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New York, City of v. Department of Transp.

Citation: 12 ELR 20461
No. No. 81 Civ. 1778 (ADS), (S.D.N.Y., 02/19/1982)

The court invalidates regulations issued by the Department of Transportation (DOT) under the Hazardous Materials Transportation Act (HMTA) concerning the transportation of radioactive materials, insofar as the regulations overried nonfederal bans on truck transportation of spent fuel and other large quantities of radioactive materials through densely populated areas. It holds that DOT's environmental assessment for the rules fails to comply with the National Environmental Policy Act (NEPA) and that the rules are not adequately justified under the HMTA. The regulations provide in part that any state or local routing rule is inconsistent with the regulations if it prohibits highway transportation between any two points without providing an alternate route. This provision would override § 175.111 of the New York City Health Code, which prohibits use of the highways for shipments through New York City of specified radioactive materials.

Initially, the court upholds DOT's authority to adopt the challenged regulations. Neither § 105 of the HMTA, requiring promulgation of regulations, nor § 112(b), providing for the waiver of preemption of state requirements, represents an unconstitutional delegation of legislative authority. These provisions set forth regulatory standards that are sufficiently precise, and are well within the commerce power of Congress. They do not violate the Tenth Amendment since Congress' commerce power is not limited by the Tenth Amendment and HMTA does not regulate the "states as states" or otherwise impair recognized Tenth Amendment rights. The court further holds that DOT did not exceed its authority under HMTA by regulating so as to permit the freer transport of a hazardous substance since DOT found that the establishment of a national plan for transporting radioactive materials promotes safety and efficiency. To the extent that the challenged regulations are not ruled invalid below, the court declares them to preempt state requirements unless and until the Secretary makes a determination of nonpreemption. The court also upholds DOT's generic declaration that specific types or categories of nonfederal rules are inconsistent with federal requirements under the HMTA.

Under NEPA, the court upholds DOT's issuance of a finding of no significant impact (FONSI) insofar as the challenged regulations relate to highway transport of materials insufficiently toxic to cause great harm in the event of an accident. It was proper for DOT to rely upon the reports of other agencies in evaluating the environmental impact of the rule. To the extent that risks associated with a particular form of transport are negligible, DOT reasonably concluded that examination of the feasibility of alternative modes was unnecessary. To the extent, however, that the regulations mandate the transportation of dangerous radioactive materials through densely populated areas, the court holds the FONSI to be arbitrary and capricious. DOT's estimate of the probability of a high-consequence accident was contrary to the evidence and did not take into account the possibility of human error and sabotage. In addition, DOT developed an inadequate record on the social impacts of such an accident: an agency may not declare simply that public concern is unjustified. DOT also erred in considering only the overall risk and consequences of all accidents involving transportation of nuclear materials and in failing to recognize that a miniscule but nevertheless credible risk of a high-consequence accident can be a source of environmental significance. In considering the impacts of its regulations, DOT also improperly omitted consideration of the fact that they run counter to local, state, and federal policies on radioactive materials transportation and environmental protection.

The court next holds that DOT failed to give adequate consideration to alternatives under § 102(2)(E) of NEPA and under Council on Environmental Quality regulations, whose mandate DOT has accepted by adopting them formally. DOT's failure to consider non-highway alternatives such as barging was improper because all transport options are within DOT's mandate under HMTA. Similarly, it was impermissible for DOT to defer consideration of alternatives to the future or to shift the burden of considering alternatives to nonfederal authorities by means of regulations requiring them to justify their bans on highway transport. The court holds that DOT may not omit discussion of alternative modes of transport on grounds that highway transport is so safe that no carrier should be required to use another mode. The record shows that the risk of an extremely serious highway accident is "credible" and "important" and, moreover, that the alternative of barging may be substantially safer and less expensive. Since the duty to consider alternatives potentially exists whenever an agency action has an environmental impact, whether or not significant, barge transportation was an appropriate alternative for study. DOT's allegation that it considered this alternative is not supported by general references to several reports that it placed in the record but did not analyze.

Finally, under the HMTA, the court holds that DOT's responsibilities are not limited to ensuring a minimum level of safety for whatever mode of transportation is commercially preferred. DOT is obligated to adopt the safer option among transportation modes unless it is impractical or impairs the achievement of some other national policy. On the record, DOT failed to meet this standard. The court orders the parties to confer with a view to agreeing upon a proposed judgment reflecting the court's decision. Pending entry of judgment, it permanently enjoins DOT from enforcing its regulations to the extent required by the court's opinion.

The full text of the opinion is available from ELR (134 pp. $17.25, ELR Order No. C-1277).

Counsel for Plaintiff
Frederick A. O. Schwarz Jr., Corporation Counsel; Stephen P. Kramer, Barry L. Schwartz, Alan D. Levine
100 Church St., New York NY 10007
(212) 566-3929

Counsel for Plaintiff-Intervenor New York
Robert Abrams, Attorney General; Ezra I. Bialik
2 World Trade Ctr., New York NY 10047
(212) 488-7490

Counsel for Defendants
John S. Martin Jr., U.S. Attorney Twila L. Perry
One St. Andrew's Plaza, New York NY 10007
(212) 791-0055

Counsel for Defendants-Intervenors and Amici Curiae
Harry H. Voight, Leonard M. Trosten, Mindy A. Buren
Le Boeuf, Lamb, Leiby & MacRae
140 Broadway, New York NY 10005
(212) 269-1100

Sofaer, J.