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New Haven, City of v. Chandler

Citation: 8 ELR 20475
No. No. N-77-406, 446 F. Supp. 925/11 ERC 1426/(D. Conn., 02/14/1978)

The court denies plaintiff's request for an injunction against construction of three electrical transmission towers in New Haven Harbor. Pursuant to § 10 of the Rivers and Harbors Act of 1899, the Corps of Engineers issued a permit for the project after determining that the environmental effects of the towers would be insufficiently significant to require the filing of an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). Declaring that its role in such a case is not to determine de novo the significance of these effects but to assess the reasonableness of the agency's conclusion, the court upholds the Corps' negative determination. The record shows that the Corps devoted considerable attention to the largely aesthetic impacts of the project, including the holding of public hearings and the soliciting of supplemental information from the Department of Housing and Urban Development. While there has been some controversy over the project, it has not been of a magnitude to mandate the preparation of an EIS under either the case law or the guidelines of the Council on Environmental Quality. The court finds that the agency threshold determination whether an EIS is required should be accorded greater deference on judicial review than an actual EIS, and the Corps' conduct and decision have met this lesser standard.The court also finds unmeritorious plaintiff's claim that defendants gave insufficient analysis to project alternatives under § 102(2)(E) of NEPA. While this statutory directive applies regardless of the significance of the environmental effects, the appropriate standard of judicial review remains the rule of reason. As plaintiff has failed to suggest any serious project alternative not considered by defendants, the court will not rule their analysis inadequate under the Act. Plaintiff's final argument is that because the environmental effects of the proposed transmission towers will be largely aesthetic and therefore difficult to compare with other project considerations, § 102(2)(B) of NEPA requires that methods and procedures be implemented to integrate more fully these effects into the decision whether to proceed with the project. The case law on this particular provision of the Act validates the action of the Corps. This section of NEPA should not be read to require the use of formulas for fully evaluating presently unquantifiable environmental factors. Plaintiff's request for injunctive relief is therefore denied.

Counsel for Plaintiff
Henry L. Fisher, Deputy Corp. Counsel
195 Church St., New Haven CT 06510
(203) 562-0151

Counsel for Federal Defendants
Frank H. Santoro, Ass't U.S. Attorney
P.O. Box 1924, New Haven CT 06510
(203) 432-2108

Counsel for Defendant United Illuminating Co.
Noel E. Hanf, William J. Doyle
Wiggin & Dana
195 Church St., New Haven CT 06510
(203) 789-1511

Counsel for Amicus Curiae Natural Resources Defense Council
Peter B. Cooper
Sosnoff, Cooper & Whitney
35 Elm St., New Haven CT 06508
(203) 787-5821