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Lathan v. Volpe

Citation: 2 ELR 20545
No. No. 8986, 350 F. Supp. 262/4 ERC 1487/(W.D. Wash., 08/04/1972) On remand

On remand from the Ninth Circuit, the court continues a preliminary injunction against construction of highway I-90 in the Seattle area pending defendants' compliance with NEPA and a valid Section 4(f) determination. In order to meet statutory requirements, a final impact statement must respond to questions raised by both commenting agencies and the general public. Highway officials must give more than cursory attention to public comments and suggestions. The proper response is to conduct research to provide answers, or to refer to answers already in the statement. Asufficiently detailed final statement with comments appended constitutes a reviewable administrative record. An impact statement on a highway undertaking must describe resultant air and noise pollution, long-range effects on land use, and increased traffic on connecting roads. It should indicate how project needs were estimated, and contain a detailed comparison of the costs and benefits of alternatives. Failure to meet these requirements invalidates the statement filed here. Research conducted after the road is built would come too late and does not suffice. The court does not decide whether federal duties under NEPA may be delegated to state officials, since the issue was not timely raised. A Section 4(f) statement on the taking of parklands may not rely upon an invalid impact statement. Defendants have the burden of proving that the official who certified that the parks were not of local significance had the authority to do so. The court continues an injunction against acquisition of land pending statutory compliance, and prescribes procedures for impact statement preparation. The court orders that public notice be given and the opportunity provided for written public comment on the draft statement.

Counsel for Plaintiffs
Michael J. Fox
John Grant
10th Floor, Arctic Building
Seattle, Wash.

Paul Baetz
4200 Seattle First National Bank Building
Seattle, Wash.

J. Anthony Kline
National Housing and Developmental Law Project
University of California at Berkeley
Berkeley, Calif. 94722

Counsel for Federal Defendants
Stan Pitkin U.S. Attorney
Albert G. Stephan Asst. U.S. Attorney
1012 U.S. Courthouse
Seattle, Wash.

Counsel for State Defendants
Thomas R. Garlington
5800 Capitol Building
Tumwater, Wash. 98501

Counsel for Intervenors
O. J. Humphrey III
710 Hodge Building
Seattle, Wash.

Roger M. Leed
1900 Washington Building
Seattle, Wash. 98101