ELR Citation: ELR 21196
No(s). 93-1976 (1st Cir. May 23, 1994)

The court affirms a district court decision that denied citizens groups a preliminary injunction to prevent further construction of the Jamestown connector highway project along Route 138 in Rhode Island. The court holds that the groups failed to establish a likelihood of success on the merits of their claims against various federal and state agencies under the National Environmental Policy Act (NEPA), Federal Water Pollution Control Act (FWPCA) §404, Department of Transportation Act (DOTA) §4(f), and Clean Air Act (CAA) §176. The court holds that the district court did not err in holding that the agencies 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). Defendants did not unlawfully segment the Jamestown connector from the remainder of the highway, nor did they fail to consider the cumulative impacts of highway projects along Route 138. The district court did not err in upholding the agencies' determination that the two bridges on either side of the island over which the connector will cross are logical termini under regulations governing the proper geographic scope of an EIS. Although the bridges may not "control" or "generate" traffic as the agencies found, they are the only means by which cars can enter or exit the island. And because the connector is intended to facilitate traffic passing from one side of the island to the other, the bridges on either side of the island are logical termini. The court holds that the district court did not err in holding that the "independent utility" and "reasonable alternative" factors are more important in considering the proper scope of an EIS when the logical termini are not easily determined. Even though the connector is not in an urban area, the fact that it crosses an island in the middle of a bay is a sufficient special circumstance to warrant such a finding. The court also holds that the district court did not abuse its discretion in holding that the agencies sufficiently considered the cumulative environmental impacts of highway construction projects along the entire Route 138 corridor in three EISs that analyzed different projects and geographical areas. By referring to and incorporating the findings of 1979 and 1984 EISs in the 1987 final EIS, the agencies thoroughly analyzed the cumulative environmental impacts of all of the highway projects.

The court next upholds defendant U.S. Army Corps of Engineers' (Corps') preliminary environmental assessment under FWPCA §404 finding no significant impact warranting a full EIS. The Corps did not improperly segment its analysis or fail to consider cumulative effects. Also, the Corps properly issued a permit for the project under FWPCA §404 after determining that there was no practicable alternative that was less damaging to the environment. The court holds that defendant Federal Highway Administration did not fail to undertake all possible planning to minimize harm to historical sites, as required by DOTA §4(f), by failing to consider the alternative plan proposed by plaintiffs. The court holds that it has jurisdiction over plaintiffs' claims that the agencies violated CAA §106(c) conformity requirements. The conformity requirements challenged are standards of performance enforceable by CAA §304(a)(1) citizen suits. The court upholds the district court's holding that the Jamestown connector is exempt from further review with respect to compliance with the CAA's conformity requirements. The district court reasonably interpreted the grace period in CAA §176(c)(3)(B)(i) as applying only prospectively and not to past projects—such as the Jamestown connector—found to conform to a state implementation plan before enactment of the 1990 CAA Amendments.

[The district court's decision is published at 24 ELR 20039. Briefs in this action are digested at ELR PEND. LIT. 66325.]

Counsel for Plaintiffs
Molly Cochran
Sullivan & Worcester
One Post Office Sq., Boston MA 02109
(617) 338-2800

Counsel for Defendants
William B. Lazarus, Jacques B. Gelin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000