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Monroe County Conservation Council Inc. v. Adams

decided: November 22, 1977.

MONROE COUNTY CONSERVATION COUNCIL, INC., AND RAY HUTHER, ON HIS OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
BROCK ADAMS, INDIVIDUALLY AND AS SECRETARY OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION, DEFENDANT-APPELLEE



Appeal from an order of the United States District Court for the Western District of New York, Harold J. Burke, Judge, vacating a prior order which had enjoined federal funding for the construction of a highway segment pending compliance with NEPA, 42 U.S.C. § 4321-4347, and § 4(f) of the United States Department of Transportation Act of 1966, 49 U.S.C. § 1653(f), on findings by the district court that the requirements of these statutes had now been met.

Lumbard, Feinberg and Van Graafeiland, Circuit Judges.

Author: Van Graafeiland

VAN GRAAFEILAND, Circuit Judge:

Because its streets had not been designed to handle the mass movement of motorized vehicles, Rochester, N. Y., like many other older cities, was ill-prepared for the advent of the automobile. More than thirty years ago, State, County and City officials set out to create a system of arterial expressways to solve, in part at least, the serious traffic problem existing in the City and its adjoining towns. Their efforts culminated in a plan for an "inner" expressway loop around the downtown Rochester area and an "outer" loop around the City's perimeter. Construction of the inner loop has been completed. We are concerned on this appeal with the State's efforts to complete the outer loop.*fn1

This loop, as it presently exists, encircles the City on the east, north and west sides and the easterly portion of the south side.*fn2 There is, however, a four-mile gap in the westerly portion of the south side. Athwart this gap sits an 842 acre public park known as Genesee Valley Park. In 1967, the New York State Department of Public Works sought the approval of the United States Bureau of Public Roads (now the Federal Highway Administration) for construction of a roadway viaduct over a portion of this park. Approval was granted in 1968. In 1970, the State submitted additional documentation for purposes of compliance with § 4(f) of the United States Department of Transportation Act of 1966 as amended. 49 U.S.C. § 1653(f).*fn3 This submission was approved by the Secretary of Transportation on May 7, 1971.

However, the enactment of NEPA, the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347, and the subsequent prosecution of this suit by the Monroe County Conservation Council, Inc. resulted in a judicial roadblock to the completion of the highway. In 1972, on a prior appeal by the Conservation Council, this Court held that, although the project had been almost completed, the State had to comply with the provisions of NEPA for the unfinished portion, including the preparation of an Environmental Impact Statement (EIS) as required by 42 U.S.C. § 4332. See Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693 (2d Cir. 1972). We held also that, up to that point, there had been inadequate compliance with § 4(f). The Secretary of Transportation was enjoined from approving funding of the unfinished segment until the statutory requirements had been met.

Five years have now passed. Public hearings have been held, and comments have been solicited from appropriate public and private agencies. A 395 page EIS, with a 331 page Appendix, and a revised 81 page 4(f) Statement have been prepared and filed. The approval of the Secretary of Transportation has been obtained once more. A motion to vacate the prior injunctive order was granted in the United States District Court for the Western District of New York on findings that the requirements of that order had been met, and plaintiffs bring the matter before this Court once again.*fn4

Plaintiffs advance two principal contentions on this appeal: (1) that inadequate consideration was given to alternatives to the proposed construction, 42 U.S.C. § 4332(2)(C)(iii) and 49 U.S.C. § 1653(f); and (2) that inadequate consideration was given to its social impact, 42 U.S.C. § 4332(2)(C)(i) and 23 C.F.R. § 771.18(i)(2)(iii). We have made a careful review of the record and summarize below the facts which are pertinent to these contentions. Before doing so, however, we define briefly the role which a district court plays in cases of this nature.

With regard to the EIS, the task of the district court "is merely 'to determine whether the EIS was compiled in objective good faith and whether the resulting statement would permit a decisionmaker to fully consider and balance the environmental factors.'" County of Suffolk v. Secretary of the Interior, 562 F.2d 1368, 1383 (2d Cir. 1977) (quoting Sierra Club v. Morton, 510 F.2d 813, 819 (5th Cir. 1975)).

In making such a determination a court is governed by the "rule of reason", under which an EIS need not be exhaustive to the point of discussing all possible details bearing on the proposed action but will be upheld as adequate if it has been compiled in good faith and sets forth sufficient information to enable the decision-maker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the benefits to be derived from the proposed action, as well as to make a reasoned choice between alternatives.

County of Suffolk v. Secretary of the Interior, supra at 1374-1375. (Citations omitted).

Insofar as the 4(f) Statement is concerned, the district court must ascertain first whether the Secretary of Transportation acted within the scope of his authority, i.e., whether the Secretary could have reasonably believed that there were no feasible alternatives to the use of parklands or that the alternatives involved unique problems. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971). The court, without substituting its own judgment for that of the agency, must then determine that the choice made was not arbitrary, capricious, an abuse of discretion or a violation of law. Id. Finally, the court must satisfy itself that the correct procedures have been followed in arriving at the decision under review. Id. at 417.

The burden of proof is on the challenging plaintiff to establish that the EIS was inadequate or that the Secretary of Transportation had acted improperly in approving the use of parklands. Sierra Club v. Morton, supra, 510 F.2d at 818; ...


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