ELR Citation: ELR 20922
No(s). 3-83-0585-H (N.D. Tex. Jun 4, 1985)

The court holds that environmental impact statements (EISs) prepared in the early 1970s for the construction of two highways that were never built may serve for a new construction proposal, if defects in the discussion of environmental effects and alternatives are cured in a supplemental EIS, and that the determination under §4(f) of the Department of Transportation Act that there was no feasible and prudent alternative to the taking of parkland was unsubstantiated. After dealing with preliminary issues of jurisdiction, venue, and standing, the court concludes that despite name changes, alignment shifts, and other differences between the projects the two old EISs are applicable, at least as starting points, for the environmental evaluation of the revised project. The court then notes that the EIS for one of the projects, the west leg of Loop 9, was not improperly segmented from the planning for Loop 9 as a whole. Although the west leg as originally planned was to terminate at a rural road with no potential traffic generator, it had independent utility at the time the EIS was prepared since it was to provide a north-south route independent of the purpose of the whole loop. The second segment of the original project, Spur 484, also has independent utility because it was to link two major roads, even though without the west leg of Loop 9 Spur 484 would end in a field. The court then holds that a report mentioned briefly in the Loop 9 EIS was not incorporated by reference.

Turning to the substantive coverage of environmental effects, the court holds that the EIS need not include a discussion of the impact of the proposed highway on flooding, finding that the plaintiffs had not proven by a preponderance of the evidence that the highway will cause an increase in flooding. With respect to air quality and noise pollution, however, the court holds the brief discussion is conclusory and does not satisfy the requirement under NEPA that there be a "detailed statement" on an adverse environmental impact. The court then turns to the EIS's discussion of economic and social impacts of the proposed highway and accepts this sectionn as being barely adequate, although it would have preferred additional detail.

The court next holds that the discussion of alternatives in the EIS is inadequate. An EIS need not discuss every conceivable alternative, but the discussion of the three alternatives and the "no-build" alternative in this case are so deficient so as not to contain any information that would enable the decisionmaker to come to a reasoned conclusion about the comparative risks of the alternatives. The court also holds that a reevaluation conducted by the defendants in 1984 is insufficient and that the changes in the project are significant enough to require supplementation of the EIS in the areas of realignment, merger of previously separate projects, air quality, and noise pollution. The court holds the reevaluation did not comply with NEPA in that no public hearings were held and there was very little circulation of the document within the federal government.

With respect to Department of Transportation Act claims, the court holds that the rejection of a particular route alternative on the grounds that an elementary school would be displaced is a violation of §4(f) of the Act. There was no basis for rejection of the alternative on the grounds of fesibility, and the dislocation of the school would not be the disruption of "extraordinary" magnitude required to be imprudent under the "feasible and prudent alternative" test. The court also holds that the shift in alignment of the proposed highway into a park constitutes a significant environmental impact requiring a public hearing to be held under §28 of the Federal-Aid Highway Act, although it also holds that another shift attributable to increased development in the proposed right-of-way does not require a public hearing. Finally, the court holds that the plaintiffs are not barred by laches. The defense of laches is disfavored in environmental litigation because of the public interest in environmental quality and compliance with Congress' environmental policies, and although the planning for the highways began over a decade ago, the claims relating to the shift in alignment through the park and the implications for supplementation and public hearings only arose in 1981.

Counsel for Plaintiffs
Walter A. Cober
207-C W. Main St., Grand Prairie TX 75050
(214) 262-2601

Counsel for Defendants
Claude Brown, Ass't U.S. Attorney
310 U.S. Courthouse, 10th & Lamar Sts., Fort Worth TX 76102
(817) 334-3291

Mary Ann Moore, Ass't U.S. Attorney
1100 Commerce St., Rm. 16G28, Dallas TX 75242
(214) 767-0951

David R. Thomas, Ass't Attorney General
Suite 700, 714 Jackson St., Dallas TX 75202
(214) 742-8944