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Marple Township v. Lewis

ELR Citation: 13 ELR 20349
Nos. Nos. 74-925, 81-4627, (E.D. Pa., 08/30/1982) Injunction issued

The court enjoins the Federal Highway Administration (FHwA) and the Pennsylvania Department of Transportation from proceeding with construction or funding of 16.9 miles of the proposed Blue Route highway in Pennsylvania, finding that FHwA violated the National Environmental Policy Act (NEPA) and §4(f) of the Department of Transportation Act (DOTA). The court holds that FHwA failed to comply with its NEPA regulations because it proposed to reduce substantially the capacity of the highway, based on revised vehicle-mile projections, without preparing a supplemental environmental impact statement (EIS) or providing an opportunity for public comment on the changes. Even though the environmental consequences of the changes may be beneficial, the changes are substantial and constitute significant new information requiring a supplemental EIS, which should be open for public comment.

The court rejects plaintiffs' contentions that the final EIS/§4(f) statement is defective for failure to consider corridor alternatives. By the time FHwA began the draft EIS in 1974, the only realistic alternatives to the project, which the Department of Transportation (DOT) had approved in 1963, were alignment variations along the Blue Route corridor. Under NEPA, FHwA need not discuss unreasonable alternatives. Nor does compliance with NEPA trigger retroactive application of FHwA corridor location and design public hearing regulations. Public hearings held in 1961 on the corridor selection complied with requirements in effect at the time and reconsideration of the corridor was not necessary although both location and design should be considered in the supplemental EIS.

However, the court rules that the §4(f) statement approved by DOT is inadequate because it fails to establish that no feasible and prudent alternative routes existed to the selected route, which will cut through parkland and historic sites. The agency contended that alternative routes would disrupt local communities, business patterns, and land use planning, but the court finds that these are not unique or unusual factors so as to justify the taking of parkland under DOTA. The court directs defendants to prepare a new §4(f) statement that reflects any highway design changes, and to make a proper §4(f) determination.

The court rules that FHwA floodplain encroachment regulations are consistant with Executive Order No. 11988, which requires an agency to determine that no practical alternative exists to locating a highway in a floodplain. FHwA regulations interpret the order as applying only if a significant risk exists that emergency highway routes will be disrupted by flooding or a highway will have a significant adverse impact on a floodplain. However, the court does not rule on FHwA's analysis since defendants may need to reanalyze the project's impacts on floodplain encroachment in the supplemental EIS/§4(f) statement. Finally, the court declines to determine whether defendants are required to obtain a state floodplain construction permit underthe Pennsylvania Flood Plain Management Act because the agencies may substantially alter the project during the supplemental EIS process. The court also notes that the motives of plaintiffs are irrelevant to the litigation.

Counsel for Plaintiffs
Edward Mannino
Dilworth, Parson, Kalish & Kauffman
2600 Fidelity Bldg., Philadelphia PA 19109
(215) 875-7000

Counsel for Defendants
Susan Dein Bricklin, Ass't U.S. Attorney
3310 U.S. Cthse., 601 Market St., Philadelphia PA 19106
(215) 597-2556

John M. Hrubocak
Office of Chief Counsel
Dep't of Transportation, 1200 Transp. & Safety Bldg., Harrisburg PA 17120
(717) 787-5574

Myrna Field, Joseph Marshall III
Mid-Atlantic Legal Foundation, 1521 Locust St., Philadelphia PA 19102
(215) 545-1913