ELR Citation: ELR 20323
No(s). 94-4292 (AJL) (D.N.J. Mar 20, 1995)

The court holds that the New Jersey Department of Transportation (NJDOT) need not prepare an environmental assessment (EA) or an environmental impact statement (EIS) for the construction of two high-occupancy vehicle lanes along Route 287 in New Jersey. The NJDOT applied for a categorical exclusion (CE) for the project from the National Environmental Policy Act requirements under Federal Highway Administration (FHwA) regulations. The FHwA and the U.S. Environmental Protection Agency (EPA) concurred with the NJDOT's determination that no significant environmental impact would result from the project after reviewing the NJDOT's documentation, and the FHwA granted the NJDOT a CE. The court first holds that the NJDOT satisfied the regulations' requirement that it submit documentation demonstrating that the specific conditions or criteria for the CE are satisfied and that significant environmental effects will not result. The NJDOT submitted extensive documentation in support of the CE request, performed numerous additional studies that EPA requested, and performed an air quality analysis. The court holds that the fact that the New Jersey Department of Environmental Protection (NJDEP) granted the NJDOT a wetlands permit should be given considerable weight in considering whether the FHwA's grant of a CE to the project was reasonable. The NJDOT also performed an analysis of alternatives to the project that demonstrated that there were no feasible alternatives.

The court notes that whether an administrative agency's decision not to prepare an EIS or an EA should be measured by the "reasonableness" of that decision under the circumstances or by the Administrative Procedure Act's "arbitrary and capricious" standard is an open question. But the Third Circuit has repeatedly chosen the "reasonableness" standard, and its jurisprudence is controlling. The court holds that environmental-group plaintiffs have not met their burden of showing that the FHwA made a material mistake in its decision to grant a CE to the project. The affidavits plaintiffs cite comprise only 26 pages, while the administrative record consists of 2,770 pages documenting the potential environmental impact. EPA unequivocally supported a CE for the project, and the NJDEP concluded that the addition of the lanes would not adversely affect air quality within the local carbon monoxide nonattainment area. Further, the NJDOT has analyzed possible alternatives to the project, and the opportunity for public input, one of the important objectives that plaintiffs seek, has been afforded. Also, the project was a response to years of requests from the community to provide relief to the commuters using Route 287, and the level-of-action determination for the project described the surrounding area as very developed, including industrial, commercial, and office buildings as well as residences. In light of these circumstances, the proposed project is reasonable. Although the FHwA initially decided that the project qualified for a CE when the project envisioned addition of regular lanes rather than of high-occupancy vehicle lanes, the FHwA had ample opportunity to change its initial decision based on new information presented during the continuing review process. The court holds that based on the information that the NJDOT submitted, the FHwA's determination that the project should be granted a CE is reasonable. Moreover, this case is factually distinct from the cases plaintiffs cite to support the position that further studies should be undertaken. The court finds that the FHwA considered the environmental consequences of its decision to grant a CE to the project, while the affidavits plaintiffs cite hardly amount to categorical proof that significant environmental impact will result from the project. Plaintiffs have not pointed to anything that would overcome the overwhelming weight of evidence in the FHwA's and NJDOT's favor. The court thus denies plaintiffs' motion for a permanent injunction and grants defendants' motion for summary judgment.

Counsel for Plaintiffs
Edward Lloyd
Rutgers Environmental Law Clinic
Rutgers University
15 Washington St., Rm. 334, Newark, NJ 07102
(201) 648-5695

Counsel for Defendants
Susan Handler-Menahem, Ass't U.S. Attorney
U.S. Attorney's Office
Federal Bldg.
970 Broad St., Rm. 502, Newark, NJ 07102
(201) 645-2700