ELR Citation: ELR 20591
No(s). 82-5445 (3d Cir. Mar 15, 1983)

The Third Circuit affirms the dismissal of National Environmental Policy Act (NEPA), Department of Transportation Act (DOTA), Federal-Aid Highway Act (FAHA), and state law claims in a suit to enjoin construction of Interstate 78 through the Watchung Reservation, a New Jersey park. Appellants claim that appellees violated NEPA by failing to supplement a 1976 draft environmental impact statement (EIS) that was not submitted for approval to the United States Department of Transportation (DOT) until 1980. The court interprets the applicable regulations as requiring a supplemental EIS only if the agency proposed substantial changes to the project or if the agency had significant new information. Applying a reasonableness standard to the decision not to revise the EIS, the court rules that DOT's finding of no significant impact from proposed changes to be reasonable under the circumstances, particularly since mitigation measures were included in the proposed changes. The court also upholds DOT's finding that six new studies of the project available at the final EIS stage contained no significant new information.

In three claims, appellants assert that the EIS is inadequate because it fails to discuss reasonable alternatives, misrepresents traffic volumes, and misrepresents the truck mix projection. The Third Circuit upholds the district court's ruling that the testimony of appellants' highway expert, which purported to show inaccuracies in the EIS, failed to prove that the EIS was inadequate. It notes that NEPA places basically procedural burdens on agencies, and holds that the EIS sufficiently dealt with alternatives and that appellants' expert's testimony did not raise genuine issues of material fact.

Appellants claim violation of the New Jersey Action Plan and federal regulations that require public hearings within three years before the request for approval of the highway location. New Jersey requested federal approval twice: first in 1959, after public hearings in 1958, and second in 1980, after completion of NEPA-mandated studies and public hearings in 1976. The court holds that the approval granted after the 1959 request was still in effect even though NEPA, DOTA, and FAHA mandated new studies. Thus, the state cannot be faulted for failing to follow the literal language of the regulations.

Appellants claim that state acquisition of an abandoned quarry as a fill site without federal approval or consideration of alternatives violated NEPA, DOTA, the New Jersey Environmental Rights Act (ERA), and DOT regulations. The court finds that the final EIS contained an adequate discussion of alternatives to the quarry site. However, the district court incorrectly ruled that economic considerations need not be discussed in the EIS. Nevertheless, the court does not reverse because the plan included adequate mitigation measures. The court holds that appellants lack standing to challenge the acquisition under federal regulations governing highway fund use because the acquisition would have been made with state funds if federal funds were unavailable and therefore any injury was not redressable.

Appellants claim that the state failed to meet DOT-imposed conditions for disposal of waste, for grading and finishing, and for accommodating other local concerns. The Third Circuit upholds the district court's finding that appellants failed to prove there were genuine issues of material fact regarding breach of conditions.

Appellants claim violation of and a right-of-action under the ERA. Though the ERA grants a private right-of-action for environmental injuries, it disallows suits if another statute provides "a more specific standard" for environmental control. The court holds that the New Jersey Action Plan establishes such a standard.

Finally, appellants claim that under the FAHA, the project is nonessential and must be removed from the interstate system. The court holds that although this project was not identified as an "essential gap" in the interstate system, DOT may still fund it, and that New Jersey complied with a provision of the FAHA requiring submission of a plan of expenditures by July 1, 1975.

Counsel for Appellants
David Sive, Robert C. Barrett
Winer, Neuberger & Sive
425 Park Ave., New York NY 10022
(212) 421-2150

Counsel for Appellees
Mary Catherine Cuff; W. Hunt Dumont, U.S. Attorney
970 Broad St., Rm. 502, Newark NJ 07102
(201) 645-2155

John J. Maiorana, James J. Ciancia, Howard B. Epstein; Irwin I. Kimmelman, Attorney General
Richard J. Hughes Justice Complex, CN 112, Trenton NJ 08625
(609) 292-4919

Before WEIS and BECKER, Circuit Judges, and VAN DUSEN, Senior Circuit Judge.