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Nashvillians Against I-440 v. Lewis

ELR Citation: 12 ELR 20616
Nos. No. 80-3722, 524 F. Supp. 962/(M.D. Tenn., 09/23/1981)

The court holds that officials planning the construction of Interstate Highway 440 (I-440) in Nashville, Tennessee, complied with the Department of Transportation Act, the National Historic Preservation Act (NHPA), and the National Environmental Policy Act (NEPA). First, it rejects plaintiffs' claim that approval of the project should be rescinded since they were deprived of rights created by the withdrawal and transfer of funds provisions of the Federal-Aid Highway Act (FAHA), holding that these provisions afford plaintiffs no right to compel any official act. In addition, it holds that the failure of the project's final environmental impact statement (EIS) to discuss an amendment to the withdrawal and transfer of funds provisions was not a fatal defect since the amendment provided no rights to plaintiffs. Next, the court finds that defendants properly complied with §4(f) of the Department of Transportation Act, ELR STAT. & REG. 41605. A §4(f) statement need not be prepared for historic areas not on the I-440 right-of-way, since effects such as noise, land use changes, property value diminution, and air pollution do not constitute a "use" of the areas and would not affect their architectural integrity or historic value. Moreover, defendants properly took into account the project's effects on these areas and allowed comment by the Advisory Council on Historic Preservation as required by §106 of the NHPA. Applying an "arbitrary and capricious" standard of review, the court finds that the §4(f) statement prepared for the Granny While Pike, an historic site crossed by the project, properly concluded that no feasible and prudent alternative to the crossing of the pike would accomplish the objectives of I-440. In addition, the statement contained a detailed discussion of measures to mitigate the project's impact on the pike. Next, the court refuses to find that the Tennessee Department of Transportation (TDOT) evidenced bad faith in the EIS preparation process, either in its method of consultation, its traffic forecasts, its consideration of alternatives, its air quality projections, or in any predisposition to build the project. The fact that TDOT planned and proposed the project prior to learning that an EIS would be required did not show bad faith since NEPA requires objectivity rather than impartiality and TDOT gathered a large amount of evidence showing a need for I-440 or a similar facility. Turning to plaintiffs' challenges to the adequacy of the project's EIS, the court approves the omission of detailed discussion of a "no action" alternative from the statement. It was acceptable for defendants to discuss a "no build" alternative involving improvements to existing streets instead. The court further holds that the traffic count data relied on in the EIS were not shown to be erroneous and that the EIS adequately discussed the project's impact upon air quality as well as the noise pollution that would emanate from it. Defendants were not required in the EIS to show how noise control standards promulgated under §9(i) of the FAHA, ELR STAT. & REG. 41601, would be complied with. Since the record, including botanical surveys, fails to show that any endangered species would be affected by the project, issues do not arise under the Endangered Species Act. Nor was any deficiency shown in the EIS's discussion of hazardous materials transportation. In addition, the court concludes that plaintiffs' allegations of violations of the applicable public hearing requirements, 23 C.F.R. pt. 790, and their argument that the highway construction would have racially discriminatory effects by creating a barrier between neighborhoods, lack merit. The court finds no basis for plaintiffs' claim that the EIS must incorporate an affirmative action plan under Title VI of the Civil Rights Act of 1964. Finally, the court rejects plaintiffs' charge that the Secretary of Transportation failed to engage in the comprehensive long-range planning process required by 23 U.S.C. §134.

The full text of the opinion is available from ELR (38 pp. $5.25, ELR Order No. C-1278).

Counsel for Plaintiffs
Larry Woods, Jinx S. Woods
Woods, Bryan & Thomas
121 17th Ave. S., Nashville TN 37203
(615) 259-4366

Counsel for Defendants
Hal D. Hardin, U.S. Attorney; Aaron Wycoff
879 U.S. Cthse., 801 Broadway, Nashville TN 37203
(615) 251-5151

William M. Leech Jr., Attorney General; Donald W. Schwendimann, Donald L. Corlew
450 James Robertson Pkway., Nashville TN 37219
(615) 741-3491

Morton, J.