ELR Citation: ELR 20039
No(s). s. 92-538B, -677B (D.R.I. Jul 30, 1993)

The court refuses to enjoin the proposed construction of a highway across Jamestown Island, Rhode Island, holding that the project does not violate the Intermodal Surface Transportation Efficiency Act (ISTEA), the Department of Transportation Act (DOTA), the Federal Water Pollution Control Act (FWPCA), or the Clean Air Act (CAA), and the Federal Highway Administration (FHwA) and the Rhode Island Department of Transportation (RIDOT) did not violate the National Environmental Policy Act (NEPA) in evaluating the project. The proposed highway (Jamestown connector) will connect two bridges that provide access to and transport across Jamestown Island in Narragansett Bay, along the Route 138 corridor. The proposal was developed by the FHwA and the RIDOT in order to improve public safety by separating local traffic from through traffic.

The court first holds that the FHwA and the RIDOT did not violate NEPA by evaluating the Jamestown connector apart from other projects in the Route 138 corridor in a 1987 final environmental impact statement (EIS). The FHwA's determination that the bridges on either side of the Jamestown connector were "logical termini" for the highway project EIS was not arbitrary or capricious, the project has utility separate from any projects that might be undertaken in the rest of the Route 138 corridor, and the project does not prevent consideration of alternatives for reasonably foreseeable traffic improvements. Moreover, since earlier environmental studies of the Route 138 corridor were broader in scope, it was appropriate to narrow the scope of the 1987 EIS to the Jamestown connector only. The court next holds that the defendants did not violate the DOTA by selecting a development alternative that will impact a historical area. The Secretary of Transportation was authorized to consider traffic service levels, traffic safety, and watershed concerns in making the determination that no feasible and prudent alternatives to the project exist that would have less impact on the historical area. The selected alternative will provide greater long-term historic preservation benefits, improve safety, attain efficient traffic flow, eliminate hazardous intersections, and improve access to local areas for emergency vehicles, and was therefore reasonable.

The court next holds that the FHwA did not violate the ISTEA by approving the project although it will increase the carrying capacity for single-occupant vehicles in an ozone nonattainment area. Under the plain language of a Department of Transportation interim guidance, the project was exempt from the ISTEA's requirements because it had advanced beyond the NEPA process and was being implemented at the time the ISTEA was enacted. Additionally, the court holds that the U.S. Army Corps of Engineers (the Corps) did not violate FWPCA §404(b)(1) by granting a permit for the project. The decision to grant a permit was not arbitrary and capricious because the Corps was entitled to rely on the evaluation of alternatives in the 1987 final EIS in making its determination that the selected alternative the least environmentally damaging practicable alternative. Moreover, the Corps adequately evaluated the public interest and did not abuse its discretion by not holding a public hearing on the permit application. Finally, the court holds that defendants did not violate the CAA's prohibition on activities that do not conform to a state implementation plan (SIP), because until Rhode Island submits its SIP in November 1993, projects may be approved as long as the resulting future emissions are less than the emissions that would result from the current situation.

Counsel for Plaintiffs
John M. Marks, J. William W. Harsch
J. William W. Harsch Law Offices
170 Westminster St., Ste. 800, Providence RI 02903
(401) 454-4466

Counsel for Defendants
Michael P. Iannotti, Ass't U.S. Attorney
U.S. Attorney's Office
Westminster Sq. Bldg.
10 Dorrance St., 10th Fl., Providence RI 02903
(401) 528-5477

Beverly Nash, Mary E. Ward
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000