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Swain v. Brinegar

Citation: 6 ELR 20609
No. No. 74-1625, 542 F.2d 364/9 ERC 1086/(7th Cir., 07/20/1976) Panel decision rev'd en banc

The Seventh Circuit Court of Appeals, sitting en banc, reverses an earlier panel decision, 5 ELR 20354, which held that preparation of the NEPA impact statement for a proposed highway project had been improperly delegated to a state agency, but rules that the scope of the EIS was illegally restricted to only a 15-mile segment of the entire 42-mile project. The panel's holding on the delegation question can no longer stand in light of the 1975 amendment to NEPA. The Federal Highway Administration (FHWA) furnished guidance to the state during EIS preparation and exercised final authority in evaluating the statement, thus clearly complying with the federal participation requirements established by P.L. 94-83. In examining the sufficiency of the final EIS, however, the court concludes that the statement was improperly confined to only one segment of the proposed highway. FHWA regulations (PPM 90-1) require that the highway highway. FHWA regulations (PPM 90-1) require that the highway section considered in an EIS be defined by logical termini such as major crossroads or population centers and be "as long as practicable to permit consideration of environmental matters on a broad scope." The case law has added the tests of whether the segment has substantial utility independent of future expansion, and whether it forecloses possible alternative routes or locations for the highway project as a whole. The 15-mile segment at issue in this case, the court finds, would have no utility independent of the overall project's connection by interstate highway of Peoria to Lincoln, Illinois. A 3 1/2 mile completed segment midway between the two cities is not, in the court's view, a "major highway control element" which ranks as a logical terminus for the disputed segment under PPM 90-1. The court finds further that completion of the 15-mile southern segment will effectively limit the available choices for building the northern one, and that the two components are actually parts of a single "federal action" for NEPA purposes. FHWA must therefore prepare a supplement to the existing impact statements for both segments which considers the overall environmental effect of the proposed 42-mile freeway.

In a concurrence, Judge Swygert agrees with the majority's holding on the proper scope of the EIS, but argues that the record shows FHWA did little more than "rubber stamp" the state-prepared EIS, and that the agency's involvement in preparation and evaluation was therefore insufficient under the standards set by P.L. 94-83.

Judges Tone, Pell and Bauer dissent from the majority's decision that the scope of the EIS was improper, contending that the completed 3 1/2 mile segment is a logical terminus for the 15-mile segment at issue, and that construction of this southern segment will not predetermine the location of the remaining northern portion of the highway anymore than the completed 3 1/2 mile segment already has.

Counsel for Plaintiffs-Appellees
Timothy Swain
Michael Gard
Swain, Johnson & Gard
1900 Savings Center Tower
Peoria IL 61602
(309) 673-0741

Counsel for Defendants-Appellants
Donald B. MacKay, U.S. Attorney
P.O. Box 375
Springfield IL 62705
(217) 525-4450

Max J. Lipkin, U.S. Attorney
P.O. Box 209
Peoria IL 61614
(309) 671-7050

Edmund B. Clark
Larry Gutterridge
Department of Justice
Washington DC 20530
(202) 739-2740

Raymond L. Terrell
Drach, Terrell & Deffenbaugh
Suite 804, Myers Bldg.
Springfield IL 62701
(217) 525-1199

Before FAIRCHILD, Chief Judge, SWYGERT, CUMMINGS, PELL, SPRECHER, TONE and BAUER, Circuit Judges.*