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Committee to Stop Route 7 v. Volpe

Citation: 2 ELR 20446
No. No. 15,054, 346 F. Supp. 731/4 ERC 1329/(D. Conn., 07/07/1972)

In this suit to enjoin expansion of Connecticut Route 7, although design approval could have been obtained prior to the effective date of the National Environmental Policy Act (Jan. 1, 1970), post-NEPA design approval is not exempted from compliance with the Act. Nor can Policy and Procedure Memorandum (PPM) 90-1 delay the application of NEPA until February 1, 1971, as it is in direct conflict with NEPA and is of no effect. Factors such as cost increases and safety hazards resulting from delay and the consideration already given to the environment by the state, will be accorded "little weight" by the court in determining whether the project should be enjoined. Such equities are based on the "totally erroneous" assumption that the project, on which irrevocable actions have not yet been taken, must in fact be built. However, one of the central purposes of NEPA is to require that the agency decision whether or not to build the project is made with full environmental consideration. The project is enjoined pending compliance with NEPA.

If an impact statement is prepared for small highway segments, NEPA's requirement of adequate consideration of alternatives cannot be met.Consideration of alternatives has two dimensions: an initial choice between building the road or relying on other means of transportation, and a subsequent choice among various alternate routes and designs.The test is whether the length selected assures adequate opportunity for the consideration of alternatives—both whether and where to build. A statement on a three-mile section of the 31 mile Route 7 does not meet this test.

The court also orders that the final impact statement be prepared by a federal official, and not a state official. In view of plaintiff's claim that rail transportation is one of the alternatives that must be considered, the court suggests that the proper federal agency to prepare the statement might be the Department of Transportation, and not the Federal Highway Administration. Section 4 (f) of the Deparrment of Transportation Act of 1966 is held inapplicable to parklands that are not "publicly owned."

Counsel for Plaintiffs
Haynes N. Johnson
Alphonse R. Noe
Bryan, Parmelle, Johnson & Bollinger
460 Summer Street
Stamford, Conn. 06901

Counsel for Federal Defendants
Henry S. Cohn Ass't. U.S. Attorney
450 Main Street
Hartford, Conn. 06103

Counsel for State Defendants
Clement J. Kichuk Ass't. Attorney General
Rm. 543 State Office Building
Hartford, Conn. 06115