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No E.-W. Highway Comm. v. Whitaker

Citation: 6 ELR 20053
No. No. 73-199, 403 F. Supp. 260/(D.N.H., 10/17/1975)

The incremental construction of four federally-funded fourlane highway segments and commitment to construct a fifth along New Hampshire Route 101, the main east-west route corridor in the southern part of the state, sufficiently imply federal participation in a planned four-lane limited-access highway in the corridor so as to require preparation of a NEPA impact statement covering the entire route corridor. Although there is presently no overall federal plan to construct such a new four-lane limited-access highway, and although the state has denied that it has any such plan, it is reasonable to conclude that the state, in partnership with the federal government, is contemplating construction which could inevitably lead to that result. All construction thus far has proceeded in accordance with the steps proposed in a 1960 state study recommending a new limited-access highway, and the incremental projects already undertaken or completed represent 40 percent of the work necessary for constructing such a highway. Since such a project is "possible of accomplishment with legislative and federal approval over a long-range period of time," NEPA is applicable. Even though it constitutes major federal action under the nexus test, construction along Route 101 presently lacks definition, and it is therefore too early to require defendants to prepare a detailed impact statement. Thus, the court declines to issueran injunction, but retains jurisdiction and requires defendants to keep plaintiffs informed of any impending federal action relating to further construction along Route 101 which could serve as a link in the construction of a new east-west highway.The court notes that a comprehensive regional impact statement may be required even in the absence of a direct attack on the adequacy of the EIS for a particular incremental project. The court distinguishes SCRAP II and finds it of no decisional significance in this case. In an addendum, the court also rules that the Supreme Court's vacation and remand, 6 ELR 20068, of Conservation Society of Southern Vermont v. Secretary of Transportation, 5 ELR 20068, on the question of the delegation of EIS preparation, in light of the recent amendment to NEPA, does not undercut the legal analysis and theoryion which this opinion is based.

Counsel for Plaintiffs
Haynes N. Johnson
Alphonse R. Noe
Parmelee, Johnson & Bollinger
460 Summer Street
Stamford, Conn. 06901
(203) 327-2650

Robert A. Backus
Devine, Millimet, Stahl & Branch
1823 Elm Street
Manchester, N.H. 03105

Counsel for State Defendants
John C. Boeckler Asst. Attorney General
State Capitol
Concord, N.H. 03301

Counsel for Federal Defendants
Gary Randall
Department of Justice
Washington, D.C. 20530