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West Mich. Envtl. Action Council v. Coleman

Citation: 6 ELR 20605
No. No. G76-70 C.A., 10 ERC 1060/(W.D. Mich., 07/13/1976)

The court enjoins, as a major action under NEPA, the cutting of live trees pursuant to the defendants' roadside obstacle removal program, except where they present clearly hazardous obstacles, pending defendants' determination whether the program requires an environmental impact statement as an action that significantly affects the environment. Pursuant to §§ 210 and 230 of the Federal-Aid-Highway Act of 1973, 23 U.S.C. §§ 153, 405, defendants intend to remove roadside obstacles that may cause traffic fatalities. The objects to be removed include from 8,000 to 80,000 live trees in Michigan. The defendants concede the "federal" nature of this project, but have decided that it is not a "major" project within the meaning of NEPA. Some courts have invoked the arbitrary and capricious standard of judicial review under NEPA, Hanly v. Kleindienst, 471 F.2d 823 828-29, 2 ELR 20717 (2d Cir. 1972), while other courts have employed the reasonableness, or rational basis, standard. Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 424-25, 3 ELR 20287 (5th Cir. 1973). This court does not reach the question of the appropriate standard, however, since under either the defendants' finding of non-major action is erroneous.

The Federal Highway Administration (FHWA) regulations relating to preparation of environmental impact statements, 23 C.F.R. part 771, ELR 46524, do not apply exactly to this situation, since they are concerned mainly with road construction projects. Council on Environmental Quality guidelines, 40 C.F.R. part 1500, ELR 46003, discussing the determination whether an action is "major," have been incorporated in Department of Transportation regulations that bind FHWA. 49 C.F.R. part I, subpart C. They must be given considerable weight. Hiram Clarke, supra; Greene County Planning Bd. v. FPC, 455 F.2d 412, 2 ELR 20017 (2d Cir. 1972). These guidelines emphasize that the "overall, cumulative impact" of an action must be included in determining whether an action is major. The defendants have made their "non-major" determination by comparing the number of trees to be cut to the total number of trees, nearly 60 million, along roadside areas in Michigan. However, defendants have failed to consider the total impact of their program, including similar work to be done in future years under succeeding grants. Furthermore, the initial appropriation of $15,000,000 alone makes this program a major action. Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 698, 3 ELR 20006 (2d Cir. 1972); Named Individual Members of the San Antonio Conservation Soc'y v. Texas Highway Dep't, 446 F.2d 1013, 1025, 1 ELR 20379 (5th Cir. 1971).

On remand, the defendants must determine whether their program "significantly affects" the evironment. Whether or not a full impact statement is required, the defendants must also give some consideration to alternatives, such as reduction of speed limits. NEPA § 102(2)(D), 42 U.S.C. § 4332(2)(D), ELR 41009. Hanly v. Kleindienst, supra; Trinity Episcopal School Corp. v. Romney, 523 F.2d 88, 5 ELR 20497 (2d Cir. 1975). Defendants are enjoined from cutting live trees pending their determination, except for those trees in clearly hazardous settings such as intersections, railroad crossings, and curves. Defendants are further required to furnish the court and plaintiffs with an environmental review of all such hazardous trees.

The full text of this opinion is available from ELR (20 pp. $2.50, ELR Order No. C-1068).

Counsel for Plaintiffs
Peter W. Steketee
500 People's Bldg.
60 Monroe Ave., NW
Grand Rapids MI 49502
(616) 451-8341

Counsel for Federal Defendants
Frank Spies, U.S. Attorney
Federal Bldg.
Grand Rapids MI 49502
(616) 456-2404

Counsel for State Defendants
Francis Carrier, Asst. Attorney General
Law Building
Lansing MI 48913
(517) 373-1110

Fox, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]