2 ELR 20068 | Environmental Law Reporter | copyright © 1972 | All rights reserved

Scherr v. Volpe

71-C-347 (W.D. Wis. December 7, 1971; December 29, 1971)

Construction and further development of a federally assisted highway is preliminarily enjoined in a suit alleging the Secretary of Transportation's noncompliance with the National Environmental Policy Act (NEPA). Defendants' motion to suspend the preliminary injunction is denied because it appears that plaintiffs will be able to show that the highway undertaking is a major federal action which will significantly affect the environment, and that defendants' failure to comply with NEPA invalidates their approval of the highway undertaking.

Counsel for Plaintiffs
Frederick H. Miller
222 South Henry Street
Madison, Wisconsin 53703

Counsel for Defendants
John O. Olsen U.S. Attorney
United States Courthouse
Madison, Wisconsin 53703

[2 ELR 20068]

Doyle, J.


Plaintiffs have moved for a preliminary injunction in the above entitled action to enjoin defendants from engaging in any and all further construction or development of the State Highway 16 construction project at or near Hartland, Wisconsin, to run from Oconomowoc to Pewaukee, Wisconsin, including any alteration of the natural habitat of said area; and specifically to enjoin them from constructing or excavating in the area for said project until a final determination of this action.


For the purpose of the motion for a preliminary injunction, and only for such purpose, I find as fact the propositions stated in this section of this opinion. These findings are based on the record to date.

Plaintiffs are residents of the Village of Hartland, Wisconsin, and are members of various conservation and environmental organizations whose concern it is to conserve the material resources, aesthetic qualities and recreational values of areas such as the Lake Kettle Moraine area, in which the disputed highway is situated.

The present Highway 16 is to be converted from a 2-lane conventional highway to a 4-lane freeway over a length of approximately 12 miles. This portion of the state trunk highway system has been determined to be presently inadequate and deficient in providing safe and reasonable operating service to the motorists of southeastern Wisconsin. The project requires the acquisition of additional right of way throughout to provide for adequate width, frontage road and interchange construction. The project is part of a federal-aid highway program and is jointly financed and supervised by the Federal Highway Administration and the State of Wisconsin.

[2 ELR 20069]

The construction project is located in the Lake Kettle Moraine area which contains: eleven lakes, two major rivers and their watershed and flood plains; wetlands located just west of the Village of Pewaukee and in and around the county park at Forest and Grass Lakes; the Kettle Moraine forests and other woodlands; wildlife habitats; ice age geological formations and rough topography unique to the Kettle Moraine area.

The immediate effects of the construction now in progress include damage to present natural habitats of various wild animals; stripping of forested land with attendant erosion problems; increased levels of noise, air and water pollution; impingement upon the aesthetic natural beauty and recreational value of the area.

An environmental impact statement (of the kind described in 42 U.S.C. § 4332(2)(C)) has not been filed by the Federal Highway Administration.


Jurisdiction is present.28 U.S.C. § 1331, 5 U.S.C. §§ 701-706.

Plaintiffs contend that the federal defendant Volpe and his federal subordinate officials failed to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C) (hereinafter NEPA) in connection with the highway project.

Plaintiffs have standing to sue. Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970); Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608, 616 (2d Cir. 1965). I find that a real controversy exists between the plaintiffs and defendant in this action and that the aesthetic, conservation and recreational interests asserted by plaintiffs lie "arguably within the zone of interests to be protected by the statute . . ."1 See Data Processing, supra, 397 U.S. at 153.

Since 42 U.S.C. § 4332 does not expressly provide for judicial review of agency actions, I must look to the Administrative Procedure Act, 5 U.S.C. 701-706. [Hereinafter "APA"] The APA grants standing to a person "aggrieved by agency action within the meaning of the relevant statute . . ." 5 U.S.C. § 702. That interest may at times reflect "aesthetic, conservational, and recreational" as well as economic values. Data Processing, supra, 397 U.S. at 154 (citing Scenic Hudson Preservation Conf. v. F.P.C., 354 F.2d 608, 616; Officer of Communication of United Church of Christ v. F.C.C., 123 U.S. App. D.C. 328, 334-340, 359 F.2d 994, 1000-1006).

The amount in controversy is alleged to exceed $10,000, exclusive of costs and interest. In injunctive actions, the amount in controversy is not the amount that the plaintiffs might recover at law, but the value of the right to be protected or the extent of the injury to be prevented. 1 Barron & Holtzoff, Federal Practice and Procedure (Wright ed.), § 24 n. 54. Absolute certainty as to amount is not essential.I find that there is a present probability that the value of the matter in controversy will exceed the jurisdictional amount. 1 Barron & Holtzoff, Federal Practice and Procedure Wight ed.), § 24, n. 50.4.

Section 4332(2)(C) provides as follows:

"(2) all agencies of the Federal Government shall —

(c) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of longterm productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented."

The basic issue presented is whether the Federal Highway Commission was required to file an impact statement under 42 U.S.C. § 4332(2) (C); that is, whether the project is a "major Federal action significantly affecting the quality of the human environment."

As evidence of a reasonable interpretation of 42 U.S.C. § 4332(2)(C), NEPA, I turn to the U.S. Department of Transportation, Federal Highway Administration Policy and Procedure Memorandum [herinafter "P.P.M. 90-1"] dated August 24, 19712

Appendix F of P.P.M. 9-1, which deals with "Evaluating Highway Section Environmental Effects", states as follows:

"1. Draft and final environmental statements should be prepared and processed in accordance with the procedures required by this memorandum for all highway sections falling under one or more of the following three categories:

* * *

c. Highway sections which are classed as major actions and are also likely to significantly affect the quality of the human environment. This category requires a two-step analysis. First, it must be determined if the proposed highway section is a major action (paragraph 2 of this Appendix); secondly, the significance of the effects upon the human environment must be determined (paragraph 3 of the Appendix)." (emphasis in original).

Paragraph 2 of Appendix F of P.P.M. 90-1, states as follows:

"2. The following should be used to determine whether a proposal to construct or improve a highway section is a major action.

* * *

b. Major up-grading of an existing highway section resulting in a functional characteristic change (e.g., a local road becoming an arterial highway). Such changes usually result by adding lanes, interchanges, access control, medians, etc., and require extensive right-of-way acquisition and construction (grading, base, paving, bridges, etc.) which have the potential of significantly affecting the human environment."

I conclude that plaintiffs have a reasonably good chance of ultimate success on the merits of their contention that defendants failed to comply with the mandate of 42 U.S.C. § 4332(2)(C).

I have found as facts for purpose of this motion for a preliminary injunction that certain effects will flow from the immediate reconstruction of Highway 16. (See section entitled "Facts", supra.) I find now for purposes of this motion that these effects will injure the "aesthetic, conservational and recreational" interests asserted by plaintiffs, if construction work is allowed to continue, and that such injury is substantial. I find further that the continuing construction work by defendants and those working in concert with them, if allowed to continue, will make it impossible to restore the area in question to its previous environmental status. Thus, plaintiffs' rights would be sacrificed before a complete [2 ELR 20070] hearing and determination on the merits of their contention. The purpose of granting the preliminary injunction is to preserve the subject matter of this controversy in its existing condition.

Accordingly, for the reasons stated above and on the basis of the entire record herein, defendants, their officers, employees, agents, servants and all other persons in concert or co-operation with them or at their direction, are hereby restrained and enjoined until further order of the court from engaging in any and all further construction or development of the Highway 16 construction project at or near Hartland, Wisconsin; and specifically from constructing or excavating in the area for said highway construction project.


Defendants Clapp, Redmond, and Banaszak have moved for an order suspending the preliminary injunction1 entered herein December 7, 1971, and the motion has been briefed and heard. The record has been supplemented since December 7, 1971, with various exhibits and affidavits. For the purpose of deciding the motion to suspend the preliminary injunction, and only for that purpose, I reaffirm the findings of fact contained in the December 7, 1971, order, and additionally I find as fact the propositions stated in the section of this opinion which follows immediately.


On or about January 21, 1971, the Division of Highways of the Department of Transportation of the State of Wisconsin (hereinafter "State") concluded that an environmental statement of the kind described in 42 U.S.C. § 4332(2) (C) was not required with respect to the 12 mile project here in dispute, and the Wisconsin Division of the Federal Highway Administration (hereinafter FHWA) joined in this conclusion. The record is silent as to the basis for this conclusion, and it appears that no explanation was recorded as to why the project was not considered a "major federal [action] significantly affecting the quality of the human environment . . . ." Thereafter FHWA authorized the State to proceed to advertise for bids and to enter into certain contracts for construction; the State proceeded to enter into contracts covering a 4.1 mile segment of the total project; construction on this segment had begun and was in progress at the time the December 7, 1971, injunction was entered.

Among the effects of the injunction have been the following: This 4.1 segment of the highway has been left unimproved and there continues in existence certain hazards to the physical wellbeing of users of the highway arising from its traffic load. A substantial number of employees of several contractors have been deprived of a substantial amount of wages which they would otherwise have received for work to be performed on this project. Two or more of the contractors have suffered substantial financial loss. I take judicial notice, from various petitions and letters submitted to the court, that a substantial number of the residents of the affected area desire that the highway project proceed without further delay.


Although a number of contentions have been advanced by the movants for suspension of the preliminary injunction, two appear to be major.

The first is that under 42 U.S.C. § 4332(2)(C), the federal administrative agency (here, the FHWA) enjoys discretion to determine whether a particular project is "major" and whether it is a project "significantly affecting the quality of the human environment"; that FHWA has exercised this discretion by determining that this particular project does not meet these tests; that this administrative determination is not to be overturned by a court unless it is arbitrary and unreasonable; and that this particular administrative determination was neither arbitrary nor unreasonable.

I cannot accept this contention.

Of course, it is familiar that Congress may delegate certain functions to administrative agencies, that the agencies may then exercise the discretionary powers granted to them, and that a specific administrative exercise of such discretionary powers is to be respected by the courts unless it is arbitrary or unreasonable. But § 4332(2)(C) is a flat command to FHWA, to the fullest extent possible, to make a detailed statement on five specific environmental factors in connection with all "major federal actions significantly affecting the quality of the human environment . . . ." Obviously, FHWA and other federal agencies are called upon to decide what § 4332(2)(C) requires of them in certain situations. FHWA may form an opinion that a particular project is not major, or that it does not significantly affect the quality of the human environment, and that, therefore, FHWA is not required to make the detailed environmental statement. However, when its failure is then challenged, it is the court which must construe the statutory standards ("major" and "significantly affecting") and, having construed them, then apply them to the particular project, and decide whether the agency's failure violates the Congressional command.

Even if we were to assume, as I emphatically do not assume, that FHWA enjoyed some measure of discretion as to whether to prepare or not to prepare the environmental statement, I would be prepared to say that the plaintiffs here are likely to prevail in their contention that the particular exercise of that discretion was arbitrary and unreasonable.It is difficult to understand how FHWA might have reached the conclusion that this project was not "major", or the conclusion that the project does not significantly affect the quality of the human environment. It appears that no explanantion for either of these conclusions was recorded at the time they were reached, nor has any explanation since been offered, even by counsel in argument. Nor has any contention been made that anything rendered it impossible, or even particularly difficult, to comply with the Statute.

The second major contention by the movants for suspension of the preliminary injunction may be summarized as follows:

Assume that a project is major. Assume that it significantly affects the quality of the human environment. Assume that the federal agency nevertheless fails to prepare an environmental statement. In short, assume a clear violation of the command of § 4332(2) (C). Nevertheless, in order for a plaintiff to obtain an injunction stopping the project, the plaintiff must show that, on the merits, an administrative decision to build a highway despite certain environmental consequences was itself arbitrary and unreasonable.

To accede to this contention would be to do violence to the clear Congressional purpose. That purpose, as clearly expressed in the National Environmental Policy Act of 1969, was to commit the vast resources of the federal government to "encourage productive and enjoyable harmony between man and his environment . . . ." 42 U.S.C. § 4321. The Act provides that there are to be careful cooperative efforts among all of the appropriate federal, state, and local agencies of government in order to insure that environmental consequences are clearly perceived and evaluated. Specifically, § 4332(2) (C) requires not only that environmental statements be prepared by the primary federal agency, but that other appropriate federal agencies be consulted in the course of its preparation, and that the statement be furnished to appropriate federal, state, and local agencies. There is much more which might be said about the scheme of the Act, but for the present purpose it is enough to say that the Act requires the agencies of the federal government to assemble all of the pertinent information, to subject it to expert scrutiny, and to articulate clearly and in writing an evaluation of the various benefits and costs which are being balanced. To suggest that when the federal agencies flatly fail to perform this function, a plaintiff in a lawsuit such as this suit must perform it as a condition to obtaining injunctive relief is to suggest that one of the central purposes of the Act be frustrated.

Other contentions by the movants have been dealt with in the opinion of December 7, or are wholly lacking in merit.

Because the legislation involved in this lawsuit is relatively [2 ELR 20071] new, and because the function of the court in this situation is obviously not well understood, I add a few words.

In passing upon the motion to suspend the preliminary injunction, it is the function of the court to decide whether the plaintiffs enjoy a reasonably good chance to prevail in their contention that the FHWA violated § 4332(2) (C); whether the aesthetic, conservational, and recreational interests asserted by these plaintiffs will be irreparably damaged if construction proceeds; and whether such irreparable damage, if it will occur, justifies injunctive relief as against the competing interests which have been damaged and will be damaged as a result of the project stoppage. I need not repeat what I have said on December 7 and again in this opinion about whether FHWA violated § 4332(2) (C), nor about the environmental damage which will occur if construction proceeds. I am well aware that those whose interests are adversely affected by the preliminary injunction firmly believe nevertheless that the balance should be struck in their favor. As I have said, it is not for me ultimately to decide whether the benefits expected to flow from the highway project outweigh the environmental costs. But in the constellation of interests affected by the injunction or by a suspension of the injunction, I give primacy to this interest: That the federal agencies obey the Congressional command to assemble the information necessary to an informed decision, to perceive the choices to be made, to evaluate the factors thus perceived, and to articulate in writing the reasons for deciding whether to proceed or not to proceed with a major project significantly affecting the quality of the human environment.


For the reasons stated, and upon the basis of the entire record, the motion by the defendants Clapp, Redmond, and Banaszak for an order suspending the preliminary injunction entered herein December 7, 1971, is hereby denied.

1. 42 U.S.C. § 4321 Congressional declaration of purpose of NEPA states as follows: "The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality."

2. NEPA became effective on January 1, 1970. The design hearing for the Highway 16 project was held on June 30, 1970. Final federal approval of the design came on January 26, 1971. Although P.P.M. 90-1 was not transmitted to federal agencies until August 24, 1971, I find that it is nevertheless a reasonable administrative interpretation of the statutory language in question. Although its exact terms were not available to defendants at the time of their decision, I do regard it as a coherent statement of what a reasonable interpretation of that statute was at the time defendant determined that the Highway 16 project was not a "major Federal action significantly affecting the quality of the human environment".

1. The heading of the Opinion and Order entered December 7, 1971, was: "Opinion and Temporary Restraining Order". In the text, however, plaintiffs' motion was treated as a motion for a preliminary injunction. To remove any ambiguity, I now declare that the order entered that day was intended to be, and is to be construed as, a preliminary injunction.

2 ELR 20068 | Environmental Law Reporter | copyright © 1972 | All rights reserved