The opinion of the court was delivered by: NEAHER
This is an action brought to enjoin defendants from implementing plans for a federally-funded highway project pending compliance with purported obligations arising under federal law. On March 12, 1979, the court denied plaintiffs' application for a temporary restraining order and set the matter down for a hearing on their motion for a preliminary injunction on April 4, 1979. During argument on this date, the court indicated its willingness to entertain defendants' proposed motion for summary judgment, and after supplemental briefing and submission of additional documentation by the parties, this motion is now before the court for decision. Bearing in mind that summary judgment may be rendered only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law," Rule 56, F.R.Civ.P., and that all permissible inferences must be drawn in favor of the party opposing the motion, Hill v. A-T-O, Inc., 535 F.2d 1349, 1354 (2 Cir. 1976), we proceed to a review of the facts and the applicable law.
At stake in this action is defendants' plan to repair and renovate a segment of the sadly deteriorated Brooklyn Queens Expressway (the "BQE") running from the vicinity of Atlantic Avenue to Rapelye Street near the Gowanus Expressway at a cost of approximately $ 6,700,000, ninety percent of which will be borne by the federal government.
Contractors are now on the site preparing it for the renovation, which all parties concede is necessary if the BQE is to remain functional. In response to community demands, government officials have decided to close only three lanes during the repairs, leaving two to serve northbound automobile and truck traffic and one to serve southbound truck traffic only. Detoured southbound automobiles will be carried on service roads adjacent to the highway, primarily on Hicks Street West, near the nationally designated historic districts of Cobble Hill and Brooklyn Heights.
Plaintiffs not-for-profit corporations representing, and whose members are, residents, business persons and homeowners in neighborhoods surrounding the work site, and the Long Island College Hospital, whose standing to maintain this action is not challenged contend that State, local and federal officials have not complied with obligations imposed upon them by various provisions of federal law in proposing, approving, financing and now attempting to proceed with the BQE reconstruction project (hereafter the "project"). Specifically, they assert that defendants' failure to consider adequately the effects the project will have on the environment and the historic districts and to consider "alternatives" to the project violates procedural requirements of the National Environmental Policy Act, 42 U.S.C. §§ 4321 Et seq. ("NEPA"); the National Historic Preservation Act, 16 U.S.C. §§ 470 Et seq. ("NHPA"); the Department of Transportation Act, 49 U.S.C. §§ 1651 Et seq. ("DOTA"); and the Federal Highways Act, 23 U.S.C. §§ 101 Et seq. ("Highways Act"), and entitles them to injunctive relief at least pending compliance with such obligations.
While this action has been fashioned an "environmental litigation," it is important to keep certain basic notions in mind. First, the defendants contemplate only the repair, albeit costly, of the existing roadway and do not envision extensions, additions or changes in the highway. Second, the repairs will result in only temporary changes in traffic flow and patterns, although for a lengthy period of over a year. Finally, the only conceivable environmentally undesirable consequences of the proposed work are additional pollution noise and emission and possible vibration, which might result from the detoured automobile traffic travelling on service roads during the period of renovation. Unlike plaintiffs who typically invoke environmental laws to enjoin federal action permanently, see E. g., County of Suffolk v. Secretary of the Interior, 562 F.2d 1368 (2 Cir. 1977), Cert. denied, 434 U.S. 1064, 98 S. Ct. 1238, 55 L. Ed. 2d 764 (1978), plaintiffs here object basically to temporary detour plans they contend will adversely affect their communities. Moreover, unlike projects normally reviewed under the NEPA or NHPA framework, see E. g., Conservation Society of South Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927 (2 Cir. 1974), this project consists of repairs entirely within the existing right-of-way.
Although plaintiffs would plainly prefer that the responsible officials abandon their plan to repair the existing roadway in favor of construction of a new highway which would not cut through the community as does the BQE, this proposal has not met with success despite plaintiffs' considerable efforts in the political arena. Thus, while the current route of the BQE rouses the emotions of many in the communities through which it slices, the court's role here is to decide whether the facts warrant moving the defendant officials to further action and not whether they warrant moving the BQE.
According to the affidavit of Victor E. Taylor, Division Administrator for the New York Division of the Federal Highway Administration ("FHWA") of the United States Department of Transportation ("USDOT"), USDOT became aware of the necessity for the project when the New York State Department of Transportation ("NYSDOT") submitted a request to the FHWA for federal funds (Taylor Affidavit P 4). The scope of the "problems" in the area was outlined in a report attached to the request. It noted that the vitrified clay pipe drainage system had apparently failed in several places, allowing silt and sand to enter the drainage lines and to be piped from beneath the pavement and collected at a pump station.
"New York City claims to be removing two tons of sand per week from the pumping station. Finally, the pavement settled to fill the voids and the City has resurfaced the area many times. . . . The pavement has been forced into irregular positions and has even caused trucks to rebound enough to strike the Kane Street overpass. If the present situation is allowed the remain, the complete loss of the pavement is anticipated.
"The retaining walls in the area are founded on sand and appear stable. However, should the drainage system continue pumping silt and sand, the walls could be undermined." (Administrative Record 1) (Hereafter "A.R.")
After approval from the Regional and Washington offices of the FHWA (A.R. 5, 6, and 7), the New York Division Administrator of the FHWA notified NYSDOT in February 1976 that the FHWA would approve funds for the proposed project with the caution that the "project should include all possible safety considerations in the completed section and for handling traffic during construction" (A.R. 7). On June 17, 1977, NYSDOT submitted a request for design approval supported by a design report, which concluded that conditions on the roadway necessitated immediate repair. It also stated the following:
"We have made the following procedural determinations:
"1. In accordance with 7-7-2 of the F.H.P.M. this project is classified as a non-major action.
"2. This project is not in conflict with the New York City Air Quality Implementation Program.
"3. A-95 clearing house review is not required.
"4. A public hearing is not required since the project will not:
"a. Require acquisition of right-of-way.
"b. Have an adverse effect upon abutting real property.
"c. Change the layout or function of connecting roads or streets." (A.R. 10.)
The attached report also detailed "Social Economic and Environmental Considerations:"
"Stated previously in this report, was the fact that a partial removal of traffic from the expressway would be necessary to perform the work. Through a stage type construction procedure, only the westbound expressway traffic will be removed completely. This will be accomplished by closing, temporarily, the existing westbound expressway entrance from Columbia Street, constructing a temporary westbound expressway ramp between Atlantic Ave. and Congress St., meeting Hicks Street West (the paralleling service road) at Congress Street and converting the existing Rapelye Street exit at Hicks Street West to a westbound expressway entrance. Minor traffic which wishes to enter the eastbound expressway from Hamilton Avenue will be diverted to Hicks Street East and enter at Atlantic Avenue.
"Recognizing the necessity for this diversion of traffic, the planned sequence will have the least effect on the surrounding community.
"2. As outlined in Volume 7, Chapter 7, Section 2 of the FHPM, this project is considered a "non-major' action, and does not require an environmental impact or negative declaration. . . ." (A.R. 10 at 15.)
Notice of the request for design approval was published in the New York Times and the New York Daily News (A.R. 13). On July 29, 1977, the FHWA granted design approval and concurred in the NYSDOT determinations (A.R. 14). A notice of design approval was published in the New York Times and the Daily News (A.R. 17).
In November 1977, the FHWA became aware of community concerns over the impact of the project (Taylor Aff. P 25), which were detailed in a letter to Congressman Fred Richmond from the Cobble Hill Association (A.R. 18). The letter acknowledged the necessity of the project but expressed concern over the stability of the buildings on Hicks Street through which traffic is to be rerouted and the additional inconvenience, noise and pollution the community would experience. By letter dated November 22, 1977, the FHWA informed the Association of the detour plan, the results of a noise study (A.R. 20), and notified it that NYSDOT would conduct studies on the structural stability of the buildings on Hicks Street.
In February 1978, an official of the USDOT Office of Environment called the FHWA about the Association. This call evidently prompted the FHWA to seek a determination of "effect" on the neighboring historic districts from the State Historic Preservation Office ("SHPO"), which it had not sought until that time. On March 14, 1978, the USDOT Office of Environment and Safety informed the Association that the responsible agencies had "correctly and adequately addressed environmental concerns" (A.R. 30). On March 16, 1978, the SHPO issued to NYSDOT a determination that the project would not have an effect on the district (A.R. 32), and the FHWA gave final approval for the project and authorized NYSDOT to advertise for bids on September 19, 1978 (A.R. 40).
In January 1979, the defendants entered into a construction contract with the Edward Fitzpatrick Jr. Construction Company, pursuant to which the contractor has begun preliminary work on the roadway. Plaintiffs commenced this suit when they were unable to convince the defendants to change their plans and to give further consideration to alternatives and to the effects of the current project.
Plaintiffs claim primarily that they are entitled to injunctive relief because of the alleged violations of both NEPA and NHPA. They assert first that the administrative record contains proof that the defendants did not comply with NHPA and, in fact, made their determination in bad faith. They also contend that the administrative record is incomplete and inadequate to support defendants' action in violation of NEPA in that (1) it fails to consider the environmental effects of closing the Rapelye Street exit to the BQE; (2) the defendants have unlawfully segmented the project from what plaintiffs describe as "Phase II"; and (3) defendants have proceeded with the project before adequately determining the effects upon abutting real property and ...