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RIVERDALE ENVTL. ACTION COMM. ALONG THE HUDSON V.

May 20, 1986

RIVERDALE ENVIRONMENTAL ACTION COMMITTEE ALONG THE HUDSON-R.E.A.C.H., SPUYTEN DUYVIL ASSOCIATION, PROMENADE TENANTS ASSOCIATION, BRONX COUNCIL FOR ENVIRONMENTAL QUALITY INC., MARVIN ALTSHULER, GLORIA ALTSHULER, ED DERRICO, MOHSEN GHAJARI, THOMAS L. BIRD, DAVID J. THOMPSON, DIKRAN DINGILIAN, SURA JESELSOHN, ESTHER BRAUN, ELLEN B. HIGHTOWER, and GREGORY CHARLES KISLOFF, Plaintiffs,
v.
METROPOLITAN TRANSPORTATION AUTHORITY and its METRO-NORTH COMMUTER RAILROAD COMPANY; and URBAN MASS TRANSPORTATION ADMINISTRATION, Defendants


Walker, D.J.


The opinion of the court was delivered by: WALKER

WALKER, D.J.

INTRODUCTION

 The plaintiffs, individuals and community organizations, seek to preliminarily enjoin design, construction, and federal funding of a Metro-North Commuter Lines power substation pending compliance with the National Environmental Policy Act 42 U.S.C. § 4321, et seq. ("NEPA"). *fn1" At the hearing of the application for a preliminary injunction the parties consented to a consolidation of the trial on the merits with the preliminary injunction hearing. T. 458, 459.

 STATEMENT OF FACTS

 The Spuyten Duyvil substation is part of the defendant Metropolitan Transit Authority's ("MTA") project to construct power substations for the operation of the Harlem and Hudson lines of its Metro-North Commuter Railroad System. The new system consists of thirty-eight substations: three are complete; twenty-two, including the Spuyten Duyvil substation, are under construction; and thirteen are in the design phase.

 The purpose of the substations is to convert electric power supplied by a commercial utility into electric power usable on the railroad. *fn2" The electricity is transmitted from the substation to the third rail of the railroad to power trains. The electricity diminishes as it travels on the third rail and eventually dissipates. Thus, the substations must be placed at intervals along the tracks to ensure power along the whole track. The location of any one substation is dependent on its adjacent substations and therefore movement of one substation would affect the location of all the other substations. In the case of the Spuyten Duyvil substation location, a movement of more than 200 to 300 feet in either direction would affect location of the adjacent substations. T. 279.

 In 1981 the MTA approached the Urban Mass Transportation Administration ("UMTA"), a subdivision of the United States Department of Transportation, to acquire federal funding for the Metro-North Commuter Lines' renovation of its antiquated electrical system, originally completed in 1906 and last modified in 1929. The MTA proposal was for the restoration and construction of power substations along the Harlem and Hudson lines to support the electrical demands of a technologically updated system to meet current commuter service needs.

 In order to approve funding for a project, pursuant to NEPA, UMTA had to consider the environmental consequences of the action, see 42 U.S.C. 4321 et seq. The regulations separate federal actions into three classes that prescribe the level of documentation required in the NEPA process. Class I actions are those which may significantly affect the environment and require an EIS. 23 C.F.R. § 771.115(a); see 49 C.F.R. § 622.101. Class II includes "actions that do not individually or cumulatively have a significant effect on the environment." Referred to as "categorical exclusions," these actions do not require an environmental impact statement or environmental assessment. 23 C.F.R. § 771.115(b). Lastly, Class III encompasses those "actions in which the significance of the impact on the environment is not clearly established" and "require the preparation of an EA" or environmental assessment "to determine the appropriate environmental document required." *fn3" 23 C.F.R. § 771.115(c); see also 23 C.F.R. § 771.119.

 In this case, UMTA required an environmental assessment, rather than an environmental impact statement. The MTA prepared an environmental assessment and sent it to UMTA on July 2, 1984. (See Defendants' Exh. L). After meeting with UMTA officials on August 9, 1984, the MTA prepared a more detailed environmental assessment and submitted it to UMTA on August 21, 1984. (See Defendants' Exh. J).

 The latter EA addressed a multitude of subjects, and included a description of the proposed action (Exhibit A at 3-5); an explanation of the need for the project (id. at 5-7); alternatives (id. at 7-9); environmental impacts (id. at 10-28); land use and zoning impacts (id. at 28-29); air quality impacts (id. at 29); noise impacts (id. at 29-31); water quality impacts (id. at 31); wetland impacts (id. at 31); flooding impacts (id. at 32); navigable waterways and coastal zone impacts (id. at 32); ecologically sensitive area impacts (id. at 32-33); traffic and parking impacts (id. at 33); endangered species impacts (id. at 33); energy impacts and conservation (id. at 34-35); historic properties and parklands impacts (id. 35-37); construction (id. at 37-39); aesthetics (id. at 40); community disruption (id. at 41); secondary development (id. at 41-42); consistency with local plans (id. at 42-44); an aerial photograph of the site; a photograph of the site; zoning and land use maps for areas adjacent to the substation sites; architectural descriptions; and renderings of typical substations.

 In its environmental impacts section, the EA included specific sections on the Spuyten Duyvil site:

 
The construction of the substation at Spuyten Duyvil will be at a site which requires no acquisition of property for the building and does not impact the City parkland which was originally inspected in March.
 
The site is located on the west side of the main tracks, within the Railroad's Right-of-Way at the present position of an unused freight siding. Access to the site will be via the Railroad owned bridge for the Riverdale Yacht Club at 254th Street and an access road to be built along and within the Railroad's R.O.W. [Right of Way].
 
The site will eliminate the need to use NYC parkland. The site is physically located on the west side of the main tracks, approximately 100 feet south of the site inspected on the tour of March 22, 1984. Construction will not require landfill or any other work in the Hudson River. The specifications will contain safeguards to prevent any adverse impacts to the Hudson River during the construction period. No displacements of homes or businesses will result from the construction of a substation at this site. Also, there are no significant impacts anticipated as a result of this construction.

 Id. at 13-14.

 Consistent with 23 C.F.R. § 771.121, UMTA then performed an independent assessment of the EA and the available information. Steven F. Faust, the Project Manager for UMTA who performed that assessment, recommended approval of a finding of no significant impact (FONSI). On November 15, 1984, the UMTA Regional Administrator, Richard T. Nasti, wrote to MTA Chairman Richard Kiley that "based upon the Environmental Assessment of the subject projects . . . we have issued a Finding of No Significant Impact" for seventeen sites, including Spuyten Duyvil. Because ...


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