ELR Citation: ELR 20230
No(s). H-229 (D. Conn. Feb 7, 1974)

Further construction of an interstate highway segment is preliminarily enjoined pending preparation of a revised final environmental impact statement that meets the requirements of NEPA. At the outset, the court undertakes lengthy examination of the doctrine of laches, which defendants claim bars this suit. While the final EIS for the project was filed one year before plaintiff instituted this litigation, the court finds that the date of plans, specifications, and estimates (P.S.&E.) approval by the Federal Highway Administration is the point at which opponents of a highway project must decide whether to file suit. But in this case, the period of five months between P.S.&E. approval and the filing of the complaint did not constitute unreasonable and unconscionable delay given plaintiff's status as a public interest litigant and the fact that plaintiff did begin legal action as soon as it became aware of a post-EIS study of the project's air noise pollution impacts which the defendants had not made public.

The court then rules that there is no reasonable probalility that plaintiff would prevail at trial on the merits of a substantive NEPA claim under the Administrative Procedure Act's standard of review, but holds that certain of plaintiff's procedural NEPA claims justify the issuance of the injunction. The court finds merit in the contention that the final EIS is deficient since it was prepared by the state highway department, and the responsible federal agency, namely the FHwA, was not afforded the opportunity to substantively review, edit or modify it. The court holds that PPM 90-1's provision allowing state preparation of the final as well as the draft EIS for a federally funded highway is incompatible with the requirements of NEPA, since there is an inherent danger that the state agency's statement will be based on self-serving assumptions. This is true in the present case even though there is no legislation requiring the state agency to proceed with the highway, since the agency may recoup through federal funding 90 percent of its expenditures on right-of-way acquisition and other preliminary matters.

The court is also persuaded that plaintiff has a strong probability of success on the merits of its claim that the EIS is inadequate in its description and discussion of alternatives. Under the rule of reason, the omission of certain apparently prudent alternatives and the cursory treatment of others renders this section of the EIS fatally deficient. The court finds merit in plaintiff's further contention that the final EIS gives inadequate consideration to noise and air quality impacts. The analysis of these factors in the statement is cursory and conclusory, and the absence of supporting quantitative data is a serious defect. Defendants' post-EIS study on noise and air quality did not supplement the EIS and cure this deficiency since the study was prepared by state rather than federal officials, and was not circulated through the normal EIS review channels for comment by interested agencies.

In conclusion, the court finds that, in view of the important public interest being represented by plaintiff, construction of the project is not yet far enough along to preclude injunctive relief. The court also rules that the probable loss of jobs should not be accorded any more solicitude than probable environmental impacts in balancing the equities regarding injunctive relief. Plaintiff is directed to post a nominal bond in the amount of $100.

Counsel for Plaintiff
Haynes N. Johnson
Alphonse R. Noe
Bryan, Parmelee, Johnson & Bollinger
460 Summer Street
Stamford, CT 06901

Counsel for Defendants
Stewart H. Jones U.S. Attorney
Henry S. Cohn Asst. U.S. Attorney
450 Maine Street
Hartford, CT 06103

Clement J. Kichuk
Samuel Kanell Asst. Attorneys General
165 Capitol Avenue - Room 543
Hartford, CT 06115

Counsel for Amicus Curiae
Clifford R. Oviatt
Cummings & Lockwood
955 Main Street
Bridgeport, CT 16603