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March 31, 1982

WEST SIDE HIGHWAY PROJECT, By its Executive Director, Lowell K. BRIDWELL, et al., Defendants; SIERRA CLUB, et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants

The opinion of the court was delivered by: GRIESA

These two actions have been brought to attack, on various legal grounds, the construction of an interstate highway and urban renewal project known as Westway. Plaintiffs in the Action for Rational Transit ("ART ") case complain that the construction of this project involves unwarranted devotion of federal funds to facilitating automobile and truck traffic on Manhattan Island, with attendant air pollution problems. The ART plaintiffs urge that preference should have been given to the improvement of mass transit in the form of subway, rail and bus transportation. These plaintiffs contend that the actions taken by various state and federal officials to implement the Westway project have violated certain provisions of federal law, namely the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the Federal Aid-Highways Act, 23 U.S.C. §§ 101-136, and the National Environmental Policy Act (commonly known as "NEPA"), 42 U.S.C. §§ 4321 et seq. Plaintiffs in the Sierra Club case attack the issuance of a landfill permit by the United States Army Corps of Engineers. The Sierra Club plaintiffs allege that the actions of the Corps of Engineers violate NEPA, and also violate Section 404 of the Clean Water Act, 33 U.S.C. § 1344, and Section 10 of the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. § 403.

Summary of Rulings

 The motions of defendants in the ART case for summary judgment dismissing the action are granted with the following exception. The Court will hold a further hearing in that case to consider whether there should be an injunction against the Secretary of Transportation, preventing federal funding for Westway, on the ground of failure to comply with the requirements of NEPA in respect to the impact of the proposed landfill on fishery resources.

 In the Sierra Club case, summary judgment is granted dismissing all claims except those relating to fishery resources. A trial has been held on the latter claims, and the findings of fact and conclusions of law on these claims are contained in this opinion.

 For the reasons there set forth, it is held in the Sierra Club case that the granting of a landfill permit for Westway by the Corps of Engineers violated the National Environmental Policy Act, the Clean Water Act and the Rivers and Harbors Appropriations Act. The permit granted by the Corps of Engineers is set aside, and the question of whether the Westway landfill should be permitted will be remanded to the Corps with appropriate directions to comply with the applicable statutes and regulations. The landfill for the construction of Westway will be enjoined until and unless compliance with the law is shown.

 The basis for this ruling is the failure of the Corps of Engineers to make public disclosure of the facts, as required by NEPA, regarding the impact of the landfill on fishery resources, and the failure of the Corps to give adequate consideration to this impact in its own review of the issue.

 The Hudson River estuary plays an important role in the production of certain sports and commercial fish stocks. The most prominent of these is striped bass, which is a valuable and prized fish along the Atlantic seaboard. Although the proposed landfill area is located within this estuary, the Federal Highway Administration and the New York State Department of Transportation took the position in their Environmental Impact Statement, filed under NEPA, that the landfill area lacks most of the normal estuarine marine life and is a "biological wasteland." However, during the Corps of Engineers proceedings, the Corps was presented with data which proved that the proposed landfill area is an important habitat for juvenile striped bass prior to their becoming a part of the Atlantic coast fishery. The Corps was further presented with responsible views of the National Marine Fisheries Service, the Fish and Wildlife Service, and the Environmental Protection Agency to the effect that the value of the area as a marine habitat is sufficiently great that its destruction would be seriously detrimental to the public interest. Indeed, the National Marine Fisheries Service took the position that the proposed landfill area is a critical nursery habitat for striped bass, and that the landfill would jeopardize the survival of the entire Hudson River striped bass population and its substantial contribution to the Atlantic fishery.

 The Corps of Engineers was obligated under NEPA to make public disclosure not only of the facts about the landfill area as an estuarine habitat for fish, but also of the views of the federal agencies having expertise and jurisdiction on the subject of fish and wildlife resources.

 The Corps failed to comply with these legal obligations, and filed no environmental impact statement. It acquiesced in the urgings of the Federal Highway Administration and the New York State Department of Transportation that the facts and issues about fishery resources be withheld. Also, there is no showing that even within the Corps the relevant questions were given consideration in the manner required by law.

 The issues here do not involve a minor technicality. The debate over Westway in the political arena, and the controversies before various regulatory agencies, have been vigorous and, to the view of many, closely balanced. It is the judgment of Congress, as expressed in NEPA, that this type of process cannot function properly unless the various interested constituencies are fully and fairly informed of the environmental facts.

 The striped bass fishery contributes to the economic well-being and enjoyment of literally millions of citizens. Moreover, because of the environmental problems of the present age, the health of this fishery is a matter of concern. Consequently, the failure to reveal the facts about the proposed landfill area as a striped bass habitat, and the failure to give adequate consideration to this issue, amounted to a critical deficiency in the administrative proceedings in this matter.

 A further hearing will be held to determine the exact terms of the injunctive relief. One point for consideration is whether the injunction should include the Federal Highway Administration. The latter agency is not a defendant in the Sierra Club case, although the Secretary of Transportation, in whose department the Highway Administration is located, is a defendant in the ART case. However, because of the role of the Highway Administration in the events, and because its own Environmental Impact Statement has been shown to be deficient, the further proceedings should include the question of whether this agency should be covered by the injunctive relief.

 Description of Westway

 Westway is proposed to be constructed on the west side of Manhattan Island from the Battery to 42nd Street. One phase of the project involves replacement of the elevated West Side Highway, which is being demolished south of 42nd Street as a result of its badly deteriorated condition. The major portion of the proposed new highway will be tunneled in landfill to be placed in the Hudson River starting at Battery Park City and running to 34th Street. The Hudson River piers in this area, all of which have fallen into total disuse as piers, would be removed to make way for the landfill. The area proposed for the landfill is considerably larger than what is necessary for the highway. Consequently a major phase of the Westway project involves creation of areas for residential and commercial development, and also parkland along the Hudson River.

 The landfill, the highway construction, and the creation of the parkland will all be carried out by the State of New York. It is apparently not yet determined how the real estate development will be financed and carried out, or by whom this will be done. It is estimated that construction of Westway will require about ten years. The construction cost was officially estimated in 1977 to be.$ 1.2 billion. The actual cost will undoubtedly be much greater-some believe, $ 2 billion or more.

 Westway will be part of the interstate highway system. Consequently, it is contemplated that the federal Government will pay 90% of the cost of the project, including the cost of the landfill and parkland development. The State of New York will pay the other 10%.

 The subject of replacing the West Side Highway has been under consideration for many years. In 1972 an agreement was entered into between the Governor of the State of New York and the Mayor of New York City establishing what is known as the "West Side Highway Project" as part of the New York State Department of Transportation. These entities will hereafter be referred to respectively as "the Project" or "the Westway Project," and "New York State DOT." An executive director and staff were appointed for the Project. There also was created a Steering Committee consisting of various officials of the State and City and the Port Authority of New York and New Jersey.

 The Project set out to develop various alternative proposals for handling the problems it was presented with, including the deterioration of the West Side Highway and the decay of the lower West Side Hudson River waterfront.

 By 1974 the Project had developed five alternatives which it proposed for discussion. One of these was the "Outboard Alternative," which involved putting a major portion of the highway in landfill in the Hudson River. The other alternatives involved a partially sunken highway in a lesser amount of landfill, the use of the wide expanse of the existing West Street 12th Avenue (after the demolition of the West Side Highway) as an arterial north-south route, repair of the existing West Side Highway, and reconstruction of the West Side Highway with some changes in alignment.

 A Draft Environmental Impact Statement ("Draft EIS") was issued in 1974, pursuant to the requirements of § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C). The Draft EIS was made public in the normal manner. Comments for and against the various alternatives were received.

 Further study and planning resulted in the decision by the Project to propose the plan which is now known as Westway. It is a modification of the Outboard Alternative described in the Draft EIS, and is referred to as the Modified Outboard Alternative.

 A Final Environmental Impact Statement was issued on January 4, 1977 ("January 1977 EIS"). This EIS was signed by the New York State DOT and the Federal Highway Administration ("FHWA"). The FHWA signed the statement in its capacity as the agency which would provide the federal funding for Westway.

 On January 4, 1977 William T. Coleman, Jr., United States Secretary of Transportation, and Norbert T. Tieman, Federal Highway Administrator, approved federal funding for Westway. On February 3, 1977, the new Secretary of Transportation, Brock Adams, affirmed the action of his predecessor.

 On April 7, 1977 the New York State DOT applied to the United States Army Corps of Engineers for the landfill permit for Westway. Since the proceedings before the Corps of Engineers are the subject of the Sierra Club case, and were explored in the trial of that action, the facts about these proceedings will be described in detail hereafter. The landfill permit was issued by the Corps on March 13, 1981.

 In the meantime, various actions were taken by the State of New York. On April 10, 1979 the New York Department of Environmental Conservation certified that the Westway project would not violate state water quality standards, and on October 30, 1980 this department granted the Indirect Source Permit, ruling that Westway would not violate state air quality standards. Prior to the Westway proceedings the proposed landfill area was designated as a "wetlands" by the State of New York. On October 24, 1979 the same department removed this designation.

 On July 30, 1981 an agreement was signed by the Governor of New York State and the Mayor of New York City providing for the implementation of the Westway project.

 History of Litigation

 The ART case was commenced in 1974. One of the claims in this case was that the Draft EIS was inadequate in certain respects relating to the description of the amount of vehicular traffic which would be brought into Manhattan by the Westway project and the effect of the project on air quality. A series of court hearings was held in 1975, resulting in an agreement that certain parts of the material in the Draft EIS would be reanalyzed.

 Following these hearings the ART action lay dormant while various administrative steps were being taken to obtain necessary approvals for Westway, and while the political debate about the merits of Westway was taking place.

 In 1981, when it appeared that this process was about to be concluded with final approvals and governmental agreement to build Westway, the ART plaintiffs reactivated their lawsuit, by filing an amended complaint. Defendants in that case moved for summary judgment seeking dismissal of the amended complaint. While these motions were pending, the ART plaintiffs moved for a preliminary injunction to stay the condemnation and acquisition by the State of New York of the property which would be necessary for the Westway project and the landfill which would be involved. This motion was denied on July 17, 1981.

 Regarding the companion action, the Sierra Club originally filed an action in 1979 against the Corps of Engineers attacking its landfill permit proceedings. The Corps moved to dismiss the action as premature, on the ground that the permit application had not yet been acted upon. The motion was granted and that action was dismissed by Judge Owen of this court. Sierra Club v. U. S. Army Corps of Engineers, 481 F. Supp. 397 (S.D.N.Y.1980).

 The Corps of Engineers granted the landfill permit in March 1981, and the Sierra Club and other plaintiffs brought a new action attacking that permit. This is the Sierra Club action now under consideration. Shortly after the commencement of the action, both sides filed motions for summary judgment. The Sierra Club plaintiffs made no motion for preliminary injunction.

 On November 11, 1981, the court announced rulings on the summary judgment motions in both cases. The court ruled that summary judgment should be granted dismissing the ART case in its entirety. In the Sierra Club case, plaintiffs' summary judgment motion was denied. The defense motion in the Sierra Club case was granted in part and denied in part. The court ruled that the Sierra Club plaintiffs' claim regarding the fisheries raised issues requiring trial.

 In connection with the rulings made on November 11, 1981, the court did not undertake to announce the reasons in a decision at that time, but stated that there would be a decision on all points raised in both cases following the trial of the fisheries question in the Sierra Club case. The Sierra Club trial took place January 19 to February 1, 1982.

 The present decision contains the findings of fact and conclusions of law on the issues tried in the Sierra Club case. This decision also contains the necessary explanation of the summary judgment rulings on the other points in the two cases.

 The ART Rulings

 There are 10 claims in the amended complaint. The following is a brief description of the nature of these claims. They are all dismissed, with the one exception noted.

 Claims 1-5

 These claims challenge the 1973 and 1979 State Implementation Plans ("SIP's"), promulgated under the Clean Air Act, 42 U.S.C. § 7401 et seq. These claims are identical to Claims 1-5 in Council of Commuter Organizations v. Metropolitan Transportation Authority, 524 F. Supp. 90 (S.D.N.Y.1981). These claims were dismissed by Judge Pollack on October 13, 1981. It has been agreed that Judge Pollack's disposition will govern in the ART case. Consequently, Claims 1-5 are dismissed.

 Claim 6

 This claim alleges that the construction of Westway will violate emission standards or limitations of the SIP currently in effect, which is that of 1979.

 The claim is without merit. No specific strategy or standard laid down in the SIP is shown to be violated by the proposed Westway Project. See League to Save Lake Tahoe v. Trounday, 598 F.2d 1164 (9th Cir.), cert. denied, 444 U.S. 943, 100 S. Ct. 299, 62 L. Ed. 2d 310 (1979). Plaintiffs' arguments are based on general policies which they believe underlie the SIP rather than specific provisions of the SIP which are shown to be violated.

 Claim 7

 This claim is that Westway is not consistent with the Regional Transportation Improvement Program of the Tri-State Planning Agency. There is no substance in the claim of inconsistency.

 Claim 8

 This claim alleges that the January 1977 EIS failed to comply with the requirements of NEPA in the following respects:

(1) Inadequate consideration of alternatives;
(2) Inadequate analysis of relative costs and adverse impacts versus benefits;
(3) Failure to disclose the possibility that the project will not be completed because of lack of funding;
(4) Failure to include an adequate discussion of an alleged additional leg of the interstate highway north of 42nd Street;
(5) Failure to disclose the taking of parkland on or near existing piers.

 In connection with Item (1), the principal contention is that there was a failure in the EIS to give adequate treatment to the so-called "interstate transfer" possibility. This refers to a procedure whereby federal interstate highway funds may, under certain circumstances, be traded for federal funds to be used for forms of mass transit such as subways, commuter trains, and busses. Section 103(e)(4) of the Federal Aid-Highways Act, 23 U.S.C. § 103(e) (4). However, the court finds that the subject was discussed in adequate detail in the EIS (pp. 269-73).

 The other two contentions regarding alternatives are that there was a failure to discuss the use of railroad transport instead of a highway, and a failure to discuss a so-called "no action" alternative. It is true that the EIS did not discuss either one of these alleged alternatives. However, NEPA does not require that an environmental impact statement discuss every conceivable alternative that could be imagined. Only reasonable alternatives are required to be set forth. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978). It is not at all clear what the ART plaintiffs are suggesting in connection with the alleged rail service alternative. If their idea relates to the installation of a freight and passenger railroad on the lower west side of Manhattan, the proponents of the EIS were within their rights in not considering that this was a viable alternative to the various road and highway designs which are described in the EIS. To the extent that the ART plaintiffs are referring to existing rail transportation as serving part or all of the purposes of Westway, the EIS contains a description of existing railroads in the area.

 As to the "no action" alternative, by the time the final EIS was prepared, a portion of the elevated West Side Highway had collapsed, and engineering studies had shown that this highway, in the area covered by the Westway project, would need to be demolished. Consequently there was no possibility of an alternative which involved no action whatever.

 With regard to Item (2), it is sufficient to say that the EIS contains extensive descriptions of a variety of social and economic impacts of the proposed Westway project, and a detailed analysis of costs and benefits in dollar terms. None of the ART plaintiffs' arguments are sufficient to show material defects or omissions.

 In this regard, the ART plaintiffs do not specifically raise the question of the impact of Westway on fishery resources as one of their claims. Their claims under NEPA do not expressly include a contention that the January 1977 EIS fails to disclose facts about fishery resources. This claim is part of the Sierra Club suit against the Corps of Engineers et al. The court has considered the potential effect of the findings in the Sierra Club case in respect to the ART case, and has decided, for reasons which will appear from those findings, to hold a further hearing in the ART case on the issue of whether there should be relief granted in that case because of the inadequacy of the January 1977 EIS in its description of the impact on fisheries. Otherwise, the claims in the ART case embraced in Item (2) are now dismissed.

 In connection with Item (3), the claim is that the Westway project is not assured of adequate funding to bring it to completion, at least with the various amenities described in the EIS. This issue was discussed in the course of court hearings. The result is that the Federal Highway Administrator, R. A. Barnhart, addressed a letter to the Court dated July 27, 1981, expressing the firm commitment of the federal Government to fund its 90% share of the Westway project to completion. In view of this circumstance, there is no ground for holding that the EIS is misleading in its description of the plans for funding Westway.

 Item (4) is to the effect that the project, as described in the EIS, relates only to a highway and development plan south of 42nd Street, whereas it is alleged that the full scope of the contemplated interstate highway project includes a project reaching north of 42nd Street along the Hudson River. The answer to this claim is that the only project now in being is the one described in the EIS. There has been consideration on the part of some persons of a further project north of 42nd Street, which is described in the EIS. However, no actual plans have been developed.

 The claim in Item (5) is also without merit. The EIS contains a sufficient description of impact on parkland.

 Claim 9

 This claim alleges that the Secretary of Transportation has failed to assure the consistency between Westway and the current SIP. The undisputed facts are clearly to the contrary.

 Claim 10

 Claim 10 is a vague grouping of contentions, largely under state law. They are all demonstrably invalid.

 Sierra Club Rulings

 There are 8 claims in the Sierra Club case. The following is a description of the claims and their disposition.

 Claims 1 and 2

 These claims allege the failure of the Corps of Engineers to issue an adequate environmental impact statement regarding the landfill permit application. Insofar as these claims deal with the questions of aquatic impact, the issues were tried. The findings of fact and conclusions of law will be set forth hereafter in this opinion.

 Aside from the aquatic impact issues, Claims 1 and 2 allege inadequate considerations of alternatives, of developmental aspects, of traffic and air quality impacts, of the possibility of funding shortfall, and of toxic chemicals and flooding. All these claims, dealing with the non-aquatic aspects, are dismissed. These subjects are adequately covered in the EIS.

 Claim 3

 This claim alleges a particular procedural violation on the part of the Corps-that the Corps should have had a publicly noticed proceeding on the specific question of whether a supplemental environmental impact statement was required. This claim is dismissed. There is no requirement for such a procedure.

 Claim 4

 This claim alleges inadequate consideration of possible flooding by the Corps. The record shows that on this subject the Corps' consideration was reasonable and adequate.

 Claims 5 and 6

 These claims attack the Corps proceedings as violative of the Clean Water Act and the Rivers and Harbors Act. These claims were tried, and the findings of fact and conclusions of law appear hereafter in this opinion.

 Claim 7

 This claim is that the landfill requires Congressional approval because it is a dike. See § 9 of the Rivers and Harbors Act, 33 U.S.C. § 401. This claim is ...

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