ELR Citation: ELR 20489
No(s). CA3-84-0376-D (N.D. Tex. Jun 30, 1989)

The court holds that a final environmental impact statement (EIS) for a Texas state highway complies with the National Environmental Policy Act (NEPA). The Texas State Department of Highways and Public Transportation (DHPT) prepared a draft EIS that addressed seven alternative route locations and a "no build" alternative. A homeowners organization opposed the favored alternative with the result that the DHPT studied two more alternative routes and ultimately modified the favored alternative to ameliorate some concerns raised by area residents. The final EIS was ultimately approved by both the DHPT and the Federal Highway Administration (FHwA) and submitted to the Environmental Protection Agency for notice publication of a comment period. The homeowners organization publicly declared that they would litigate if the highway plan was approved. After the final record of decision was approved, clearing the highway project for advancement and ultimate construction, Collin County sought declaratory relief that the EIS satisfied NEPA.

The court first notes that this is the first reported decision where the parties seeking a judgment declaring the sufficiency of a final EIS are not agencies required by NEPA to prepare the statement. The court holds that jurisdiction exists for declaratory relief since the defendant could have brought a coercive action in federal court to enforce its rights. While the Declaratory Judgment Act does not confer federal jurisdiction, it does allow parties to precipitate suits that might otherwise have to wait for the declaratory relief defendant to bring a coercive action. The record demonstrates that the homeowners organization was formed as a legal action committee, had threatened suit, and that litigation regarding the final EIS is still sufficiently threatened. The court next holds that the plaintiffs' right to relief is not determined by whether defendant's possible federal question action would be brought against the plaintiff, but whether the court determines that it has subject matter jurisdiction. The court holds that a substantial controversy exists between these parties due to adverse legal interests of sufficient immediacy and reality, which have not abated.

The court holds that plaintiffs have standing since there is a threatened harm to plaintiffs that directly emanates from the declaratory defendants' activities and because declaratory relief could legally end the controversy. The court further holds that while it retains discretion to decline to enter a declaratory judgment, even when it possesses subject matter jurisdiction and the party seeking relief has satisfied the requirements for obtaining such a judgment, the present action should be considered. This suit will clarify whether the final EIS for the highway project is sufficient, is an expedient means to resolve a question, and will not trammel upon state court jurisdiction.

Reaching the merits, the court holds that plaintiffs' summary judgment motion adequately directs the court's attention to the absence of the homeowners organization's evidence, thus shifting the burden of proof to the homeowners organization to present evidence that it is entitled to relief. The court holds that the final EIS provided sufficient detail of air and water quality impacts and flooding impacts analysis. The court may not declare the final EIS insufficient simply because it did not engage all the latest scientific techniques, as long as the agency, in objective good faith, took a "hard look" at the environmental consequences. The court next holds that plaintiffs did not impermissibly prejudge alternatives to the highway project since the final EIS discusses how the agency reviewed these alternatives and the final EIS contains components of alternatives. The court further holds that rights-of-way transformed into temporary parks while waiting for project approval are not the kind of parks covered by §4(f) of the Department of Transportation Act, and thus the FHwA did not err when it stated in the final EIS that no §4(f) properties were associated with this project. Finally, the court holds that the agency applied a "rule of reason" in fulfilling its obligation to take a hard look at the environmental effects of its planned action, and did not violate NEPA by arbitrarily or capriciously failing to recirculate or supplement the draft EIS due to new information. While a court should not automatically defer to an agency's express interest in finality without carefully reviewing the record and concluding that the agency has made a reasoned decision based on its evaluation of significant new information, the record shows that the homeowners organization presented no fact issue that requires a trial of the recirculation/supplementation issue.

Counsel for Plaintiffs
Thomas W. Luce III
Hughes & Luce
2800 Momentum Pl., 1717 Main St., Dallas TX 75201
(214) 939-5500

David Frederick
2103 Rio Grande, Austin TX 78705
(512) 478-1968

Counsel for Defendants
Marvin Collins, U.S. Attorney; Mary Ann Moore, Ass't U.S. Attorney
1100 Commerce St., Rm. 16G28, Dallas TX 75242-1699
(214) 767-0951

Rodney D. Parrott, Ass't Attorney General
P.O. Box 12548, Austin TX 78711-2548
(512) 463-2004