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Cobble Hill Ass'n v. Adams

Citation: 9 ELR 20710
No. No. 79-C-643, 470 F. Supp. 1077/(E.D.N.Y., 10/04/1979)

Granting defendants motion for summary judgment, the court dismisses a complaint which sought to enjoin a federally funded highway repair and renovation project pending compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009, and the National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470-470t, ELR STAT. & REG. 41452. Plaintiffs charged that the temporary detour plans to reroute traffic while portions of the Brooklyn Queens Expressway are repaired would cause inconvenience, noise, air pollution, and vibration, necessitating preparation of an environmental impact statement (EIS).The state highway department had concluded that the project was not a major federal action and that neither an EIS nor a negative declaration were required.

The court first states its standard of review of the Federal Highway Administration (FHWA) action approving the project and the detour plans as whether the agency action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." Administrative Procedure Act, 5 U.S.C. § 706(2)(A), ELR STAT. & REG. 41005. See also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971); Hanly v. Kleindienst, 471 F.2d 823, 2 ELR 20717 (2d Cir. 1972). The issue is the rationality of government decision making, Cross-Sound Ferry Services, Inc. v. U.S., 573 F.2d 725, 8 ELR 20311 (2d Cir. 1978); if the government action is reasonably related to a permissible objective, it is entitled to great deference. On the basis of the administrative record, the court concludes that there are no genuine issues of fact to be litigated and that defendants are entitled to judgment as a matter of law.

Rejecting plaintiffs' NEPA claims, the court upholds the determination that the project is not a major federal action and that no EIS is required, noting that it will have no long-term environmental consequences. The only environmental effects will be those incidental to the repair work, which contemplates preservation of the highway and not a departure from its present use. See Hanly v. Kleindienst, supra. The FHWA finding cannot be considered arbitrary or capricious, see Sierra Club v. Adams, 586 F.2d 832, 9 ELR 20548 (2d Cir. 1978). The court also rejects the argument that the permanent closing of one exit to the highway segments the project so as to avoid NEPA. See Conservation Soc'y of S. Vt. v. Secretary of Transp., 531 F.2d 637, 6 ELR 20207 (2d Cir. 1976). Finally, the court rejects plaintiffs' argument that defendants did not adequately consider alternatives to the project, such as construction of a new highway, because repair of the present highway is necessary in any event. Alternative detour plans were considered, and plaintiffs are partly responsible for the final plans.

Regarding the NHPA claims, the court notes that the threat which plaintiffs perceive to the Cobble Hill Historic District from the detour plans is indirect at best as the plans will send traffic around the neighborhoods. Plaintiffs' arguments are not weighty under the circumstances, and defendants have already considered the additional noise and air pollution in the area. The purposes of the act have been served in the circumstances under review.

The full text of this opinion is available from ELR (15 pp. $2.00, ELR Doc. No. C-1186).

Counsel for Plaintiffs
Jeffrey L. Glatzer, Mark A. Harmon
Bondy & Schloss
6 E. 43d St., New York NY 10017
(212) 661-3535

Counsel for Defendants
Marilyn Go, Ass't U.S. Attorney; Edward R. Korman, U.S. Attorney
U.S. Courthouse, 225 Cadman Plaza East, Brooklyn NY 11201
(212) 330-7106

Richard H. Thomas, Regional Counsel
Federal Highway Administration
Leo W. O'Brien Fed. Bldg., Room 729, Clinton Ave. & N. Pearl St., Albany NY 12207
(518) 472-6476

Counsel for New York State Defendants
Eileen F. Shapiro, Ellen Marks, Ass't Attorneys General; Robert Abrams, Attorney General
2 World Trade Center, New York NY 10047
(212) 488-4141

Counsel for New York City Defendant
Joseph F. Bruno, John C. Brennan, Susan Rosenberg, Ass't Corporation Counsel; Allen G. Schwartz, Corporation Counsel
100 Church St., New York NY 10007
(212) 566-3929

Neaher, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]