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Swain v. Brinegar

Citation: 5 ELR 20354
No. No. 74-1625, 517 F.2d 766/7 ERC 2046/(7th Cir., 04/29/1975) Rev'd

The Court holds that an environmental impact statement (EIS) prepared for a federal-aid highway project is defective in that it lacks a sufficiently detailed consideration of all reasonable alternatives and was produced by the state Department of Transportation rather than the responsible federal official. NEPA applies to the project, even though corridor location hearings were held before the act's effective date, since the project has not yet reached that stage of completion at which the cost of abandoning or altering the proposed highway clearly outweighs the potential benefits derived from EIS preparation. Plaintiff's claim that the corridor selection process was arbitrary and capricious fails for lack of evidence of agency bad faith or discouragement of public input in the planning process. The project's EIS, though, does not conform to the requirements of § 102(2)(C) of NEPA since it effectively omits consideration of general extra-local effects of the proposed highway as well as several alternatives to the proposed routing scheme. A more significant violation of NEPA is the delegation of the research and drafting of the initial EIS to a state agency. The court rules that an impact statement must be drafted, in the first instance, by the responsible federal official in order to ensure that impartial assessment of environmental consequences which lies at the heart of NEPA. Finally, plaintiff's attempt to represent two classes of landowners affected by the project fails on a showing of conflicting interests between plaintiff and other members of these classes. A dissent by District Judge Grant finds the forty-six page EIS reasonably detailed and the use of state officials to gather information for EIS preparation a permissible delegation.

Counsel for Plaintiffs
Mishael Gard
Timothy Swain
Swain, Johnson & Gard
1900 Savings Center Tower
Peoria, Ill. 61602

Counsel for Defendants
Donald B. Mackay U.S. Attorney
P.O. Box 375
Springfield, Ill. 62705

Max J. Lipkin U.S. Attorney
P.O. Box 209
Peoria, Ill. 61614

Wallace H. Johnson
Department of Justice
Washington, D.C. 20530