ELR Citation: ELR 20753
No(s). 85-1360 (1st Cir. Jul 12, 1985)

The court holds that the district court did not abuse its discretion when it refused, based on its finding that no environmental impact statement (EIS) was required, to preliminarily enjoin a New Hampshire highway project involving the upgrading of a 0.9-mile stretch of road. The court first holds that the district court was not bound by res judicata to issue an injunction. In a 1975 ruling, the district court had recognized the possibility of an intent to build a major highway piecemeal to avoid EIS requirements. Thoughit declined to issue an injunction because plans for the highway were too uncertain, it retained jurisdiction and warned that any future construction comporting with the studies for the highway, other than betterments of existing roads, would be viewed as major federal actions. The court of appeals holds, however, that the 1975 opinion did not survive a 1978 district court order that relinquished jurisdiction. Even if the 1975 holding remained in effect, the district court could properly have found that the present project was a betterment and not a major federal action requiring an EIS.

The court next holds that the district court did not abuse its discretion by refusing to issue the injunction on the merits. The district court could reasonably have found that the project would not have a "significant" effect on the environment. Appellant presented no clear evidence that the project would have adverse public health and safety effects from increased traffic and pollution or that the project was highly controversial. Finally, appellant presented no evidence of any present proposal to build a four-lane highway across the state.

[The 1975 district court decision appears at 6 ELR 20053.]

Counsel for Appellant
Haynes N. Johnson
Johnson, Chambliss & Wardenburg
158 Deer Hill Ave., Danbury CT 06810
(203) 327-2650

Counsel for Appellee
Peter C. Scott, Ass't Attorney General
208 State House Annex, Concord NH 03301
(603) 271-3658

Before Rubin^* and Breyer, JJ.