Sierra Club v. United States Army Corps of Engineers, 81 Civ. 3000.

• Decision Date: 30 June 1982
• Docket Number: No. 81 Civ. 3000.,81 Civ. 3000.
• Citation: 541 F. Supp. 1367
• Parties: SIERRA CLUB, The City Club of New York, Business for Mass Transit, Committee for Better Transit, Inc., NYC Clean Air Campaign, Inc., West 12th Street Block Association, Hudson River Fishermen's Association, Hudson County Citizens for Clean Air, Seymour Durst, Otis Burger, Mary Rowe, and Howard Singer, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, John Marsh, as Secretary of the Army of the United States, Joseph K. Bratton, as Chief of Engineers, Walter M. Smith, Jr., as New York District Engineer of the United States Army Corps of Engineers, William C. Hennessy, as Commissioner of the New York State Department of Transportation, United States Department of Transportation, Andrew L. Lewis, Jr., as Secretary of Transportation of the United States, Federal Highway Administration, Raymond A. Barnhart, as Administrator of the Federal Highway Administration, the City of New York, Defendants.
• Court: U.S. District Court — Southern District of New York

541 F. Supp. 1367

SIERRA CLUB, The City Club of New York, Business for Mass Transit, Committee for Better Transit, Inc., NYC Clean Air Campaign, Inc., West 12th Street Block Association, Hudson River Fishermen's Association, Hudson County Citizens for Clean Air, Seymour Durst, Otis Burger, Mary Rowe, and Howard Singer, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, John Marsh, as Secretary of the Army of the United States, Joseph K. Bratton, as Chief of Engineers, Walter M. Smith, Jr., as New York District Engineer of the United States Army Corps of Engineers, William C. Hennessy, as Commissioner of the New York State Department of Transportation, United States Department of Transportation, Andrew L. Lewis, Jr., as Secretary of Transportation of the United States, Federal Highway Administration, Raymond A. Barnhart, as Administrator of the Federal Highway Administration, the City of New York, Defendants.

No. 81 Civ. 3000.

United States District Court, S. D. New York.

June 30, 1982.

Butzel & Kass by Albert K. Butzel, Mitchell S. Bernard, New York City, for plaintiffs.

John S. Martin, Jr., U. S. Atty., by Gaines Gwathmey, III, R. Nicholas Gimbel, Asst. U. S. Attys., New York City, for U. S. Army Corps of Engineers, U. S. Dept. of Transp., and Federal Highway Admin.

Lawrence R. Liebesman, Washington, D. C., for Environmental Defense Section, Land and Natural Resources Div., U. S. Dept. of Justice.

Beveridge & Diamond by Gary H. Baise, Jonathan Z. Cannon, Charles A. Patrizia, Carl Eardley, Washington, D. C., for Com'r, Dept. of Transp., William C. Hennessy.

Frederick A. O. Schwarz, Jr., Corp. Counsel, by John C. Brennan, Asst. Corp. Counsel, New York City, for the City of New York.

GRIESA, District Judge.

On March 31, 1982 the court handed down an opinion, which dealt with the proposed "Westway" Project for the West Side of Manhattan in New York City and the related landfill in the Hudson River. In that opinion, the court held that the permit for the landfill, which had been granted by the United States Army Corps of Engineers to the State of New York, was invalid as having been issued in violation of the requirements of federal law. The matter was remanded to the Corps for further proceedings in compliance with law.

One of the principal issues in the case was whether the Corps of Engineers had fulfilled its obligation under the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., in relying on an Environmental Impact Statement issued by the Federal Highway Administration ("FHWA") and the New York State Department of Transportation ("New York State DOT") in January 1977 ("January 1977 EIS").

In the March 31, 1982 opinion the court held that, during the time the Corps of Engineers was considering the landfill permit, information was obtained by the Corps, the FHWA and the New York State DOT which demonstrated the invalidity of the statements made in the January 1977 EIS on the subject of the impact of the proposed landfill on fisheries. The court held that, since the matter of fisheries was central to the consideration of the landfill permit application, the Corps was obligated to issue an environmental impact statement disclosing the new information. The Corps did not do so. The court found that the FHWA and the New York State DOT were instrumental in persuading the Corps to withhold the fisheries information.

At the time of the trial, the New York State Commissioner of Transportation was a defendant in the case, along with the Corps of Engineers and federal officials connected with the Corps. However, the FHWA was not a defendant.

Following the March 31, 1982 opinion, plaintiffs proposed either to file a separate action against the FHWA or to amend the complaint in the present action adding a claim against the FHWA. The latter procedure has been followed. The complaint in the present action has been amended. The claim against the FHWA is that it violated NEPA.

The parties have been given an opportunity to offer additional evidence on the new claim, and the taking of this evidence has now been concluded. This opinion constitutes the court's findings of fact and conclusions of law on this matter.

The portion of the trial of this action which preceded the March 31, 1982 opinion will be referred to as "the first hearing." The portion of the trial which followed the submission of the claim against the FHWA will be referred to as "the second hearing."

Prior to the second hearing, plaintiffs moved for a preliminary injunction, seeking to restrain the State of New York from paying approximately $97 million to the City of New York for the right-of-way for the proposed landfill, and further seeking to restrain the FHWA from making a 90% reimbursement to the State for the right-of-way payment. In a bench opinion of April 20, 1982, the court granted the motion against the payment of the FHWA to New York State and denied the motion as to the payment by New York State to the City.

The City of New York intervened as a defendant in the action at the time of the preliminary injunction motion.

Summary of Ruling

The claim against the FHWA is that, following the issuance of the January 1977 EIS and prior to the release of major funding for Westway, certain new information became available relating to the environmental impact of Westway, including:

(a) The completion of a fishery study, which revealed that the proposed Westway landfill area is an important habitat for striped bass;

(b) The submission of comments by the National Marine Fishery Service ("NMFS"), the Fish and Wildlife Service ("FWS"), and the Environmental Protection Agency ("EPA"), taking the position that the proposed Westway landfill threatened serious adverse impact on Hudson River fisheries resources;

(c) Proposals for several new alternatives to Westway;

(d) Urban renewal in the West side area, which rendered the urban development aspects of Westway substantially less important and attractive (e) Increases in the costs of Westway and uncertainty of adequacy of funding; and

(f) Increases in the estimated levels of traffic and air pollution that would result from the construction and operation of Westway.

The claim is that the new information rendered the January 1977 EIS incorrect and incomplete, and that a supplemental environmental impact statement was required pursuant to applicable regulations. No such supplemental statement was issued.

With regard to the issue of impact on fisheries, plaintiffs claim that even before the new fishery study was carried out, and indeed at the time the January 1977 EIS was issued, the authors of this EIS knew, or should have known, that the material in the EIS on fisheries was incorrect.

The court finds that plaintiffs have not made out a case against the FHWA regarding the need for supplementation as to items (c)-(f) above. The court finds, however, that the information in the January 1977 EIS regarding fisheries was untrue. The authors of the EIS knew, or should have known, that they had no basis for the presentation made on this subject. Subsequently, when the data from the fishery study became available, this data demonstrated positively the falsity of the EIS on the subject of fisheries. The FHWA was under a duty to file a supplemental environmental impact statement setting forth the facts. The FHWA wilfully refused to take the necessary corrective action.

The evidence at the second hearing not only demonstrated the failure of the FHWA to fulfill its own obligations under NEPA, but also reinforced the evidence presented at the first hearing to the effect that the FHWA and the New York State DOT colluded in a successful effort to persuade the Corps of Engineers to refrain from issuing an environmental impact statement in connection with the landfill application.

Since the FHWA has failed to comply with NEPA, the FHWA must be enjoined against making any further payments for, or taking any further steps toward, the construction of Westway, except as specifically approved by the court. The matter must be remanded to the FHWA for further proceedings in compliance with the law.

Findings of Fact

Agencies Involved

The principal responsibility within the FHWA for the Westway project rests with that agency's New York Division. The Division Administrator is Victor Taylor. The FHA official directly responsible for the Westway project is Graham Bailey, who carries the title of Area Engineer. Both Taylor and Bailey testified at the second hearing. Another witness from the FHWA at the second hearing was Fred Bank, an ecologist based in Washington.

The FHWA has worked closely on Westway with the New York State DOT, headed by William Hennessy, the Commissioner. Commencing in 1972 an administrative entity known as the "West Side Highway Project" was formed under the jurisdiction of the New York State DOT. This entity will be referred to hereafter as "the Project" or "the Westway Project." The Project was made up almost entirely of outside consulting firms. The chief of these firms was Systems Design Concept, Inc. ("Sydec"). Lowell K. Bridwell, the principal of Sydec, was the Executive Director of the Project from 1972 until 1981, when he resigned to take an official post with the State of Maryland. In 1981, the FHWA requested that the administration of the Westway project be placed in the hands of state employees. Consequently, a state employee, Michael Cuddy, became Project Director in March of that year, succeeding Bridwell. Sydec and other outside consulting firms continue to be employed for various purposes. Bridwell and Cuddy testified at the second hearing.

Under the provisions of NEPA, where the federal action involves a grant of funds to a state, the necessary environmental impact statement may be prepared by a state agency, so long as the responsible federal official ensures that the scope, objectivity and content of the statement are proper. 42 U.S.C. § 4332(2)(D).

The ...