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Citizens for Balanced Environment and Transportation Inc. v. Volpe

decided: June 9, 1981.

CITIZENS FOR BALANCED ENVIRONMENT AND TRANSPORTATION, INC., ET AL., PLAINTIFFS-APPELLANTS,
v.
JOHN A. VOLPE, ET AL., DEFENDANTS-APPELLEES.



Appeal from an order of the United States District Court for the District of Connecticut (Honorable T. F. Gilroy Daly, Judge ), vacating an injunction that has been in effect since 1972 which prohibited further construction on a United States highway in Connecticut until an Environmental Impact Statement had been prepared pursuant to § 102(2)(C) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C). Upon completion of an Environmental Impact Statement the government agencies responsible for construction of the highway, and intervenors, moved to vacate the injunction, which motion was granted. Appellant, Citizens for Balanced Environment and Transportation appealed. The Court of Appeals held that the district court applied the appropriate standard of review, that the final Environmental Impact Statement was not procedurally inadequate, and that the district court did not err in its adoption of findings presented by defendants-intervenors. Judgment affirmed .

Before Moore, Mansfield and Mulligan,*fn* Circuit Judges.

Author: Moore

Plaintiff-appellant, Citizens for Balanced Environment and Transportation (CBET), a citizens' group, appeals the decision of Judge T. F. Gilroy Daly of the United States District Court for the District of Connecticut, vacating an injunction that has been in effect since 1972. The injunction which had been entered on July 17, 1972 by then District Judge Jon O. Newman prohibited responsible agencies from further construction of a U. S. highway in Connecticut until an Environmental Impact Statement (EIS) had been prepared pursuant to § 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2)(C). Upon completion of the EIS, the agencies charged with the highway's construction, the United States Department of Transportation (DOT), the Federal Highway Administration (FHWA), and the Connecticut Department of Transportation (ConnDOT) by motion sought to have the injunction vacated so that construction could begin.

This case comes to us after lengthy governmental and judicial proceedings.

The controversy surrounds the proposed construction of a new expressway to replace the present U. S. Route 7 between Norwalk and Danbury, Connecticut. The distance to be covered by this proposed roadway is roughly twenty miles. Construction would act to relocate the existing Route 7, a major, though antiquated, north-south highway in the Western part of Connecticut. The new highway would also provide a link between two east-west highways Interstate 95 in the South and Interstate 84 in the North, both completed some time ago.

As early as 1957 the State of Connecticut began to consider appropriate measures to improve conditions on this leg of Route 7.*fn1 Investigations were made by the Connecticut Highway Department (now Connecticut Department of Transportation) for possible routes for the new expressway between 1957 and 1962. Public hearings were held in towns to be affected by the expressway*fn2 between 1961 and 1965. In 1967, following the authorization of necessary funds by the Connecticut legislature, construction began on a one and one-half mile stretch of the road between I-95 and New Canaan Avenue in Norwalk. This segment was completed in 1971.

The judicial history of this case begins after the completion of the first section of the new Route 7 and before construction was to begin further north toward Wilton. At that time a citizens' group, Committee to Stop Route 7 (predecessor of appellants in this appeal) entered Federal Court and successfully sought an injunction against the DOT, FHWA, and ConnDOT to stop further construction.

The injunction was issued by United States District Judge Newman on July 17, 1972. Committee to Stop Route 7 v. Volpe, 346 F. Supp. 731 (D.Conn.1972). Plaintiff's principal contention was that the defendants failed to prepare a detailed environmental impact statement as required by the National Environmental Policy Act of 1969, § 102(2)(C).*fn3 Defendants claimed that although the project was a major Federal action "significantly affecting the quality of the (human) environment" under the meaning of § 102(2)(C), no EIS was required because years of planning had gone into the proposed highway*fn4 before the effective date of NEPA.

Judge Newman held that the clear mandate of Congress required an EIS before construction of the highway could resume. Accordingly, defendants were enjoined from "taking any steps to construct any portion of relocated Route 7 until such a statement has been prepared according to the provisions of § 102(2)(C) of the National Environmental Policy Act". D.C., 346 F. Supp. 731, 742.

In response to the 1972 injunction the Commissioner of ConnDOT and the FHWA Division Administrator successfully obtained funding necessary for the preparation of an EIS. A draft EIS (DEIS)*fn5 was prepared by ConnDOT after the compilation of social, environmental and economic information and analysis of independent studies. The DEIS was circulated by January 1974 to appropriate governmental and other interested agencies and the public for comment.

The DEIS

The DEIS is a document of 155 pages, exclusive of 33 tables containing information related to the chapter headings: 25 maps, charts, diagrams and statistics; and an appendix of 27 pages consisting largely of actions taken by agencies of certain towns with respect to the proposed new route.

The index of the Chapter headings is indicative of the broad coverage of the DEIS. The first four chapters covered "I. Description of Project and Study Area" with seven subheadings; "II. Preliminary Alternatives" with four subheadings; "III. Analysis of Feasible Alternatives" with eight subheadings; and "IV. Probable Impact of the Proposed Project on the Environment" with seven subheadings. The last four chapters dealt with "VI. Probable Adverse Environmental Effects which cannot be avoided"; "VII. Irreversible and Irretrievable Commitment of Resources"; "VIII. Short term effects and Long Term Productivity"; and "IX. Steps to Minimize Harm".

After circulation of the DEIS which was approved by ConnDOT and FHWA on January 17, 1972 and January 23, 1974, respectively, a Final Environmental Impact Statement (FEIS)*fn6 was prepared and issued under the signatures of the Commissioner of ConnDOT (May 24, 1977), the Division Administrator of FHWA (May 26, 1977) and the Director of the Office of Environment and Design of FHWA (August 14, 1978).

The Final Environmental Impact Statement

The first volume of the FEIS (pp. 1-391) described as "Narrative" defines the scope of the twenty-four chapters contained therein which, in brief, covers traffic, water quality, noise, air quality and alternative considerations. Referring to "Alternatives" there follows a detailed discussion which, after stating that "Highway Alternatives should be carefully evaluated in studying a highway's impact upon the environment", refers to the DEIS saying "This has been done for Route 7, as documented on pages 25 through 192 of the Draft Environmental Impact Statement" and further that "Additional considerations regarding alternatives were reviewed as the result of comments received from circulation of the draft EIS as noted in the following response to those inquiries". (Here follows an extensive consideration of "do-nothing", "widening" and "mass transit" alternatives together ...


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