13 ELR 20349 | Environmental Law Reporter | copyright © 1983 | All rights reserved
Marple Township v. LewisNos. 74-925, 81-4627 (E.D. Pa. August 30, 1982)
The court enjoins the Federal Highway Administration (FHWA) and the Pennsylvania Department of Transportation from proceeding with construction or funding of 16.9 miles of the proposed Blue Route highway in Pennsylvania, finding that the FHWA violated the National Environmental Policy Act (NEPA) and § 4(f) of the Department of Transportation Act (DOTA). The court holds that the FHWA failed to comply with its NEPA regulations because it proposed to reduce substantially the capacity of the highway, based on revised vehicle-mile projections, without preparing a supplemental environmental impact statement (EIS) or providing an opportunity for public comment on the changes. Even though the environmental consequences of the changes may be beneficial, the changes are substantial and constitute significant new information requiring a supplemental EIS, which should be open for public comment.
The court rejects plaintiffs' contentions that the final EIS/§ 4(f) statement is defective for failure to consider corridor alternatives. By the time the FHWA began the draft EIS in 1974, the only realistic alternatives to the project, which the Department of Transportation (DOT) had approved in 1963, were alignment variations along the Blue Route corridor. Under NEPA the FHWA need not discuss unreasonable alternatives. Nor does compliance with NEPA trigger retroactive application of FHWA corridor location and design public hearing regulations. Public hearings held in 1961 on the corridor selection complied with requirements in effect at the time and reconsideration of the corridor was not necessary although both location and design should be considered in the supplemental EIS.
However, the court rules that the § 4(f) statement approved by DOT is inadequate because it fails to establish that no feasible and prudent alternative routes existed to the selected route, which will cut through parkland and historic sites. The agency contended that alternative routes would disrupt local communities, business patterns, and land use planning, but the court finds that these are not unique or unusual factors so as to justify the taking of parkland under DOTA. The court directs defendants to prepare a new § 4(f) statement that reflects any highway design changes, and to make a proper § 4(f) determination.
The court rules that the FHWA floodplain encroachment regulations are consistant with Executive Order 11988, which requires an agency to determine that no practical alternative exists to locating a highway in a floodplain. The FHWA regulations interpret the order as applying only if a significant risk exists that emergency highway routes will be disrupted by flooding or a highway will have a significant adverse impact on a floodplain. However, the court does not rule on the FHWA's analysis since defendants may need to reanalyze the project's impacts on floodplain encroachment in the supplemental EIS/§ 4(f) statement. Finally, the court declines to determine whether defendants are required to obtain a state floodplain construction permit underthe Pennsylvania Flood Plain Management Act because the agencies may substantially alter the project during the supplemental EIS process. The court also notes that the motives of plaintiffs are irrelevant to the litigation.
Counsel for Plaintiffs
Dilworth, Parson, Kalish & Kauffman
2600 Fidelity Bldg., Philadelphia PA 19109
Counsel for Defendants
Susan Dein Bricklin, Ass't U.S. Attorney
3310 U.S. Cthse., 601 Market St., Philadelphia PA 19106
John M. Hrubocak
Office of Chief Counsel
Dep't of Transportation, 1200 Transp. & Safety Bldg., Harrisburg PA 17120
Myrna Field, Joseph Marshall III
Mid-Atlantic Legal Foundation, 1521 Locust St., Philadelphia PA 19102
[13 ELR 20349]
Van Artsdalen, J.:
Opinion and Order
The planned construction of a major highway through developed urban and suburban areas frequently gives rise to litigation focused on compliance with both federal and state environmental laws. The proposed Mid-County Expressway, also identified as I-476 and L.R. 1010, but more frequently referred to as the "Blue Route," is no exception. Civil Actions 81-4627 and 74-925 contest the proposed highway as to both procedural and substantive environmental requirements of federal and state laws.
The present "Blue Route" plans provide for a multi-lane, limited-access highway that commences at an interchange with Interstate Highway I-95 (the Maine to Florida East Coast interstate highway) at a point near the City of Chester, Pennsylvania, and proceeds in a general northerly direction through Delaware County and into Montgomery County to a termination point at an interchange with Interstate Highway I-276, generally designated as the pennsylvania Turnpike. The total length is 21.5 miles. The highway would cut a path through developed residential areas and it would also traverse along and across certain stream valleys in which public parks and recreational areas are located. Much of the route would be located approximately five miles west of the city limits of Philadelphia, Pennsylvania, and serve, in part, as a circumferential beltway around Philadelphia.
The Blue Route has been in the planning stage for decades. Substantial portions of the highway have been constructed. The portion of the highway extending from an interchange with I-76, generally known as the Schuylkill Expressway, northerly to the northern terminus at the Pennsylvania Tunpike at Plymouth [13 ELR 20350] Meeting, Pennsylvania, is not involved in the present litigation, that portion having been substantially completed. A total of 16.9 lineal miles of highway, extending from the interchange at I-95 northerly to the interchange at the Schuylkill Expressway, is in issue in this litigation. Of this section, all of which is in dispute, 5.1 miles have been constructed, the I-95 interchange completed, and the interchange at the Schuylkill Expressway either completed or under construction.
The core issues in this case emanate from a Final Environmental Impact/Section 4(f) Statement, dated August 8, 1980. As in many challenges to proposed interstate and/or federal-aid highway projects based on environmental laws, plaintiffs have raised many issues, both procedural and substantive. The major contentions of plaintiffs may be briefly summarized: (1) inclusion by an "Addendum" to the Final Environmental Impact/Section 4(f) Statement of a "Task Force" report that substantially "downscaled" the project, based in part upon new and updated data developed by the Delaware Valley Regional Planning Commission (DVRPC) as to estimated projected traffic and population growth by the year 2000, which Addendum and Task Force report were never submitted for public hearing or comment; (2) failure to more thoroughly discuss and consider possible alternatives, especially as to corridor location in both the Draft and Final Environmental Impact/Section 4(f) Statements; (3) failure to hold separate corridor and design public hearings as required by United States Department of Transportation regulations; (4) invalid Section 4(f) determination by the Secretary of Transportation; and (5) improper floodplain encroachments.
II. Historical Development of Project Plans
To understand the nature of the challenges that plaintiffs assert against the proposed highway, a brief review of the lengthy historical development of the plans for the project is necessary. Notation of various statutory enactments of major environmental laws in relation to the plans as they progressed is also essential to any determination of the issues.
Exactly when the plan was initiated to construct a limited access highway to the west of Philadelphia connecting and running between I-95 and the Pennsylvania Turnpike need not be ascertained. Serious studies accompanied by correspondingly severe controversy and criticism concerning the route or corridor for such a highway had commenced by at least the late 1950's. The Pennsylvania Highway Department, predecessor to the present Pennsylvania Department of Transportation (PennDot), and the Federal Bureau of Public Roads, predecessor of the Federal Highway Administration (FHWA), considered various alternative routes and corridors. Eventually, on or about November 16, 1961, the Pennsylvania Highway Department proposed the so-called "Blue Route" corridor that with minor alterations remains as the present-day "Blue Route" in dispute.1 Public hearings were held by the Pennsylvania Highway Department on December 7 and 8, 1961.
At the time of the public hearings in 1961, federal law required as to federal-aid highway projects:
(a) Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town or village, either incorporated or unincorporated, shall certify to the Secretary [of Transportation] that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic effects of such a location. Any State highway department which submits plans for an Interstate System project shall certify to the Secretary that it has had public hearings at a convenient location, or has afforded the opportunity for such hearings, for the purpose of enabling persons in rural areas through or contiguous to whose property the highway will pass to express any objections they may have to the proposed location of such highway. . . .
23 U.S.C. § 128.
On May 7, 1963, a so-called "modified" version of the "Blue Route" corridor that had been submitted at the public hearings held in December 1961 was submitted to the Bureau of Public Roads, United States Department of Commerce. On June 12, 1963, the Federal Highway Administrator approved this corridor, subject to four conditions which were imposed to lessen any harm to Swarthmore College and to preserve the Crum Creek Valley for public recreation. Portions of lands of Swarthmore College and of the Crum Creek Valley lie within the Blue Boute corridor, which with minor variations remains the same today as when approved by the Federal Highway Administrator in 1963.
After the June 12, 1963, approval, the plans and the project moved forward. Final design contracts were awarded by Pennsylvania in 1964. Some of the rights-of-way were acquired. Construction on several sections commenced as early as 1967. A portion of the highway was completed in January, 1969.
The Department of Transportation Act, 49 U.S.C. §§ 1651-59, enacted October 15, 1966, as amended in 1968, provided in part:
After August 23, 1968, the Secretary [of Transportation] shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.
49 U.S.C. § 1653(f). A similar provision was contained in the Federal-aid Highway Act Amendment of 1968, 23 U.S.C. § 138, also effective August 23, 1968. Together, 49 U.S.C. § 1653(f) and 23 U.S.C. § 138, as set forth above shall hereafter be referred to as "Section 4(f)." A Section 4(f) statement or determination shall hereafter refer to the United States Secretary of Transportation's determinations (1) and (2) as above set forth and as required by the statutes.
The National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-61, became effective on January 1, 1970. Apparently in an attempt to comply with NEPA and with the Section 4(f) requirements of the Department of Transportation Act and the Federal-aid Highway Act, the United States Department of Transportation (USDOT) prepared an Environmental Impact Statement (EIS) and a Section 4(f) Statement as to various segments of the uncompleted portions of the highway. Following a consent decree in National Wildlife Federation v. Tieman, No. 1318-73 [3 ELR 20688] (D.D.C. June 23, 1973), an entirely new and separate EIS/Section 4(f) Statement for the entire 16.9 miles of the highway extending from the I-95 Interchange near Chester, Pennsylvania, to the Schuylkill Expressway Interchange (being the entire portion of the highway involved in the present litigation) was commenced in 1974 by the FHWA in cooperation with PennDOT.2
After preparation of the EIS/Section 4(f) Statement commenced in 1974 for the entire section of the highway in dispute, Civil Action 74-925, which had been filed by individual persons and several environmental and/or civic organizations, was stayed.
The Draft EIS was prepared with the assistance of a private engineering firm and made available to the public in April 1976. [13 ELR 20351] Because a substantial use of public parklands as well as certain designated historic sites would be required by the highway, a Draft Section 4(f) Statement of the Secretary of USDOT was likewise prepared and simultaneously submitted along with the Draft EIS for public inspection. Exhibits in Support of Defendant Larson's Motion for Summary Judgment (hereinafter Defendant's Exhibits), Exhibit B, Draft EIS and Section 4(f) Statement (in three volumes) (Docket Entry #37). After proper public notice, public hearings on the Draft EIS/Section 4(f) documents were held at several proper locations in 1976.3
The Draft EIS/Section 4(f) Statement proposed a six-lane divided highway for the entire length. The highway was to have limited access by means of a total of six interchanges, including the respective terminal points at the intersections of I-95 and the Schuylkill Expressway. The selected corridor alignment required acquisition of eighty-five acres of land that would be taken from eleven publicly or privately owned parks and five historic sites. Id. at Section I at 4-5. The highway would traverse the valleys of the Ithan, Darby and Crum Creeks, in which a substantial amount of the parklands involved are located, including lands utilized for open space as part of the campus of Swarthmore College.
Following the public hearings on the Draft EIS/Section 4(f) Statement, preparation of a Final EIS/Section 4(f) Statement began. On February 15, 1978, a Final EIS, still in a preliminary or draft form, was submitted to FHWA and other appropriate federal agencies. Several of the administrative agencies expressed serious criticism of this EIS and serious doubts about the proposed project. The Department of Interior noting the severity of the impact on the recreational use of the affected parklands, questioned the lack of adequate consideration of alternatives, especially the "no build" alternative. Plaintiff's Motion for Summary Judgment, Exhibit E (Docket Entry #19). The Environmental Protection Agency severely criticized the EIS, labeling as "a major shortcoming," "the failure to adequately develop and analyze the range of possible alternatives . . . ." Plaintiff's Motion for Summary Judgment, Exhibit F (Docket Entry #19). The EIS as submitted on or about February 15, 1978, proposed a highway which was the same as that contained in the Draft EIS/Section 4(f) Statement, except for a very few modifications.
On March 13, 1979, the Administrator of FHWA wrote to the Secretary of PennDOT, stating, in part:
Because of the controversy surrounding the location and scale of this proposal . . . the Secretary [USDOT] and I have been involved in reviewing the proposal . . . . I have concluded that it would be inappropriate to request the Secretary's concurrence in this final EIS/Section 4(f) statement until three issues . . . are further addressed.
Plaintiff's Motion for Summary Judgment, Exhibit L (Docket Entry #19). The first issue was the financial capability of PennDOT. The second issue was the possibility of a "downscoped" (i.e., smaller) project, including possible reduction in number of lanes, design speed, median strip width, and size of interchanges. The third issue to be "addressed" was possible utilization of public mass transit facilities with "pack and ride" lots. Plaintiff's Motion for Summary Judgment, Exhibit L (Docket Entry #19).
Subsequent to what is best described as a tentative rejection by FHWA of the Final EIS/Section 4(f) Statement, the Secretary of PennDOT on July 6, 1979, responded to FHWA's review of the documents by a detailed letter that, in a concluding section, stated: "[I]t appears that opportunities do exist to reduce the scale of the proposed Mid-County Expressway." Plaintiff's Motion for Summary Judgment, Exhibit M (Docket Entry #19). A meeting between the Secretary of PennDOT and the Division Administrator of FHWA was held on August 22, 1979. It that meeting it was agreed that a "Task Force" would be formed, composed solely of officials from PennDOT and FHWA. The purpose of the "Task Force" was to develop in greater detail "downscoping and transit interface proposals in and for the project. The Task Force was to limit its activities to "downscoping and transit interface" in order "to permit a final decision on the FEIS/4(f) documents." The "Task Force" report was submitted to the Deputy Highway Administrator of FHWA on February 15, 1980. Defendant's Exhibits, Exhibit M, Task Force Basis Report (Docket Entry #37).
In substance, the Task Force report recommended (1) reducing the median width; (2) replacing cloverleaf interchanges with interchanges smaller in land area utilization, specifically, diamond-type interchanges except at the two terminal interchanges; (3) eliminating the interchange at Sproul Road; (4) providing "park and ride" facilities at or near certain of the interchanges with the caveat that additional public involvement and environmental clearances would be required, id. at 11; (5) reducing the highway from six to four lanes from I-95 northward to the West Chester Pike interchange (being approximately the southern half of the total highway length between I-95 and the Schuylkill Expressway).
Without the change or alteration of a single word in the prepared Final EIS as submitted in February 1978, the Task Force report was incorporated into the Final EIS as a separate "Addendum." In the "Addendum," which is dated August 1980 in the published Final EIS, there is reference to "the original Final EIS," which refers to the Final EIS prior to the inclusion of the "Addendum." This so-called "original Final EIS" is then and thereafter designated in the Task Force Addendum as "the base Final EIS." A statement is inserted that the Addendum "together with the base Final EIS are considered to satisfy the requirements of NEPA." Defendant's Exhibits, Exhibit C, Final EIS, Addendum, Section I, page 1 (Docket Entry #37).4
The Task Force Addendum asserts, inter alia, that "Expressway encroachments in stream valleys have been significantly reduced." Id. at 1 (emphasis added). It further provides: "As a result of the Task Force study, there will be major revisions to the previously completed final design discussed in the base Final EIS." Id. at 2 (emphasis added). The Addendum further opines that the "discussion in the base Final EIS remains valid." Id.
The Addendum claims credit for major revisions and significant reductions in stream valley encroachments, and makes the flat assertion that the discussion as contained in the Final EIS prior to the Addendum remains valid. The Addendum rationalizes and/or explains the changes as being appropriate because of new up-dated traffic estimates projected for the year 2000, prepared by the Delaware Valley Regional Planning Commission (DVRPC), which present a "more conservative" estimate than that utilized in the Draft EIS, prepared between 1974 and 1976. The Task Force Addendum states that the "resulting year 2000 traffic projected for the Expressway was much lower for the facility recommended by the Task Force than the projection in the base Final EIS. (Maximum ADT/s of approximately 67,000 and 94,000 respectively)."5 Id. at 10 (emphasis added). The Addendum proceeds to an extensive discussion of the "build" versus "no-build" alternatives based on estimated traffic use of approximately 71% (67,000/94,000) of that utilized through all earlier stages of the preparation of the EIS, including any and all public hearings and agency comment phases.
The Final EIS/Section 4(f) Statement, containing the Addendum, was submitted on May 16, 1980, for the Secretary of USDOT's Section 4(f) determinations. Defendant's Motion For Summary Judgment, Exhibit O (Docket Entry #36). The Deputy Administrator of FHWA recommended that the Secretary make the statutorily required Section 4(f) determinations by a "concurrence" in the recommendations contained in the Section 4(f) Statement. "Concurrence," signifying affirmative Section 4(f) determinations, was made and signed by William B. Johnson, Assistant Secretary for Policy and International Affairs and by the General Counsel of USDOT on August 5, 1980, subject to certain specified conditions.
The Final EIS/Section 4(f) Statement with the "concurrence" of the Secretary was forwarded to the Pennsylvania Division [13 ELR 20352] Administrator of FHWA on August 8, 1980, and approved by FHWA. Thereafter, proper notice of the proposed action was published in the Federal Register on October 17, 1980. The Department of Interior, continuing in its objections to the project on environmental grounds, on November 10, 1980, formally referred the dispute to the Council on Environmental Quality (CEQ) for inter-agency resolution of the problem in accordance with NEPA and applicable agency regulations. On March 25, 1981, a "record of decision" (ROD) was prepared, setting forth an acceptable compromise. Among the compromise conditions, there was to be appointed an environmental monitor to assure that federal and state agencies fully complied with environmental commitments contained in the EIS. Another task force of state federal and Swarthmore College officials was to be appointed to continue efforts to minimize any adverse environmental impacts inflicted on Swarthmore College. The "record of decision" compromise conditions were formally accepted by FHWA on March 31, 1981.
Marple Township and Radnor Township, being townships through which the proposed highway will traverse, filed Civil Action 81-4627 on November 12, 1981, against the respective Secretaries of Transportation of Pennsylvania (PennDOT) and the United States (USDOT). Upon motion, Swarthmore College and Ashwood Manor Civic Association were granted leave to intervene as plaintiffs. Upon further motion, the Greater Philadelphia Chamber of Commerce, Pennjerdel Council, the Boroughs of Prospect Park, Upland, Trainor, Eddystone, Marcus Hook, the County of Delaware, the City of Chester, The Delaware County Chamber of Commerce, The Chester Group, the Delaware County AFL-CIO Council, the Committee for the Blue Route, and several individual residents of the area were granted leave to join as defendants to assert their respective interests favoring the proposed Blue Route highway. Civil Action 74-925 was reactivated and by agreement consolidated for all purposes with Civil Action 81-4627. Cross-motions for summary judgment have been filed by the parties.6
III. The "Task Force" Addendum
The foregoing recitation of the major historical events sets the contours of the present challenges to the proposed federal-aid state highway project named the "Blue Route." Of grave and primary concern is the procedural and substantive effect of the Task Force Addendum contained in the Final EIS, which Addendum, arguably at the very least, makes significant changes in the proposed project, based upon entirely new, updated factfual data that has not been subject to public evaluation comment or hearing.
Plaintiffs make some contention that a final EIS, containing a separate "Addendum," is on its face procedurally defective. I find no procedural deficiency merely because additional information and/or recommendations or conclusions are contained in a final EIS by way of a separate addendum, attached to the final EIS. To the extent that a final EIS may validly include information not contained in the draft EIS or may alter or change the project from that proposed in the draft EIS, there is no logical reason to preclude utilization of n addendum in preference to rewriting and incorporating the additions and/or changes in the body of the final EIS under the appropriate headings and sections. Obviously, however, utilization of an addendum, as was done in this case, makes critical analysis by any interested person far more difficult and, the more extensive and detailed the changes by addendum, the greater the difficulty. Clearly, however, an addendum containing only some minor additional but perhaps essential information, data, discussion, assumption or change in plan ought not require an entire rewriting of an otherwise proper, completed final EIS, merely to incorporate such changes into the body of the final EIS.
The crux of the controversy over the Addendum is whether the Addendum so essentially and extensively alters the project in substance as to require the preparation of a supplemental EIS, with inevitable delay and continuation of controversy over the project. The pertinent federal regulation,7 effective April 1, 1980, provides:
(i) The final EIS shall be reevaluated by the HA [State Highway Agency] and the FHWA prior to proceeding with major project activities for the purpose of determining whether there has been a substantial change in the social, economic and environmental effects of the proposed action. If there are substantial changes in the proposed action that would significantly affect the quality of the human environment, a supplemental statement shall be prepared.
23 C.F.R. § 771.14(i) (1980).
A related regulation, effective April 1, 1980, provides:
A draft EIS or final EIS may be supplemented at anytime. Supplements will be necessary when substantial changes are made in the proposed action that will introduce a new or changed environmental effect of significance to the quality of the human environment or significant new information becomes available concerning the action's environmental aspects. The decision to prepare and process a supplement to the final EIS shall not void or alter FHWA approval of actions given prior to the decision, or void or alter previously authorized development of the highway section not directly affected by the changed condition or new information. A supplement is to be processed in the same manner as a new EIS (draft and final).
23 C.F.R. § 771.15 (1980).
Defendants contend in substance that, because the Task Force report comprising the Addendum intentionally "downscoped" the project in order to lessen the adverse environmental impact and to minimize environmental harm, in direct response to the concerns raised at the public and other meetings during the Draft EIS stage, a supplement is not required. See Defendant's Memorandum in Support of Motion for Summary Judgment, at 75-81 (Docket Entry #36).
I agree with defendants' contention that the determination as to whether to prepare a supplemental EIS should be governed by a "rule of reason." Piedmont Heights Civic Club, Inc. v. Moreland, 637 F.2d 430, 442 [11 ELR 20257] (5th Cir. 1981); Monarch Chemical Works, Inc. v. Thone, 604 F.2d 1083, 1087 [9 ELR 20679] (8th Cir. 1979). Additionally, I concur in the fundamental concepts expressed by Judge Fullam in Environmental Defense Fund v. Volpe, No. 70-2651, 72-419 (E.D. Pa., March 31, 1982). Judge Fullam ruled that a supplemental EIS is not required if elimination of portions of a project constitutes a modificaton rather than a substantial change, and such modification reduces adverse environmental consequences.8
In a somewhat analogous case, I ruled that an EIS was not required following a "negative declaration" where a change in the planned project substantially reduced the volume of water to be taken from the Delaware River and all of the claimed adverse environmental consequences were directly related to the quantity of water to be withdrawn. Delaware Water Emergency Group v. Hansler, 536 F. Supp. 26 [12 ELR 20845] (E.D. Pa. 1981), aff'd mem., No. 81-2622 (3d Cir. Mar. 19, 1982).
The Task Force report as contained in the Addendum and also as set forth in the "Task Force Basis Report," Defendant's Exhibits, Exhibit M (Docket Entry #37), contains sufficient information for a rational and logical, but not a necessary or inevitable, [13 ELR 20353] conclusion that adoption of the Task Force recommendations will in all respects reduce the overall adverse environmental impacts. The recommendations if adopted would, among other effects, (1) reduce the amount of land to be taken by a total of 143 acres (from the originally planned 997 acres); (2) reduce the corridor width for approximately half the length of the highway by decreasing the number of lanes from six to four; (3) reduce the land area required to be taken for interchanges; (4) eliminate the Sproul Road interchange; (5) eliminate 6,785 feet of stream bed location; (6) eliminate one Section 4(f) site by re-routing.
Although defendants contend the Task Force recommendations found in the Addendum will reduce adverse environmental effects, some of the recommendations may cause adverse environmental impacts to other sections of the highway. Solely by way of illustration, the elimination of the Sproul Road interchange may reduce adverse impacts in that area, but could well increase harmful effects at other interchanges caused by increased traffic on the approach and exit ramps. Reducing the number of lanes of travel likewise may have beneficial effects in reducing land area taking, but cause increased traffic density with resulting increase in noise, air pollution and accidents. Minor alignment adjustments may decrease Section 4(f) acquisitions and stream and floodplain encroachments, but adversely affect landowners who were previously unaffected.
More important than the hypothetical possibilities of additional adverse environmental impacts, no responsible official or agency has made an express finding or determination that adoption of the Task Force recommendations will cause no additional, increased or different harmful effects. The Task Force report contained in the Addendum, in substance, makes such a contention. Defendants plausibly argue that the Task Force recommendation will only decrease or lessen the adverse environmental impacts, and the record might indeed support such a finding if made by appropriate agency determination. A reviewing court, however, should not be called upon to make such a determination in the first instance, especially where the pros and cons of the Task Force report have never been subject to critical analysis by public comment or hearings.
FHWA regulations in effect when the Final EIS was approved in August, 1980, required that a supplemental EIS be prepared "when substantial changes are made in the proposed action that will introduce a new or changed environmental effect of significance to the quality of the human environment or significant new information becomes available concerning the action's environmental aspects." 23 C.F.R. § 771.15 (1980). Present FHWA regulations provide that supplements "will be necessary when there have been significant changes in the proposed action, the affected environment, the anticipated impacts, or the proposed mitigation measures." 23 C.F.R. § 771.129 (1981). Both the prior and present regulations required that a supplemental EIS "be processed" (1980 revision) or "be developed" (1981 revision) in the same manner as a new EIS (draft and final).
The regulations appear to be silent as to whether there must be formal agency action in any determination involving a decision to prepare or to not prepare a supplemental EIS. Ordinarily, if an agency makes revisions in the final EIS from the draft EIS without preparing a supplemental EIS, courts should give due deference to the agency's implicit determination that, under the law and regulations, a supplemental EIS is deemed by the agency to be unnecessary.
In the present case, the changes as to the Final EIS as contained in the Addendum are both substantial and based upon significant new information. Thus, under the regulations in effect in 1980, a supplemental EIS was required. None was ever prepared. Based on present day regulations, the Addendum makes "significant changes in the proposed action, the affected environment, the anticipated impacts, and the proposed mitigation measures." Any and all of the tests under any possible applicable regulation require a supplemental EIS.
No detailed examination of the record is required to reach the conclusion of significant, substantial changes. The Addendum self-styles the changes in similar language: "As a result of the Task Force study, there will be major revisions to the previously completed final design . . . ." Defendant's Exhibits, Exhibit O, Addendum (Docket Entry #37) (emphasis added). The Addendum further provides: "Expressway encroachments in stream valleys have been significantly reduced." Id. at 1 (emphasis added). Indeed, it would be almost self-evident that altering a proposed highway from six to four lanes for approximately one-half of its 16.9 miles length constitutes a substantial and significant change.
Likewise, quite clearly the changes in the proposed action result from new information that became available after preparation, not only of the draft EIS, but of the proposed final EIS as well, and hence were incorporated into the final EIS by way of an Addendum. Referring once more to the Addendum: "The Task Force recommendations are based on a more recent data base as far as the highway network and demographic and employment trends are concerned." Id. at 2 (emphasis added). Another portion of the Addendum amplifies: "[T]ransportation estimates reflect events such as transportation network changes, the energy crises, decline of the birth rate, and shifts in labor force. These events have significantly reduced the previous vehicle-mile projections for the region." Id. at 8 (emphasis added).The Addendum provides further: "The resulting year 2000 traffic projected for the Expressway was much lower for the facility recommended by the Task Force than the projection in the base final EIS. (Maximum ADT/s of approximately 67,000 and 94,000 respectively." Id. at 10 (emphasis added).
Thus, it is clear that the changes that were proposed by the Task Force and adopted and approved as a part of the Final EIS were (1) substantial and (2) based on new data and information. Under the regulations in effect in 1980, the only questions remaining would be whether the changes "significantly affect the quality of the human environment" (23 C.F.R. § 771.14(i) (1980)), or whether the changes "introduce a new or changed environmental effect of significance to the quality of the human environment" (23 C.F.R. § 771.15 (1980)) or whether the new data (traffic projections) concern the "action's environmental aspects" (23 C.F.R. § 771.15 (1980)).Under any of these tests it seems rather obvious that the changes will significantly alter environmental consequences, whether for the better or worse.
As previously noted, there are cases that hold that a reduction or minimization of adverse environmental impacts, brought about by a change in the project, does not require a supplemental EIS. As a matter of statutory construction this may be correct, provided the decreased harm is clearly established in the record and no new or additional adverse effects can occur. The regulations themselves, however, make no such distinction between decreasing or increasing adverse environmental impacts. This may well be a deliberate omission. The purpose of a supplemental EIS procedure is to permit the proposed changes and/or the new data to be subject to public scrutiny, comment and hearing so that there will be significant public participation in the decision-making process.
There are many cases that have considered the extent to which an adopted final EIS may vary from a draft EIS without requiring preparation and submission of a supplemental EIS for public comment. Counsel have reviewed many of these cases in their respective briefs. Each case depends for decison primarily on the facts of the particular case. The theme that consistently runs throughout all of the decided cases appears to be that a supplemental EIS is required where the decision-making agency has not provided the public with an opportunity, before the decision is made, to comment on important facts considered by the agency in making the decision, or where the changes are such that, if given an opportunity to be heard, public comment might reasonably be able to persuade the decision-maker to reach a different decision. The greater the change in the project, even where it is based on the same factual considerations as contained in the draft EIS, the more likely public comment would be able to shape and assist in the final decision-making process, by bringing to light new considerations. Even where there is no change in the planned project, where significant new information or data comes to light before the final decision is made, such should likewise be subject to public comment, if for no other reasons than to test the validity of the data and to receive comment as to how such information or data may suggest some change in the planned project.
Research has failed to disclose any case quite like the present [13 ELR 20354] one. In this case, there were substantial changes in the proposed project, presented in the Final EIS by way of an Addendum, which changes were based upon newly-obtained critically important data and information. Thus, under 23 C.F.R. § 771.15, a supplemental EIS was called for because there were both substantial changes in the proposed action and significant new information. A supplemental EIS was mandated if either condition arose.
Aside from the explicit requirements of the regulations, in this case public comment on the new data is important if the purpose and intent of Congress, as expressed in NEPA, are to be recognized and accepted. During the public hearings that were held in 1976 on the Draft EIS, the validity of the traffic and population-growth estimates were repeatedly challenged. Obviously, of course, an agency in its decision-making process should rely on the most recent and best available information. There is no substantial evidence in the record that PennDOT and FHWA failed to obtain the best available information.Nevertheless, the comments that were received were of necessity made and evaluated in light of the existing traffic estimates. Had the estimates that were ultimately contained in the Task Force report and Addendum been submitted for comment at a public hearing, it is reasonable to assume that other relevant comment would have been received. Whether, in fact, such would have altered the final decision is beside the point. NEPA imposes primarily procedural requirements upon governmental agencies, and one of a court's primary functions is to ascertain whether the procedures have been properly followed. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 547 [8 ELR 20288] (1978). Here they were not.
IV. Failure to Adequately Consider Alternatives
Plaintiffs contend that the Draft EIS, the so-called "base Final EIS," the Addendum and the Section 4(f) statement, both separately and in combination with each other, fail to consider adequately possible alternatives. They argue that the only alternatives considered were the "build" or "no-build" alternatives. This overstates a fair analysis of the documents. Changes in the final adopted plan as recommended by the Task Force reflect obvious consideration of alternatives to those recommended in the Draft EIS, which changes plaintiffs themselves contend are substantial. Throughout the Draft EIS, as well as the Final EIS, various alignment alternatives are discussed and considered, as well as alternative modes of transportation. Certainly, in any proposed highway project there are conceivable infinite alternatives. As an example, any highway that is to extend between points A and B may be designed in a direct straight-line route, an almost infinite number of arc-line routes, or in any number of curves, zigzags and other variations of circuitous routes.
Plaintiffs' primary contention as to inadequate consideration of alternatives concentrates on the failure to consider any possible corridor other than the Blue Route. The Draft and Final EIS with the Addendum, and the Section 4(f) Statement, appear to give little more than lip-service to corridors other than the Blue Route. This, however, is not surprising.
The Blue Route corridor was originally approved by the Federal Highway Administrator on June 12, 1963. This was long before enactment of statutes requiring the Secretary of USDOT to make a Section 4(f) determination as to parklands and historical site takings, and long before NEPA came into existence. There is nothing in the record to suggest that the selection of the Blue Route corridor, at the time it was approved in 1963, was either procedurally or substantively in violation of then-existing law, or otherwise legally deficient or improper.
The Federal-aid Highway Act that was in effect at the time of the approval of the Blue Route corridor required that the state highway department hold public hearings or provide an opportunity for such before obtaining federal highway aid. A public hearing was required to consider "the economic effect" of the highway location. If the highway involved an interstate highway, a hearing was required to enable persons in rural areas through or contiguous to whose property the highway would be located "to express any opposition they may have to the proposed location." 23 U.S.C. § 128. In 1968, the Federal-aid Highway Act was amended to include in the subjects to be addressed at any such public hearings,"the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community." 23 U.S.C. § 128(a) (Supp. 1982). Consideration must be given "to the economic, social, environmental, and other effects of the plan or highway location or design and various alternatives which were raised during the hearing or which were otherwise considered." Id.
Public hearings on the proposed Blue Route location were held on December 6-7, 1961. Approximately 1,500 persons attended the hearing in Delaware County and approximately 700 attended the hearing in Montgomery County. Comments were received and considered on a wide range of environmental concerns, in addition to the purely economic effects for which the hearing was required to be held. Defendant's Exhibits, Exhibit B, Draft EIS/Section 4(f) Statement, Section II at 15 (Docket Entry #37).
Following approval of the Blue Route in 1963, construction was commenced. Substantial portions were built. Of the 16.9 mile section involved in this litigation, at the time of the Draft EIS approximately 7 miles of the roadway (about one-third of the total length) had been constructed and approximately sixty percent of the rights-of-way acquired.9 Id. at Section I, page 2.
The history of the selection of the Blue Route corridor, combined with growth and development that had taken place in the other potential corridors after the selection of the Blue Route (as discussed in the Draft and Final EIS), explains why full and detailed consideration and discussion of possible alternative corridors were not contained in the Draft and Final EIS. Any realistic analysis of the project would lead to the conclusion that the only reasonable alternatives were to build within the approved Blue Route corridor or abandon the project. Because there was no realistic prospect that the decision-makers within the respective agencies (PennDOT and FHWA) would select and build in some new corridor, complete discussion of alternatives outside of the Blue Route was unnecessary. However, historical discussion of selection of the Blue Route as well as summary evaluation of alternative routes is set forth in the Draft and Final EIS. Under these circumstances, a detailed consideration of all of the comparative environmental effects of locating the highway in some alternative corridor should not be required in the EIS. The EIS should not exist for its own sake. The purpose of an EIS is to aid and assist governmental decision-makers in reaching informed decisions. To study in detail some theoretically possible alternatives that would be unacceptable to the agencies involved would be a waste of public funds and efforts. NEPA was not intended to require consideration of every hypothetical alternative, but only such alternatives as would provide adequate information for the decision-maker to consider fully the environmental consequences of the proposed action and any reasonable alternatives.
In Life of the Land v. Brinegar, 485 F.2d 460 [3 ELR 20811] (9th Cir. 1973), cert. denied, 416 U.S. 961 (1974), the Court stated:
NEPA's "alternatives" discussion is subject to a construction of reasonableness. N.R.D.C., Inc. v. Morton, supra, 458 F.2d at 834. Certainly, the statute should not be employed as a crutch for chronic faultfinding. Accordingly, there is no need for an EIS to consider an alternative whose effect cannot be reasonably ascertained, and whose implementation is deemed remote and speculative. Id. at 834. Rather, the EIS need only set forth those alternatives "sufficient to permit a reasoned choice." Id. at 836. This has been done. See also Committee for Nuclear Responsibility, Inc. v. Seaborg, supra, 463 F.2d at 787; Pennsylvania Environmental Council v. Bartlett, 315 F. Supp. 238, 250 (M.D. Pa. 1970).
Id. at 472.
In Vermont Yankee, supra, the Supreme Court added its approval to such a test of reasonableness:
[13 ELR 20355]
NEPA, of course, has altered slightly the statutory balance, requiring "a detailed statement by the responsible official on . . . alternatives to the proposed action." 42 U.S.C. § 4332(C). But as should be obvious even upon a moment's reflection, the term "alternatives" is not self-defining. To make an impact statement something more than an exercise in frivolous boilerplate the concept of alternatives must be bounded by some notion of feasibility. As the Court of Appeals for the District of Columbia Circuit has itself recognized:
"There is reason for concluding that NEPA was not meant to require detailed discussion of the environmental effects of 'alternatives' put forward in comments when these effects cannot be readily ascertained and the alternatives are demed only remote and speculative possibilities, in view of basic changes required in statutes and policies of other agencies — making them available, if at all, only after protracted debate and litigation not meaningfully compatible with the time-frame of the needs to which the underlying proposal is addressed." National Resources Defense Council v. Morton, 148 U.S. App. D.C. 5, 15-16, 458 F.2d 827, 837-838 (1972).
See also Life on the Land v. Brinegar, [supra], Common sense also teaches us that the "detailed statement of alternatives" cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement fails because the agency failed to ferret out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved.
435 U.S. at 551.
Although, of course, an alternate or different highway route or corridor would be neither uncommon nor unknown, as the Draft and Final EIS make clear, there was no likelihood of the decision-making agencies, i.g., PennDOT and FHWA, deciding to relocate the highway through some other corridor. Realistically, the only alternatives were those possible within the designated Blue Route corridor or a "no build" alternative. Only these alternatives were therefore required to be carefully discussed and presented in the Draft and Final EIS. Despite plaintiffs' many contentions to the contrary, I conclude that the "alternatives" were adequately considered and discussed in the Draft and Final EIS.
V. Failure to Hold Separate Corridor and Design Hearings
When the public hearings were held as to the selection of the Blue Route corridor in 1961, the public hearing requirements imposed upon the state agency seeking federal aid were to consider the economic effects of the location and to afford, as to interstate highways, certain affected persons in rural areas the right to express any objections to the proposed location. Consideration of environmental, social or other aspects were not expressly required until after the 1968 amendments to 23 U.S.C. § 128. Environmental impact statements were not required until the effective date of NEPA on January 1, 1970.
Likewise, it is clear that at least one of the major considerations in originally selecting the Blue Route over some of the other possible alternative routes was that it could be constructed through a less-developed area, specifically decause it would utilize public parklands for portions of the right-of-way, and thus be less costly. See discussion of "Alternatives," Final EIS, Sections V-2 through 8. Section 4(f) by statute reverses this type of consideration and mandates, in effect, that public parklands be encroached upon by federally-financed or aided highways only as a "last resort" born of necessity.
Plaintiffs argue that, wholly aside from this claim of inadequate consideration and lack of an opportunity for public comment on alternative corridors, once it was determined that the highway should be subject to the process of the FHWA preparing an environmental impact statement, federal regulations required new and separate corridor and design public hearings.
Present-day FHWA regulations require public hearings to consider a proposed highway corridor location, separate and apart from public hearings to consider design and details of alignment within a corridor. See 23 C.F.R. § 790.1-1-790.11 (1981). Before FHWA may approve a Federal-aid highway project, the responsible state highway department must hold a "corridor public hearing" wherein interested persons may present views on each of the proposed alternate highway locations and the social, economic and environmental effects of those alternate locations. After approval of the route location, a "highway design public hearing" is required, wherein interested persons may present views on major highway design features, including the social, economic, environmental and other effects of alternate designs. The dual hearings are for the purpose of affording interested persons an opportunity for effective participation in the decision-making process. 23 C.F.R. § 790.3(b)(2). The "Two hearing" requirement has in substance been in effect by FHWA and its predecessor agency since 1969.
Public hearings are required by NEPA in preparing an environmental impact statement. Plaintiffs contend that, since the Blue Route had not been constructed when NEPA came into effect, an environmental impact statement was necessary, and that this would require a new corridor public hearing as well as a design public hearing. In substance, plaintiffs argue that, despite approval of the Blue Route corridor by the federal Bureau of Public Roads on June 12, 1963, NEPA operates retroactively on that decision because public hearings are required for final approval of the highway design.
The Court of Appeals for the Third Circuit, in Township of Hopewell v. Volpe, 446 F.2d 167, 171-172 [1 ELR 20371] (3d Cir. 1971), held that, where highway location was approved prior to the change in 23 U.S.C. § 128(a) requiring public hearings to consider social effects and environmental impacts in addition to the earlier, more limited hearings as to economic effects, the statute would not be applied retroactively to require new hearings. By analogy, where, as here, location was approved prior to the "two hearing" regulations, merely because a "design" hearing became necessary in order to comply with NEPA, such does not perforce require an additional "corridor" hearing. Reconsideration of the approved corridor was not necessary.
The decision of the Third Circuit in Wildlife Preserves, Inc. v. Volpe, 443 F.2d 1273 [1 ELR 20316] (3d Cir. 1971), makes clear that, if a highway project was finally approved prior to the effective date of the change of 28 U.S.C. § 128(a) through a single hearing, no further corridor or design hearing would be necessary. In Hopewell Township Citizens I-95 Committee v. Volpe, 482 F.2d 376 [3 ELR 20693] (3d Cir. 1973), the Court squarely ruled that if design approval had been given prior to the effective date of the change in the law, no further hearings would be required; if such had not been approved, the statutory and regulatory scheme . . . would apply." Id. at 379.Plaintiffs contend that the 1976 hearings on the Draft EIS/Section 4(f) statement constituted a design hearing and, in any event, final approval by FHWA was not made until August, 1980. Consequently, plaintiffs assert that both a new corridor and a new design hearing will be needed.
Because a supplemental EIS will be required due to the substantial changes in the project based on the Task Force recommendations completed after obtaining updated traffic information and projections, further public hearing on the supplemental EIS will be required. The pertinent regulation requires both a corridor public hearing and a design public hearing as to a Federal-aid highway project. 23 C.F.R. § 790.5. However, a subsection of that regulation provides:
(g) With respect to any project for which a public hearing has been held under Federal-aid procedures, and for with it is determined by the State highway department and the Division Andministrator that a new hearing is desirable to consider supplemental information on social, economic, or environmental effects relative to proposals presented at a previous public hearing or with respect to additional proposals, then, as appropriate, a new corridor [13 ELR 20356] or design hearing should be held. When recommended by the State and approved by the Division Administrator, a new corridor hearing held in accordance with this section may be combined with the design hearing, whether or not a design hearing for the project has been previously held. In such instances, the location shall be reconsidered and a new request for location approval shall be submitted together with the request for design approval.
23 C.F.R. § 790.5(g).
Although I conclude that the location of the route corridor was properly approved prior to the two hearing requirement, because a further public hearing will be required, it is suggested that PennDOT and FHWA follow the procedures of 23 C.F.R. § 790.5(g) by combining and reconsidering both location and design in a single hearing. This would seem particularly appropriate because the Task Force recommendation does make some alignment alterations within the corridor that have never been subject to public comment. Although environmental concerns may have been expressed at the Blue Route location hearings held in 1961, the law then in effect mandated consideration only of economic effects. Consequently, a combined hearing, in connection with preparing a supplemental EIS, can provide for reconsideration on the full environmental impacts of the proposed highway location and design, including reasonable alternatives.
VI. Section 4(f) Statement
NEPA mandates that federal agencies give serious consideration to the environmental impacts of proposed major federal actions before proceeding. 42 U.S.C. §§ 4331-33. Although NEPA sets forth significant substantive goals for the nation, its mandate to agencies is essentially procedural. 42 U.S.C. § 4332. Vermont Yankee, supra, 435 U.S. at 558.
In contrast to NEPA, the so-called "Section 4(f)" determination to be made by the Secretary of USDOT before approving Federal-aid highways imposes imposes absolute substantive prohibitions. Pursuant to 49 U.S.C. § 1653(f) (1976) and 23 U.S.C. § 138 (Supp. 1982), before the Secretary of Transportation may approve "any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance," the Secretary must make a specific determination that (1) there is no feasible or prudent alternaive and (2) the program includes all possible planning to minimize ensuing harm. Under NEPA, federal action may proceed irrespective of the extent of vironmental harm, provided such harm is recognized and carefully and objectively considered. Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28 [10 ELR 20079] (1980). Section 4(f), on the other hand, acts as an absolute prohibition, absent the requisite and extremely narrow and stringent requirements of no feasible and prudent alternative and all possible minimization of harm. Regardless of all else, should the Secretary determines that there is some other feasible or prudent alternative, the project may not go forward. In addition, if the Secretary determines that some possible additional planning could minimize the ensuing harm to any extent, the project may not be approved. The Secretary has no discretion to waive these requirements.
One may seriously question how any responsible official could ever in good faith make the required determinations to permit under the statute a Federal-aid highway to use any public recreational parkland or any portion of a designated historic site.Obviously, however, Congress accepted the proposition that there could be situations where public parklands and/or historic sites could be utilized for a Federal-aid highway. Otherwise the statute would simply have flatly prohibited such use, without any exception. It is quite apparent, however, that situations in which such land could be used were intended by Congress to be few and far between. It would appear that parklands and historic sites should be used for new highways only in cases of dire necessity and as a last resort. At the very Least, the declared national policy, by the statute, is that "special effort" be made "to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges and historic sites." 49 U.S.C. § 1653(f) (1976); 23 U.S.C. § 138 (Supp. 1982).
These stringent substantive duties are imposed on the Secretary of Transportation. Obviously, any determination by the Secretary, acting upon appropriate information, should be given due deference by courts. The duty of the courts in passing upon the propriety of an affirmative Section 4(f) determination by the Secretary was thoroughly analyzed in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 [1 ELR 20110] (1971). In Overton Park, the Court ruled, inter alia, that "only the most unusual situations are exempted." Id. at 411. The Secretary does not have any wide-ranging discretion. "[T]he Secretary is not to limit his consideration to information supplied by state and local officials but is to go beyond this information and reach his own independent decision." Id. at 412 n.28. Protection of parkland is to be given paramount importance. Public parks may be used only if there are "truly unusual factors present in a particular case or the cost or community disruption resulting from alternate routes [reaches] extraordinary magnitudes." Id. at 413. Use of parklands is limited to situations "where there are no feasible alternative routes or where feasible alternative routes involve uniquely difficult problems." Id. at 416.
The Assistant Secretary for Policy and International Affairs and the General Counsel of the Department of Transportation both signed a "concurrence" to the Section 4(f) Statement contained along with the Final EIS.10 Insofar as the record discloses, the only basis for the Section 4(f) determination is information contained in the Draft EIS/Section 4(f) Statement and the Final EIS with Addendum, Section 4(f) Statement. There is no evidence that the Secretary went beyond the information supplied to reach his own independent decision.
Primary among plaintiffs' contentions as to the inadequacy of the Secretary's Section 4(f) determinations is the lack of a full consideration of possible alternative routes contained in any of the materials. As previously discussed, I have concluded that, for purposes of NEPA requirements, because a corridor route was properly selected prior to the effective date of NEPA and prior to adoption of the "the hearing" regulations for corridor and design hearings on Federal-aid highways, there was adequate consideration of alternatives. This, however, does not solve the problem as to whether the Secretary, in making his required independent Section 4(f) determination, adequately considered alternatives. A review of the history of the selection of the Blue Route corridorand a show summariation of the reasons for such selection are set forth in both the Deaft and Final Section 4(f) statements attached to the Draft the Final EIS documents. As pointed out in defendants' memorandum in support of their motion for summary judgment (Docket Entry #36 at 88), a portion of the Section 4(f) Statement provides:
Alternative Corridor Locations — During the course of this and previous studies, numerous alternative locations were studied. The selection of any of these locations would entail significant disruptions in local communities, numerous residential and business relocations, adverse effects on established business patterns, and adverse effects on local long-use planning. They are therefore not considered reasonable alternatives to the project.
Defendant's Exhibits, Exhibit C, Final EIS/Section 4(f) Statement at 8. (Docket Entry #37).
Assuming that all of the above quoted passage is established as fact, and fully supported by the underlying studies, such neither individually nor cumulatively meets the standards set forth in Citizens of Overton Park, supra, 401 U.S. at 111. In Overton Park, the Supreme Court stated: "This language is a plain and explicit bar to the use of federal funds for constructuion of highways through parks — only the most unusual situations are exempted." Id.
The Supreme Court stated further:
[13 ELR 20357]
But the very existence of the statutes statutes indicates that protection of parkland was to be given paramount importance. The few green havens that are public parks were not to be lost unless there were truly unusual factors present in a particular case or the cost or community disruption resulting from alternative routes reached extraordinary magnitudes. If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems.
Id. at 412-13 (footnotes omitted).
The articulated basis for selection of the Blue Route with its taking of Section 4(f) lands, as opposed to other possible corridor routes, is because choice of other alternatives would result in (1) significant disruption in local communities, (2) numerous residential and business relocations, (3) adverse effects on established business patterns, and (4) adverse effects on land-use planning. Certainly those reasons do not constitute "unique problems," or a "most unusual situation" or "truly unusual factors." Indeed, these summarized reasons for not considering in greater detail possible alternative routes that could totally eliminate Section 4(f) lands are merely a recital of those "significant" disruptions that would appear to inevitably result from any major new highway right-of-way construction.
Overton Park teaches that, although the Secretary's decision is "certainly" entitled to a presumption of regularity and the Secretary is not required by statute to make formal findings,11 a court must make a thorough, probing, in-depth review where the action is challenged. The court must consider whether the Secretary properly construed his authority as being limited to approving use of parklands to situations where there are no feasible alternatives or where alternatives unique problems.
Although in this casethe Secretary's decision to approve use of Section 4(f) lands was made after the decision in Overton Park and, therefore, presumedly made with the requirements of the Supreme Court in mind, so far as a consideration of alternative routes outside of the Blue Route corridor, the Section 4(f) Statement leaves at best grave doubts that the Secretary properly exercised this authority.
Although NEPA requires agency consideration of alternatives to proposed federal action, 42 U.S.C. § 4332(c)(iii), if fairly and objectively considered, federal action may proceed despite there being preferable alternatives having less harmful environmental impacts. As to Section 4(f) lands, however, the Department of Highway Act of 1966, as amended, and the Federal-aid Highway Act of 1968 absolutely preclude approval by the Secretary of the use of parklands and historic sites for federally-supported highways, except where the strict conditions are met, i.e., that there is no feasible and prudent alternative and all possible planning to minimize harm is incorporated into the highway program. Although by statute it is the Secretary's responsibility to make the Section 4(f) determination if there is any taking of Section 4(f) lands for highway construction, the Secretary has no discretion to weigh or blance cost, safety considerations and other factors concerning alternative feasible routes to decide with route is the most "prudent." Overton Park, supra, 401 U.S. at 411.
The words "feasible" and "prudent" lack a precise method of objective analysis. For this reason, where the record discloses that the Secretary has carefully considered alternate routes and the underlying engineering and environmental problems involved with them, the Secretary's judgment and determination, although nondiscretionary, should not be lightly set aside. Significantly, in Overton Park, the Supreme Court remanded with directions that the district court conduct a plenary review of the full record before the Secretary at the time he made his decision, with the possibility left open that the court might require "some explanation" to determine if the Secretary acted within his authority and if the action was justifiable under the applicable standard. Id. at 420.
As previously noted, a supplemental EIS will be required. Should this result in some additional Section 4(f) lands being used,12 or a change in their use, undoubtedly another Section 4(f) determination will have to be made by the Secretary. Altheough the Secretary's Section 4(f) concurrence to the prepared Section 4(f) statement was based on the updated traffic estimates as contained in the Task Force recommendations set forth in the Addendum, and therefore not inadequate as based on outdated or erroneous information, a new Section 4(f) Statement should be prepared and circulated with the supplemental EIS.
Should the Secretary determine, after an objective consideration, that there is no feasible and prudent alternative to use of the Section 4(f) lands, including possible alternate routes outside of the Blue Route corridor, and that the Blue Route should be approved, it is strongly recommended that formal findings of fact be made with a clear and thorough explication of the determination, setting forth in detail why there is no feasible and prudent alternative. Otherwise, in the event of subsequent judicial review, the Secretary may be required to submit to examination in an adversarial judicial proceeding — a course of action that is usually to be avoided. Id.
The present Section 4(f) Statement in its final form is inadequate. It fails to establish that there is no feasible and prudent alternative. The matter will be remanded to the Secretary with direction to prepare and circulate, in accordance with present regulations, a new Section 4(f) Statement and to make a Section 4(f) determination prior to proceeding with the project.
VII. Floodplain Encroachments
Because the proposed highway will follow along or near portions of the valleys of the Ithan, Darby and Crum Creeks, certain encroachments in, over and along the streams and their respective "floodplains" will occur.
Presidential Executive Order 11988, issued pursuant to NEPA and other statutes, published in 42 Fed. Reg. 26951, May 24, 1977, required that before any federally funded highway could be "located in a floodplain," the "head of the agency" must determine that there is no "practical alternative consistent with the law and with the policy set forth in this order." The Order further required that the agencies involved provide for public comment on proposed floodplain excroachment projects.
Regulations adopted by FHWA, implementing Presidential Executive Order 11988, interpreted the Order as applying only where there is a "significant" floodplain encroachment. See 44 Fed. Reg. 67580 (November 26, 1979); 23 C.F.R. Part 650, Usbpart A; 23 C.F.R. § 650.105(q). These regulations, in substance, define a "significant" floodplain encroachment as one having a significant potectial to interrupt or terminate a highway needed for emergency purposes or as an evacuation route, or presenting a significant risk, or having a significant adverse impact on natural and beneficial floodplain values. "Risk" is defined as "the consequences associated with the probability of flooding attributable to an encroachment" including the potential for property loss. 23 C.F.R. § 650.105(o).
The Task Force Report contained in the Addendum expressly states "A 'Flood Plain Finding' per the requirements of Executive Order 11988 is not required as there will be no significant risk, and the encroachment will not cause significant adverse impacts on natural and beneficial flood plain values." Defendant's Exhibits, Exhibit C, Final EIS/Section 4(f) Statement, Addendum at 7. The Final EIS and Addendum discuss in considerable detail the floodplain encroachments, their potential for causing property or other damage or harm, and the measures takento mitigate any potential adverse effects.
Plaintiffs argue that the FHWA regulations are invalid because: (1) the Executive Order is mandatory and absolutely forbids highway encroachments of floodplains irrespective of the extent [13 ELR 20358] of the encroachment or the size of the streams or the potential for harm unless "there is no practical alternative," and (2) FHWA has no authority to exempt minor encroachments from the Executive Order's requirements.
In partial response to plaintiffs' contentions as to FHWA's failure to comply with Executive Order 11988, defendants counter that (1) there is no private cause of action for an agency violating an Executive Order and (2) that the FHWA interpretive regulation is reasonable and valid, especially where the Executive Order allows encroachments where there is no practical alternative consistent with the law and policy set forth in the Order.
Any public highway that can be located in Southeastern Pennsylvania that traverses several miles without crossing or encroaching upon the floodplain of some small stream is indeed difficult to visualize. Highways must at least cross streams at many places and points if they are to exist at all. Wherever there is a crossing, some floodplain encroachment, if only by piers supporting an aerial roadway, is almost inevitable. Undoubtedly Executive Order 11988 was to prevent unnecessary and excessive floodplain encroachments that would cause environmental harm or present some potential for flood or other damage that could be avoided by some practical alternative.
The FHWA regulation, facially, at least, appears to be entirely consistent with law and with the policy expressed in Executive Order 11988. Likewise, the finding contained in the Addendum to the Final EIS, that FHWA determined under its regulations that no "floodplain finding" was required, is a valid interpretation of its regulations. I, therefore conclude that the issue of whether plaintiffs may assert a private cause of action for agency noncompliance with an Executive Order need not be decided in this proceeding.
In addition, because a supplemental EIS will be required, which of necessity will require a re-evaluation of the entire project based on the more recent data and possible alternatives to taking Section 4(f) lands by use of some alternate corridor, and will require further public participation, a re-evaluation of the floodplain encroachments will probably become necessary. Consequently, a more detailed analysis at this time of the respective parties' arguments concerning the "floodplain encroachments" would not serve a useful purpose.
VIII. Plaintiffs' Ninth Count (State Claim)
Defendants seek dismissal of plaintiffs' Ninth Count or claim for felief. Plaintiffs have not moved for summary judgment as to this count.
Court Nine alleges that the proposed highway construction violates Section 302 of the Pennsylvania Flood Plain Management Act, PA. STAT. ANN. tit. 32 § 679.302(b) (Purdon Supp. 1981). This statute provides, inter alia, that, before any highway may be constructed within the 100-year floodplain of any stream, a permit must be obtained from the Pennsylvania Department of Environmental Ressources. Plaintiffs contend, and defendants do not dany, that the planned highway will require certain construction within the 100-year floodplain areas of certain of the streams and that no permit has been secured or sought for such contruction. Defendants contend that, until and unless some construction is commenced within a 100-year floodplain area, there is no issue to be decided and that, if under the law a permit is required, one will be obtained before any construction commences.
An "aggrieved" party has a statutory right under state law to bring an action to restrain a violation of the statute. PA. STAT. ANN. tit. 32 § 679.502(b) (Purdon Supp. 1981). Whether such an action may be maintained in federal court against a state official or state agency, in the federal court's exercise of pendant jurisdiction, presents difficult issues. Assuming, without deciding, that plaintiffs could maintain this cause of action in this court, the issue is clearly no "ripe" for decision. The right of civil action, by statute, is only to "restrain, prevent or abate violation of" the Act. Even then, the statute strongly suggests that an appropriate remedy is merely to "fix a reasonable time" within which to correct the violation. PA. STAT. ANN. tit. 32 § 679.502(b) (Purdon Supp. 1981). No cause of action exists. There is no violation alleged and defendants have stated that a permit will be obtained. Thus, there is no threatened violation to be "prevented" The mere possibility that the state might seek to proceed with construction without obtaining a permit is an insufficient basis upon which to assert this claim for relief. Injunctive or declaratory relief cannot be granted on the basis of the allegations of the complaint. This cause of action will be dismissed.
As with the issues concerning Executive Order 11988, because a supplemental EIS must be prepared, which may or may not ultimately result in a substantially altered final plan as to floodplain encroachments, any attempt to determine whether the present plan violates Executive Order 11988 and/or requires a construction permit for floodplain encroachments from the Pennsylvania Department of Environmental Resources would be premature and ineffective.
Defendants, subsequent to extensive oral argument in open court on the outstanding cross-motions for judgment, submitted an unsolicited supplemental memorandum. In that memorandum, defendants continue to attempt to raise as an issue the intent and motive of plaintiffs in proceeding with this litigation. Defendants assert that the sole purpose is to prevent the Blue Route from ever being built and to cause such delay that, at a minimum, federal funding will be lost.
No scientific study or empirical evidence or datum need be gathered for one to conclude that in many if not a vast majority of civil actions filed to contest agency compliance with NEPA and related environmental statutes, the ultimate goal of the plaintiffs is to prevent the proposed federal action or project from ever being completed. No doubt plaintiffs frequently, if not generally, seek to protect their own economic and other self-interests. Rarely, perhaps, do they proceed from purely altruistic motives to protect the public welfare and assure full and complete compliance with the letter and spirit of the environmental laws. A normal strategy by those challenging governmental action may well be to cause delay.
Congress was unquestionably aware that NEPA and related federal environmental laws would inevitably cause delay before there could be federal agency action. Litigation, with its concomitant costs, frustrations and delays must have been foreseen. Stringent requirements were imposed by statute and regulation upon the procedures to be utilized prior to the commitment of federal funds toward the construction of Federal-aid and interstate highways. No doubt Congress appreciated that, in some instances, there would have to be abandonment of projects that required years of planning. Whether Congress wisely or foolishly provided private litigants with such potent weapons to hinder, delay and prevent projects which governmental agencies seek or want to complete is a matter for the legislative branch of government to decide — not for the judicial branch. Nothing in NEPA or any of the statutes upon which plaintiffs rely suggests that only the righteous and pure of soul may enforce the nation's environmental laws and challenge in court agency action alleged to violate such laws.
Equally obvious, the issues before the court concern whether the mandates of the statutes have been complied with by the federal and state agencies involved. The number of persons favoring the project compared with those opposing the project is not relevant to the issues. Assuming that a single individual has a sufficient personal stake in the outcome as to afford standing to maintain an action, theoretically a single individual might indeed successfully prevent a massive federal project that otherwise would meet with universal citizen approval.
The Blue Route has been on the "drawing board" for many years, indeed for decades. Tremendous amounts of time, effort and money have been expended on the project. A great many responsible individuals, local, state and federal officials and agencies, corporate and other business entities, labor organizations, private and civic associations, and others sincerely urge completion of the Blue Route as promptly as possible. Others oppose the plan. Any new highway connecting I-95 and the Pennsylvania Turnpike by a route extending through suburbs to the west of Philadelphia will have extensive environmental and economic impacts on the entire region. Unanimity of opinion as to the merits of such a highway can never be hoped to be achieved. Congress [13 ELR 20359] has by law specified procedures and substantive considerations which federal agencies must follow before approving such a plan and committing the use of federal funds. The court's authority is limited to determining whether the agencies have complied with the law and, if not, to provide an appropriate remedy.
I conclude that a supplemental EIS must be prepared. FHWA regulations direct that a supplemental EIS "is to be developed in the same manner . . . as a new EIS (draft and final, with a ROD [record of decision])." I further conclude that the Secretary of Transportation of the United States, or his duly delegated and authorized representative, must redetermine whether there is any feasible and prudent alternative to the use of the proposed Section 4(f) lands, including consideration of use of land outside of the Blue Route corridor. Otherwise, federal funds may not be utilized or committed toward completion of the Blue Route.
Undoubtedly, this will cause extensive delay and great additional public expense. Unfortunately, this is the price that, under the laws enacted by Congress, the public must pay before the Blue Route project may be completed.
In accordance with and for the reasons stated in the opinion filed contemporaneously with this order, it is ordered that:
(1) Plaintiffs' "Ninth Claim For Relief" in Civil Action 81-4627 is dismissed.
(2) Plaintiffs' motions for summary judgment are granted.
(3) Defendants' motions for summary judgment are denied.
(4) The defendant, Drew Lewis, Secretary of Transportation of the United States, is restrained and enjoined from proceeding in any way including providing any financial aid toward the construction or completion of the Mid-County Expressway, also identified as I-476 and L.R. 1010 and frequently known as the Blue Route, until and unless a Supplemental Environmental Impact/Section 4(f) Statement is prepared and approved by the appropriate officials and agencies in accordance with existing statutes, regulations and law; and further, until and unless the said defendant, Secretary of Transportation of the United States, or his duly delegated and authorized representative, makes, upon reconsideration, the requisite determinations as to the use of any Section 4(f) lands included in the final plan.
(5) The defendant, Thomas D. Larson, Secretary of Transportation of the Commonwealth of Pennsylvania, is restrained and enjoined from causing to be used any federal funds or funds heretofore or hereafter received from the Treasury of the United States or any federal agency, directly or indirectly, for the construction or acquisition of rights-of-way for any incomplete portion of the Mid-County Expressway, also identified as I-476 and L.R. 1010 and frequently known as the Blue Route, until and unless a Supplemental Environmental Impact/Section 4(f) Statement is prepared and approved by appropriate officials and agencies in accordance with existing statutes, regulations and law, and the proper Section 4(f) land-use determinations are made by the Secretary of Transportation of the United States or his duly delegated and authorized representative.
1. The denomination "Blue Route" originated from early planning maps that drafted alternative corridor proposals in different colors. Apparently there were originally proposed "Green," "Red" and "Yellow" routes. The "Blue Route" was the final result of later studies that attempted to work out a more acceptable resolution as to the appropriate corridor location.
2. The consent decree provided, inter alia, that:
1. The FHWA (Federal Highway Administration) will not grant a "proposed FHWA authorization" (as defined below) without an FHWA NEPA (National Environmental Policy Act, 42 U.S.C. §§ 4321-61) reassessment (as described below) with respect to any Federal-aid highway section (a) of which a State HA (Highway Agency) requests a "proposed FHWA authorization" on or after January 1, 1974, (b) which is "a major Federal action significantly affecting the quality of the human environment," and (c) for which an environmental statement has not been filed with the Council on Environmental Quality.
Plaintiff's Motion for Summary Judgment, Exhibit B (Docket Entry #19).
3. Plaintiffs do not contend that there were any procedural deficiencies in the public notice or the hearings that were held on the Draft EIS/Section 4(f) Statement or that there was any lack of opportunity to be heard and to express viewpoints.
4. I find no statutory or regulatory authorization for recognition of, nor definition of, a "base Final EIS." It appears to be an innovative nomenclature devised by bureaucratic invention for the sake of expediency.
5. ADT refers to average daily traffic expressed in number of vehicles. Final EIS/Section 4(f) Statement, Section II at 2.
6. Plaintiffs' "Ninth Claim For Relief," seeking injunctive relief because defendants have not obtained under State law a required permit from the Pennsylvania Department of Environmental Resources (DER) for constructing a highway within a 100 year floodplain area, is not subject to plaintiffs' motion for summary judgment, but is subject to defendants' motion to dismiss and for summary judgment.
7. The regulations in effect when the Final EIS/Section 4(f) statement was submitted for approval by the Secretary of USDOT (as to Section 4(f) determinations) and FHWA (as toapproval of the Federal-aid Highway project) would appear to be the regulations to apply in determining whether a supplemental EIS is required. However, the regulations as to necessity for and procedures to follow in preparing a supplemental EIS have remained substantially the same during any possible applicable determinative time.
8. It should be noted that Judge Fullam, by a prior order dated April 25, 1974, did remand the cited action to the Secretary of USDOT for reconsideration of the Section 4(f) determinations, and further directed new public hearings if "new information contained in the final Impact Statement so requires." The decision of March 31, 1982, cited by defendants, followed the administrative action taken upon the remand to the Secretary of USDOT.
9. The Addendum to the Final EIS states that, as of the date of the report, approximately 5.1 miles or thirty percent of the 16.9 miles involved in the EIS study had been completed and approximately two-thirds of the rights-of-way acquired.
10. The Assistant Secretary for Policy and International Affairs of the Department of Transportation is delegated the authority to "Oversee the implementation of Section 4(f) . . . and concur in determinations under Section 4(f) . . . ." 49 C.F.R. § 1.56(b) (1981). Although plaintiffs make reference to a lack of any specific determination in the wording of the statute, a "concurrence" determination was apparently also utilized in Overton Park, supra at 407, without adverse comment by the Supreme Court. Such a "concurrence" pursuant to regulations constitutes the requisite determination and action by the Secretary.
11. But see Overton Park, supra at 417 n.31.
12. Plaintiffs argue that a Section 4(f) determination must be made if a proposed highway will have any adverse environmental effect on any Section 4(f) lands, even if there is to be not "taking" of such land. Although resolution of this issue is not essential to this decision, I disagree with plaintiffs. The statute is applicable only to "any program or project which requires the use of" Section 4(f) lands. Undoubtedly "use" means a physical use or a utilization of some incident of ownership. To further extend the statutes' protections to any Section 4(f) land affected by a highway would present chaos in determining when and how far to include Section 4(f) lands. Purely as an example, a highway might environmentally affect a public park by grantly increasing usage of the park by the public due to easier means of access over a new highway many miles away.
13 ELR 20349 | Environmental Law Reporter | copyright © 1983 | All rights reserved