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Joseph v. Adams

ELR Citation: 9 ELR 20468
Nos. No. 76-40076, 467 F. Supp. 141/(E.D. Mich., 04/27/1978)

Denying plaintiffs' and defendants' cross-motions for summary judgment in a suit seeking declaratory and injunctive relief with respect to the proposed extension of Dort Highway near Flint, Michigan, the court finds that the federal defendants have violated their duties under the National Environmental Policy Act (NEPA) and the Federal-Aid Highway Act and remands the case in order that they may comply with such obligations. Jurisdiction over the suit lies under 28 U.S.C. §1331(a) because the action arises under the laws of the United States and the plaintiffs' allegation that there is at least $10,000 in controversy has not been shown to be false with certainty; jurisdiction by way of mandamus is also conferred by 28 U.S.C. §1361. State defendants' threshold defense based on the Eleventh Amendment is rejected because plaintiffs sought declaratory and injunctive, as opposed to compensatory, relief. As a final threshold matter, the plaintiffs have standing to maintain the suit, since they alleged injury-in-fact to interests which fall within the zone of interests sought to be protected by NEPA.

The court rejects defendants' argument that NEPA is inapplicable to the proposed project because federal approval of the design was given prior to the enactment of the statute. Noting a split among the circuits on the question of the retroactive application of NEPA, the court follows the rule applicable in the Second Circuit: NEPA's requirements are applicable whenever significant steps in a given project have yet to be taken as of the date of enactment. Since in this case the decision to provide federal funding of the highway expansion was not made until 1976, defendants' nonretroactivity defense is unavailing. As to the standard of review to be applied in reviewing an agency's negative determination, the court declines the use of the arbitrary and capricious standard in favor of a rule of reason. Under the latter standard, a negative determination will be upheld only where the agency has taken a hard look at all relevant areas of environmental concern and has made a convincing case that the impacts are insignificant. An environmental impact statement (EIS) must be prepared for any fedral action of which the reasonably expected environmental consequences would, in light of the substantive policies of NEPA, affect a major decision concerning the proposal. The court finds, however, that defendants' negative determination is deficient in two main respects: it does not adequately investigate all the environmental issues raised by the plaintiffs and, with respect to several of the environmental issues considered, it does not explain why those effects are not significant. In addition, the document does not disclose the ways in which the anticipated environmental impacts will be mitigated. Because of these deficiencies, the court cannot evaluate the negative determination meaningfully, and remands it to the agency for further elaboration. If defendants ultimately decide that an EIS is required for the project, it need address only the specific highway project in question, not a larger highway development program of which, plaintiffs allege, it is a part. As a final matter under NEPA, the court finds that defendants have violated their duty under §102(2)(C) to consider fully alternatives to the project and must cure this violation on remand.

The court further holds that the 1966 public hearing on the project was inadequate under a 1958 amendment to the Federal-Aid Highway Act. Since a substantial degree of project planning remained to be completed as of the 1968 amendment, the defendants in this case are subject to the mandate of the 1968 enactment and must hold the hearing required thereunder. Defendants' claim of laches is summarily rejected: any delay by plaintiffs was not unreasonable, and in any event did not prejudice defendants. As to relief, since construction on the project does not appear imminent, the court declines to issue an injunction restraining it. Instead, defendants are ordered to submit a supplemental negative determination and a transcript of the hearing required by the court.

Counsel for Plaintiffs
Patrick H. Hynes
G-4415 Corunna Rd., Flint MI 48504
(313) 733-6540

Ronald L. Joseph
226 W. Court St., Flint MI 48502
(313) 234-2655

Peter W. Steketee
505 Peoples Bldg., 60 Monroe Ave. NW, Grand Rapids MI 49502
(616) 451-8341

Counsel for Defendants
Frank Kelley, Attorney General; Janis Meija, Francis J. Carrier, Ass't Attorneys General
525 W. Ottawa, Lansing MI 48913
(517) 373-1110