The opinion of the court was delivered by: ELFVIN
Plaintiff, a not-for-profit membership corporation, seeks the issuance of a preliminary injunction preventing "defendants from taking any further action with respect to the Buffalo Light Rail Rapid Transit System
or from disbursing or obligating any funds to the Niagara Frontier Transportation Authority"
for such project. Defendants oppose the motion.
Subsequent to the preparation of the final Environmental Impact Statement ("EIS") and the holding of final public hearings on the LRRT project, the NFTA changed the method of construction to be utilized at the Amherst Street station. According to plaintiff, Hardt's, the NFTA's and Knight's actions of applying for and possibly receiving federal funds without holding new public hearings violate plaintiff's rights under 49 U.S.C. §§ 1601 Et seq., 42 U.S.C. §§ 4321-4335 and 1983. Plaintiff also alleges that the federal defendants (Adams and Page) have violated or will violate plaintiff's rights under such sections by approving funds for the LRRT with knowledge that the required public hearings have not been held.
Defendants assert that the change in the construction methods does not necessitate the holding of new public hearings or the drafting of a supplemental EIS.
In addition, defendants argue that plaintiff has had an adequate opportunity to be heard on this issue.
On September 12, 1978 the Urban Mass Transportation Administration approved the NFTA's application for the LRRT project. Written notification of the approval was sent to Hardt, Chairman of the NFTA, September 15, 1978. The federal share of the project is $ 359 million. The line extends from the D.L. & W.R.R. terminal to the south campus of the State University of New York, a distance of approximately 6.4 miles. The downtown section of the line will be at surface grade for a distance of 1.2 miles and the remainder of the line will be underground. Three and one-half miles of the underground section are to be constructed by rock tunnel boring and 1.7 miles by cut-and-cover. There will be six surface stations and nine underground stations.
Public hearings were held in April 1972 and July 1974 prior to the preparation of the draft EIS. After the draft EIS was prepared and circulated to the required federal, state and local agencies and to the public, public hearings were held July 14, 1977. Subsequent to such hearings a final EIS was prepared. The final statement was approved for publication December 15, 1977 and circulated to the various federal, state and local agencies commencing December 27, 1977. The final statement was also made available to the public. The statement was not referred to the Council on Environmental Quality and the environmental impact statement process therefore was completed January 25, 1978.
Engineering tests conducted after the July 14, 1977 public hearings and the preparation of the final EIS indicated the presence of fractured rock and excess water at the original vertical alignment of the LRRT station at Main and Amherst streets. As a result, the vertical alignment of the station was brought closer to the surface and the method of construction was changed from rock tunnel boring to cut-and-cover. The original alignment of the station was based on tests done in 1973.
The Amherst Station is mentioned on page 4-29 of the EIS as being part of the rock tunnel section of the project. No specific method of construction for the stations in this section of the line are mentioned in the EIS, although the diagram on page 4-33 indicates that the stations would also be constructed by the rock tunnel method. Pages 5-59 through 5-67 discuss in general terms the impacts of the two construction methods. Construction procedures for the stations in the cut-and-cover section were not formalized in the EIS; however, the basic procedures for the tunnels and the stations would be similar. Street traffic is rerouted while shallow trenches are dug, earth support systems are installed, buildings are underpinned and decking is installed. Traffic is returned to the street and travels on the decking. Once excavation is complete and the backfilling nears the surface, decking is removed and traffic is rerouted. Once the pavement is restored and the area cleaned up, traffic is permanently moved back onto the street. "Cut-and-cover construction is highly disruptive for short periods of time despite mitigative measures. Traffic flow * * * is bound to be impeded by construction especially during peak hours when car and bus traffic is heavy. * * * The visual environment will be disrupted and street-level noise and air pollution increased." EIS at pages 5-61 through 5-62. Dust, dirt and air pollution from the construction are to be controlled by the contractor. "Rock tunnel construction is the least disruptive of any of the construction techniques to be used on this project * * *." EIS at 5-65. Under the rock tunnel method of construction, drilling and blasting would be required during the construction of vent shafts and station access points. The original plans for the Amherst Station called for extensive sewer work to be performed at the intersection of Main and Amherst streets. Physical construction on the Amherst Station is not set to begin until January 1980, although acquisition of rights of way, relocation and demolition is to commence as of June, 1979.
Prior to the change in construction method, plaintiff, through a representative, went on record as supporting the location of the LRRT station at Main and Amherst streets. After the change, plaintiff raised many questions concerning the impact of cut-and-cover construction, particularly the economic and social impact it would have on the neighborhood. Plaintiff on March 14, 1978 submitted two pages of questions to the NFTA concerning construction of the station and the NFTA responded April 13th. The excavation for the station structure will be approximately 330 feet long by 60 feet wide and 40 feet of such width will extend into Main Street. Two lanes of traffic are to be maintained at all times and a third lane if necessary during peak periods. Traffic restrictions will exist for one month for excavation and decking of the tunnel boring machine removal pits. Excavation and decking of the station structure will require traffic restrictions for three months. It will take six months to complete the excavation for the station structure. Once the structure is completed, traffic restrictions will exist for four months while the street is restored. It is projected that the street will be back to full width approximately nine months from the start of construction. The station plans were changed to reduce the overall width of the station and the horizontal alignment was changed so that all construction will take place on the west side of Main Street and adverse impacts to the businesses on the east side of Main Street will be reduced. Access to all businesses and residences will be maintained. Originally Parker Avenue was to be closed for a two-week period, but the length of the station was shortened so that it would not be in the immediate right of way; therefore Parker Avenue will not have to be closed entirely. The volume of material to be excavated does not differ greatly between the two construction methods.
The NFTA has met with plaintiff on several occasions to discuss the change in construction methods. In addition, the issue was discussed repeatedly at the Community Rapid Transit Interaction Panel ("CRTIP") monthly meetings, from January 1978 through June. As noted above, changes were made in the construction plans to lessen the adverse impact of construction on the community.
Federal officials were cognizant of the concerns held by the Main-Amherst Businessmen's Association. The transcripts of the public hearings were reviewed, as were the NFTA's responses to plaintiff's questions and the results of the NFTA's various meetings with plaintiff. The NFTA submitted a detailed statement on the impacts of cut-and-cover construction at the station site and the federal officials also noted the NFTA's cooperation with CRTIP which was set up to work with the NFTA in planning and developing the LRRT Project. The Secretary of Transportation ("the Secretary") concluded that the record allowed him to make the findings required by 49 U.S.C. s1610(b) and (c) and also concluded that a supplemental EIS was not necessary.
Jurisdiction over the subject matter of this action exists under 28 U.S.C. § 1331(a). Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1329 (4th Cir.), Cert. denied 409 U.S. 1000, 93 S. Ct. 312, 34 L. Ed. 2d 261 (1972); Simmans v. Grant, 370 F. Supp. 5, 12 (S.D.Tex.1974); Sierra Club v. Froehlke, 359 F. Supp. 1289, 1335 (S.D.Tex.1973), Reversed on other grounds, Sierra Club v. Callaway, 499 F.2d 982 (5th Cir. 1974).
A preliminary injunction may not be granted unless the moving party demonstrates "possible irreparable injury And either (1) probable success on the merits Or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation And a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Caulfield v. Board of Education, 583 F.2d 605 (2d Cir. 1978) (emphasis in original). The instant complaint does not set forth facts demonstrating the possibility of irreparable injury. In its brief, plaintiff argues that a preliminary injunction should be issued because it has met the second prong of the above-cited test. However, the brief does not mention the issue of irreparable harm. When pressed at oral argument concerning the issue of irreparable harm, plaintiff's attorney stated that the defendants' continuing violation of plaintiff's statutory rights establishes irreparable harm.
There are situations where a clear violation of a statute embodying strong national policy warrants injunctive relief, even though there is no factual showing of irreparable harm. Conservation Soc. of S. Ver., Inc. v. Secretary of Tran., 508 F.2d 927 (2d Cir. 1974), Vacated and remanded, 423 U.S. 809, 96 S. Ct. 19, 46 L. Ed. 2d 29 (1975), Reversed on other grounds, 531 F.2d 637 (2d Cir. 1976). Many of the cases in which such injunctions were granted involved violations of the National Environmental Policy Act, 42 U.S.C. §§ 4321 Et seq. ("NEPA").
See, e.g., Environmental Defense Fund v. Tennessee Val. Auth., 468 F.2d 1164 (6th Cir. 1972); Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972); Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1972). Sections 1602 and 1610 of Title 49 incorporate the policies of NEPA into the Urban Mass Transportation Act ("UMTA"). The purpose of the public hearing is to allow all persons who have a significant economic, social or ...