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Action for Rational Transit v. West Side Highway Project

Citation: 12 ELR 20519
No. Nos. 74 Civ. 5572, 81 Civ. 3000, 536 F. Supp. 1225/17 ERC 1249/(S.D.N.Y., 03/31/1982)

The court enjoins the construction of a landfill in connection with the Westway highway project in New York City, declaring inadequate the environmental impact statement (EIS) relied upon by the Corps of Engineers before issuing a permit for the landfill. Though there is no merit to plaintiffs' claims that the proposed project would violate the Clean Air Act, the regional transportation plan promulgated pursuant thereto, or state law, the Corps has violated the National Environmental Policy Act (NEPA), the Federal Water Pollution Control Act (FWPCA), and the Rivers and Harbors Act by failing to consider the impact of the project on Hudson River fisheries, particularly the Atlantic coast striped bass, for which the proposed landfill area constitutes an important wintering area. The EIS, prepared by the New York Department of Transportation (New York DOT) and the Federal Highway Administration (FHwA) and relied on by the Corps, gives adequate consideration to alternatives, provides a detailed analysis on the social and economic impacts of the project, and contains a sufficient description of funding plans of the project. However, the court rules that the EIS does not adequately treat the project's impacts on the Atlantic coast striped bass and other Hudson River fisheries. After a lengthy riview of the facts and history of the case, the court states its conclusions of law. The court first notes that the case law clearly establishes that the purposes underlying NEPA are to give the public complete information on the environmental impacts of major federal undertakings and to ensure that federal agencies give adequate consideration to those impacts in their decisionmaking. The court holds that the Corps was under a duty to make a reasonable effort to ascertain the facts concerning the impact of the proposed landfill on fishery resources and to make public both these facts and the views of federal agency experts concerning the project's impacts. The Corps failed to meet these obligatios by relying on a 1977 final EIS prepared by FHwA and the New York DOT in spite of the objections of the federal fisheries experts and contradictory data produced by a later study. The Corps lacks the discretion to withhold such information even if it concludes that the harmful impacts of the project will not be critical to the fishery affected. In fact, the Corps was required to disclose not only the available data, but also responsible scientific views as to the risks resulting from the loss of habitat. In addition, the court holds that the Corps was obligated to prepare its own EIS assessing the fisheries impact of its permit issuance. The court invalidates the Westway landfill permit, and remands the case to the Corps for a new permit proceeding. Finally, the court holds that the NEPA violations also constitute violations of the FWPCA and the Rivers and Harbors Act. It amends its earlier dismissal of all claims in the suit challenging the FHwA's funding of the project, ordering a hearing on the question of whether the violation of NEPA requires an injunction against such funding.

In an order issed on April 14, 1982, the court reiterates its ruling in the case and sets out standards to govern the preparation of an EIS, should the application for a dredge and fill permit be refiled.

[For a digest of the court's subsequent ruling from the bench on the issue of FHA funding, see 12 ELR 20533—Ed.]

Counsel for Plaintiffs
William Hoppen
Jillson, Bedfore & Hoppen
Suite 2104, 250 Broadway, New York NY 10007-2561
(212) 962-3332

Albert K. Butzel, Michael B. Gerrard, Robert J. Sugarman
Butzel & Kass
45 Rockefeller Plaza, New York NY 10111
(212) 765-1800

Counsel for Defendants
Gary H. Baise, Jonathan Z. Cannon, Charles A. Patrizia, Carl Eardley
Beveridge & Diamond
1333 New Hampshire Ave. NW, Washington DC 20036
(202) 828-0200

Lawrence R. Liebesman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5383

John S. Martin Jr., U.S. Attorney; R. Nicholas Gimbel, Stuart M. Bernstein
One St. Andrew's Plaza, New York NY 10007
(212) 791-0555