federal funds to make capital improvements in the City's mass transit system. Finally, the FEIS identified the reasons for preferring the Westway design.

With respect to the impact on fish, the 1977 FEIS included an attachment, entitled "Water Quality Technical Report," which analyzed the fishery data sampled from the Hudson River interpier basin in May and June of 1973. Based on this report, the FEIS stated that the landfill would exert no adverse impact on the Hudson River fish population because no significant fish life existed in the landfill area. The report characterized the interpier area as "almost devoid of macroorganisms" and "biologically impoverished." J.App. at 2361.

After the United States Department of Transportation and the FHWA approved federal funding for Westway, NYSDOT applied to the Army Corps of Engineers for a dredge-and-fill permit, the final prerequisite to the construction of the landfill. See Federal Water Pollution Control Act, Sec. 404 (The Clean Water Act), 33 U.S.C. Sec. 1344 (1976), and Rivers and Harbors Appropriation Act of 1899, Sec. 10 (Rivers and Harbors Act), 33 U.S.C. Sec. 403 (1976). Thereafter, in 1977 and 1978, the Environmental Protection Agency, the Fish and Wildlife Service and the National Marine Fisheries Service expressed serious concerns about Westway's impact on the aquatic habitat, about possible flooding, the leaking of toxic materials from the landfill, and the question of design alternatives. J.App. 568-675; 2593-2659; 2672-78; 2794-2810; 2812-14; 2888-2901.

In December of 1978, after further consultation with the Environmental Protection Agency, NYSDOT determined that the project's impact on fishery resources required further study. NYSDOT commissioned Lawler, Matusky and Skelly Engineers to perform the 13-month analysis of the fish inhabiting the interpier basin. In September and November of 1980 the study was released. It showed substantially more aquatic life in the interpier area than was previously believed to inhabit that locale. The study concluded that, contrary to the 1977 FEIS, the landfill sites were not devoid of fish but served as a major overwintering or nursery ground for striped bass and other species. Despite the LMS study, and the environmental agencies' continued expressions of concern about Westway's impact on the Hudson River, the Corps issued a dredge-and-fill permit in March of 1981.

In 1974, a suit seeking to prevent the construction of Westway had been brought in the United States District Court for the Southern District of New York. In that first suit, Action for Rational Transit, a consumer group, moved for a preliminary injunction barring the State's acquisition of the right-of-way from the City. Action for Rational Transit v. West Side Highway Project, 517 F.Supp. 1342 (S.D.N.Y.1981), reprinted in J.App. at 1. ² Sierra Club initiated a second suit after the Corps issued the dredge-and-fill permit in March of 1981, ³ alleging that the issuance of the permit violated several statutes, including NEPA.

After conducting a hearing on July 17, 1981, the district court in the first suit denied the plaintiffs' motion for a preliminary injunction. The court found that because the federal and state law provide procedures to reinstate the status quo ante, the plaintiffs had failed to show that they would suffer irreparable harm from the State's acquisition of the right-of-way. Id. at 1344, reprinted in J.App. at 8-9; see 23 C.F.R. Part 480 (1980); New York Eminent Domain Procedure Law Sec. 406.

In light of that ruling, on September 8, 1981, the FHWA issued a "Letter of Approval" to NYSDOT, authorizing the state to proceed with the "acquisition of the right-of-way" and with "relocation assistance and pier demolition." J.App. 550-51. Pursuant to this authorization, on September 11, 1981, the State irrevocably acquired the City-owned property needed for Westway. ⁴

Thereafter, on November 11, 1981, the district court ruled on summary judgment motions filed by both parties in both the Action for Rational Transit and Sierra Club cases. In Action for Rational Transit, the court granted the defendants' motion for summary judgment, dismissing the suit. In Sierra Club, the court granted the Corps' motion for summary judgment as to all of Sierra Club's claims except those relating to the project's impact on fish. Between January 19 and February 1, 1982, the district court held a trial to consider whether the EIS adequately evaluated Westway's impact on fishery resources and to review the Corps' consideration of the EIS.

On March 31, 1982 the district court issued its opinion concerning the various challenges to Westway. It reaffirmed its previous decision dismissing the bulk of the claims. But with respect to fisheries, the district court found that the EIS, upon which the Army Corps had relied, was inadequate in its assessment of the proposed landfill's impact on juvenile fish. The court ruled that the Corps violated NEPA in determining not to prepare a SEIS in response to the commissioned study, and due to asserted shortcomings in the Corps' consideration of the fishery impacts, the dredge-and-fill permit lacked a legally sufficient basis under the Clean Water Act and the Rivers and Harbors Act. A judgment dated April 14, 1982 was rendered to that effect.

In its judgment, the district court remanded the permit to the Corps for reconsideration in compliance with the applicable statutes and regulations. The court specifically directed the Corps to prepare and circulate an SEIS evaluating, among other things, the Westway landfill's impact on the Hudson River fishery resources. The landfill for the construction of Westway was enjoined pending these further proceedings. J.App. 105-08.

After this trial, plaintiffs, at the court's suggestion, moved to amend their complaint in Sierra Club to add the Federal Highway Administration and related individuals as party-defendants. ⁵ The amended complaint alleged, inter alia, that the FHWA, in the 1977 EIS, inadequately considered fishery impacts and improperly failed to supplement the EIS in light of subsequent new information. On April 20, 1982 the district court added the FHWA as a party and then granted plaintiffs' motion for a preliminary injunction against the FHWA to prevent payment to New York State for acquisition...