ELR Citation: ELR 20427
No(s). 73 Civ. 100-LFM (S.D.N.Y. Feb 13, 1973)

Although the Department of Transportation fully complied with its guidelines for implementing NEPA, the court enjoins a highway location hearing because the Department failed to meet the stricter public hearing procedures provided by the applicable federal highway statute. The highway statute is implemented by Policy and Procedure Memorandum 20-8 which requires more extensive public participation than provided for under NEPA. Unlike NEPA's commenting procedure, PPM 20-8 comments are solicited before any tentative government decision is made in order to insure maximum opportunity for responses. Furthermore, PPM 20-8 comments are not limited to environmental considerations, but should include economic, social, and urban planning factors as well. Adequate notice under PPM 20-8 must specify the identity and location of all information "pertinent" to highway location, and may not merely refer to the draft impact statement. Similarly, public access to information under PPM 20-8 extends to all "pertinent" information, whether contained in the draft impact statement or not.

The court's jurisdiction to intervene in highway planning prior to the highway location hearing is not precluded by the doctrines of primary jurisdiction or exhaustion of administrative remedies, as there is no administrative procedure for citizens to appeal the result of the hearing. Even if an administrative appeal were available, a prehearing judicial remedy would be warranted for two reasons. First, one of the primary purposes of the hearing is to allow citizens to participate in the initial formation of the state's decision, and the state defeats this purpose when it makes a tentative decision on highway location prior to the hearing. Second, plaintiffs may suffer irreparable injury if the hearing is allowed to proceed without state compliance with PPM 20-8, because adverse publicity of a hearing in which plaintiffs' views are not effectively represented may dampen public support for plaintiffs' position and result in a weaker showing in any subsequent hearing. Coast Guard approval of bridges and congressional approval of causeways under the Rivers and Harbors Act of 1899 need not be obtained prior to highway location hearings.

See also Peterson and Kennan, The Federal-Aid Highway Program: Administrative Procedures and Judicial Interpretation, 2 ELR 50001 (May 1972).

Counsel for Plaintiffs
Edward N. Costikyan
Robert S. Smith
Paul, Weiss, Rifkind, Wharton & Garrison
345 Park Avenue
New York, NY 10022

John M. Conroy
Town Attorney
Oyster Bay, NY 11771

Counsel for Defendants
John R. Hupper
Norman J. Itzkoff
Cravath, Swaine & Moore
1 Chase Manhattan Plaza
New York, NY 10005