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Keith v. Volpe

Citation: 2 ELR 20425
No. No. 72-355-HP, 352 F. Supp. 1324/4 ERC 1350/(C.D. Cal., 07/07/1972) Motion for preliminary injunction granted in part

Plaintiff corridor residents seek a preliminary injunction against further work on the seventeen-mile Century Freeway (I-105) in Los Angeles County. The motion is granted in part. The Court finds that the requirements of the National Environmental Policy Act apply, since the work has not yet reached that state of completion where the costs of abandoning or altering the proposed route would clearly outweigh the benefits therefrom. Where only three of eight segments had received design approval before the Act became effective, the planning stage had not been completed, and it was still practicable to file an impact statement. The provisions of FHWA Interim Guidelines calling only for "reassessment" of highways given design approval between January 1, 1970, and February 1, 1971, are not authorized by NEPA; Section 102 duties are not inherently flexible. Where air pollution effects had not been closely examined in the planning process, NEPA requires such examination, using currently available techniques. The statement should consider polution dispersal and the extent to which the freeway will increase automotive traffic. Noise pollution should also be examined. NEPA mandates considerationof all possible alternatives, including abandonment of the undertaking. Existing commitments of resources are not to be ignored, but agency duties go beyond statement preparation to include an actual, good faith evaluation of the wisdom of proceeding.

The California Environmental Quality Act, modeled on NEPA, which also requires an impact statement, must be followed by state defendants for the same reasons. In view of the scant consideration given to noise and air pollution at design hearings in 1968 (under 23 U.S.C. § 128(a) and PPM 20-8), new design hearings are necessary. Given the NEPA requirement of good faith reconsideration of the entire project, new corridor hearings will also be called for. Defendant's decision on re-evaluation must be based on a balancing of the costs and benefits of each alternative course of action.

The court also finds that assurances as to relocation assistance programs and housing availability must be tied to the specific project, and statewide assurances do not suffice. Plaintiff failed to prove that relocation services were insufficient, but did show that defendants' computations as to available replacement housing were defective.

The Court declines to use the usual test of likelihood of success on the merits in weighing the preliminary injunction, since any delay in relief could undermine the rights which plaintiffs claim. Defendants are ordered to comply with NEPA and the California Environmental Quality Act, to hold new public hearings, and to prepare a new relocation study before going ahead with work on I-105. The court declines to pass on plaintiffs' Fifth and Fourteenth Amendment claims, in view of the relief granted.

Counsel for Plaintiffs
brent N. Rushforth
Fredric P. Sutherland
Center for Law in the Public Interest
10203 Santa Monica Boulevard
Los Angeles, California 90067

Rosalyn M. Chapman
Western Center on Law and Poverty
1709 West Eighth Street, Suite 600
Los Angeles, California 90017

J. Anthony Kline
Public Advocates, Inc.
433 Turk Street
San Francisco, California 94102

Co-Counsel for Plaintiff Sierra Club
Beatrice Challiss Laws
Sierra Club Legal Defense Fund
311 California Street
San Francisco, California 94104

Co-Counsel for Plaintiff Environmental Defense Fund, Inc.
Thomas J. Graff
Environmental Defense Fund, Inc.
2728 Durant Avenue
Berkeley, California 94704

Counsel for Federal Defendants
William D. Keller, U.S. Attorney
Frederick M. Brosio, Jr., Asst. U.S. Attorney
Gary H. Giesler, Asst. U.S. Attorney
Matther A. Schumacher, Asst. U.S. Attorney
1100 U.S. Courthouse
312 North Spring Street
Los Angeles, California 90012

Counsel for State Defendants
Harry S. Fenton
Joseph A. Montoya
Kingsley Hoegstedt
Norval Fairman
Charles E. Spencer, Jr.
107 South Broadway, Suite 9111
Los Angeles, California 90012