The Second Circuit Reaffirms Greene County and Upholds Programmatic Impact Statement for Route 7 Corridor

In a major NEPA decision, the Second Circuit Court of Appeals has planted its feet firmly on a deck which, if not actually burning, indisputably smells of smoke. In companion highway cases decided December 11, the court held — despite decisions to the contrary in five circuits — that federal agencies must prepare their own environmental impact statements and cannot delegate the task to state officials or private parties.¹ The ruling reaffirmed the Second Circuit's 1972 decision in Greene County Planning Board v. FPC,² and conflicts with holdings of the Fourth, Fifth, Eighth, Ninth, and Tenth Circuits that significant and active participation by the federal agency is sufficient to satisfy NEPA. ³ The clear split of authority paves the way for a resolution of the issue in Supreme Court, which has so far avoided the question, denying certiorari in Greene County and in two of the contrary cases. The Court of Appeals also upheld a lower court's ruling that the impact statement on a 20-mile segment of what will eventually be a 280-mile superhighway must consider the environmental effects of the entire highway.

Conservation Society of Southern Vermont v. Secretary of Transportation is one of a number of suits engendered by the construction of U.S. Route 7 in New England.⁴ Vermonters in particular have felt the effect of their state's increased accessibility to Eastern population centers, and many have opposed the new highways that bring the tourists and second-home buyers to Vermont in ever greater numbers.

In the district court, Circuit Judge James Oakes, sitting by designation, granted a permanent injunction against further work on a twenty-mile segment of the roadway. He found that though there was no clearly articulated federal plan to convert Route 7 into a superhighway extending from Norwalk, Connecticut, to Burlington, Vermont, the completion of such a road was a goal of the three state highway departments involved. Federal officials were aware of this plan, according to the court, and federal assistance was provided from time to time, so that in effect, state and federal agencies were acting in "partnership." Citing Scientists' Institute for Public Information (SIPI) v. AEC,⁵ Judge Oakes directed the FHWA to prepare a comprehensive impact statement covering the entire 280-mile Route 7 corridor, lest a series of decisions on small segments lead to an irreversible commitment of resources to the larger project. The court also ruled that the FHWA had improperly delegated preparation of the impact statement to the Vermont Highway Department, whose bias in favor of the project was dictated by Vermont law; state statute required the highway department to carry out the dictates of the legislature, which authorized the construction in 1968. The court found that the FHWA's action directly contravened the Second Circuit's decision in Greene County.

In the second case, Vermont Natural Resources Council v. Brinegar, environmentalist plaintiffs sought to halt construction of an interchange linking U.S. Route 2 with Interstate 91. Without such a connection, traffic between the two highways would be diverted through the streets of the town of St. Johnsbury. The plans called for the channelization of one mile of the Sleepers River. The plaintiffs charged that the EIS was defective in that it was prepared by state rather than federal officials and that it failed to consider alternatives to the plan. The complaint also charged that channelization of the river required a permit under the Federal Water Pollution Control Act Amendments of 1972.

Though District Judge Coffrin found that the failure of the EIS to consider alternatives to the project was in violation of NEPA, he refused on several grounds to enjoin further construction. The interchange was essential, the court found, to prevent an intolerably dangerous traffic flow through St. Johnsbury's narrow streets. It was inevitable that the interchange would be built, and it would therefore be an unreasonable elevation of form over substance to demand a halt to the project while an EIS considering alternatives was prepared. Because Vermont's climate permits roadbuilding for only a limited number of months, such a delay could postpone the opening of the interchange for a full year. The court noted that rapidly rising construction costs and unemployment rates would impose further burdens on the state defendants. It observed that the equitable power to issue injunctions is above all discretionary, and in this case, despite the NEPA violation, the equities clearly favored the defendants.

The district court also considered the issue of the FHWA's delegation of its responsibility to prepare impact statements. Here, the EIS was prepared by the Vermont [5 ELR 10031] Highway Department, subject to FHWA review, in full accordance with the agency's own guidelines, as set out in PPM 90-1 and approved by the Council on Environmental Quality. This was not the "abdication of responsibility" which the Second Circuit had condemned in Greene County, however; the FHWA was in "almost constant communication" with state officials, said Judge Coffrin, "its input was included" in the EIS, and it helped prepare responses to comments on the draft statement.

The district court recognized that while the case before it might be distinguishable from Greene County, it could not be distinguished from Conservation Society of Southern Vermont and two other district court cases within the Second Circuit,⁶ all of which had found the delegation violative of NEPA. Citing the decisions of the Fifth Circuit in F.A.I.R. v. Volpe, the Eighth Circuit in Iowa Citizens for Environmental Quality v. Volpe, and the Ninth Circuit in Life of the Land v. Brinegar,⁷ the district court declared, however, that while NEPA required substantial federal participation in preparing the EIS, exclusive federal authorship was not mandated. It reasoned that the state highway department was in the best position to evaluate the environmental consequences of the roads, since it planned, designed, and built them. Despite its respect for the decisions of other district courts within the Second Circuit, the court could not agree that Greene County demanded that federal officials and federal officials alone must prepare the impact statement.

The Second Circuit, in an opinion written by Judge Adams, first considered the delegation issue. The court noted that NEPA requires federal agencies to "include in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment, a detailed [environmental impact] statement by the responsible official [emphasis supplied]…. Prior to making any detailed statement, the responsible Federal official shall consult with [other Federal agencies] …." This language was interpreted by Chief Judge Kaufman in Greene County as an explicit statement that the EIS must be prepared by the responsible federal agency.

On reexamining the question, the Court of Appeals found that the terms of the statute, respect for precedent, and logic dictated the same result. The state highway department, according to the court, is by definition committed primarily to serving state interests rather than broader environmental concerns. The federal agency, it reasoned, is much more likely to produce the "dispassionate appraisal" that is NEPA's objective. The court also reasoned that by placing unambiguous responsibility on federal officials, case-by-case adjudication of the validity of impact statements can be avoided, and judicial intrusion into the administrative process kept to a minimum. The court pointed out that the CEQ guidelines on impact statement preparation were amended to comport with Greene County, and presently state that "in all cases, the agency should make its own evaluation of the environmental issues and take responsibility for the scope and content of draft and final environmental statements."

The court mentioned the argument that impact statement preparation by the FHWA would be unreasonably burdensome to the agency, but declared that "the problems entailed in conforming to Greene County are tractable." It explained this statement in a footnote.

A shortage of agency personnel to prepare impact statements was, said the court, a problem for Congress' resolution, not the courts'. The FHWA already paid the Vermont Highway Department a share of the cost of EIS preparation proportional to the share of construction costs underwritten by the federal government. "It has been suggested," the footnote went on, "that states might be asked to continue to pay their portion of costs when the FHWA prepares the EIS. No financial constraints operating on FHWA would thus hamper their ability to prepare the EIS." There followed a citation to two ELR Comments⁸ advocating that the Independent Offices Appropriations Act of 1952 be used to shift the cost of EIS preparation from the government to the party whose planned action necessitates the EIS, and to the recent Supreme Court decision upholding the FCC's adoption of a fee schedule under that statute.

The court, having reaffirmed its adherence to Greene County, upheld Judge Oakes' disapproval of the FHWA's delegation to the state officials, and it reversed that part of Judge Coffrin's opinion which held Greene County to be distinguishable.

The Second Circuit also supported Judge Oakes on the issue of the scope of the impact statement. The question seems at first one of segmentation — that is, whether the government can avoid preparing an impact statement on the environmental effects of a major highway by preparing instead individual impact statements on short segments of road, none of which by itself would have a major impact on the environment. This issue has been litigated frequently, as in Indian Lookout Alliance v. Volpe,⁹ in which plaintiffs successfully challenged the validity of the EIS for a 14-mile segment of a road linking two interstate highways. Since the particular segment did not include the intersection with either of the interstates, the EIS contained no analysis [5 ELR 10032] of the effect of traffic between the two superhighways.

The Court of Appeals recognized, however, the Conservation Society case did not involve anything so clear-cut as a conscious design to evade NEPA. The court did not contend that the 20-mile highway segment was part of a formulated master plan.Rather, it supported Judge Oakes' view that "an ultimate Route 7 superhighway is the expectation [emphasis supplied] of state agencies with the knowledge and cooperation of the federal government." Having established the existence of a long-range plan by inference (or by construction, one is tempted to say), the court next considered whether a programmatic impact statement was required. The court agreed with Judge Oakes that the proper analog was SIPI, in which the D.C. Circuit ruled that the AEC must prepare an impact statement on the Liquid Metal Fast Breeder Reactor program, even though the project was still at the research and development phase. The SIPI court was concerned that by small increments, the government would make "irreversible and irretrievable commitments of resources" and thereby foreclose alternatives. In the case of Route 7, all highway construction tended to commit state and federal agencies still further to primary reliance on the automobile rather than on rail or other means of transportation. The court therefore affirmed Judge Oakes' grant of a permanent injunction against continued work on the Route 7 segment pending completion of an EIS covering the entire Route 7 corridor.

In the Sleepers River Interchange case, on the other hand, the court let stand Judge Coffrin's denial of an injunction, although it found the EIS to have been defective in two regards: its failure to consider alternatives, and its preparation by state rather than federal officials. The court rejected the plaintiffs' contention that the clear violation of NEPA entitled them to an immediate injunction: "Ordinarily, we would not take issue with a rule that, where other things are equal, a clear violation of a statute embodying a strong national policy merits injunctive relief." Here, however, the court agreed with Judge Coffrin that a "constellation of factors" — the project's advanced stage of completion, the virtual certainty that the interchange would be built, and the hardship of the defendants and to residents of St. Johnsbury — tipped the balance of equities in favor of the defendants.¹⁰

The Second Circuit's decision in the companion cases of Conservation Society and Vermont Natural Resources Council is a heartening development in several respects. Its reaffirmation of Greene County, despite the contrary decisions of five circuit courts of appeals, seems amply supported by both the letter and spirit of NEPA. Its suggestion that the Independent Offices Appropriations Act affords a means of recouping the cost of preparing impact statements should be an encouragement to federal agencies — especially the Council on Environmental Quality, which has denied that the statute can be used for that purpose — to adopt such a policy. Lastly, its pragmatic approach to the question of when injunctive relief should be granted is a reminder that environmentalists may gain the most, in the long run, if they simultaneously insist on compliance with the law and avoid obstructionism. To obstruct a project in order to force its cancellation, where that is a feasible alternative, or to compel a change of plans, or to use delay as a lever to extract environmental concessions in a settlement agreement, is often highly desirable. But the environmental litigator must choose targets wisely, and be as aware of the practicalities and substance of each case as of its form. In the Sleepers River Interchange case, traffic accidents in the streets of St. Johnsbury would, in addition to causing human suffering, only create resentment against environmental litigators and the statutes they use. The Second Circuit's flexible viewpoint may be a way of saving environmentalists from themselves.

1. Conservation Society of Southern Vermont v. Secretary of Transportation, 5 ELR 20068 (2d Cir. Dec. 11, 1974).

2. 2 ELR 20017.

3. Movement Against Destruction v. Volpe, 4 ELR 20278 (4th Cir. 1974); Finish Allatoona's Interstate Right v. Brinegar, 3 ELR 20769 (5th Cir. 1973); Iowa Citizens for Environmental Quality v. Volpe, 4 ELR 20056 (8th Cir. 1973); Life of the Land v. Brinegar, 4 ELR 20295 (9th Cir. 1973); Citizens Environmental Council v. Volpe, 4 ELR 20009 (10th Cir. 1973).

4. See Citizens for Balanced Environment and Transportation v. Volpe, 4 ELR 20798 (2d Cir. 1974); Committee to Stop Route 7 v. Volpe, 2 ELR 20610, 20610 (D. Conn. 1972).

5. 3 ELR 20525 (D.C. Cir. 1973).

6. I-291 Why? Association v. Burns, 4 ELR 20230 (D. Conn. 1974); Committee to Stop Route 7 v. Volpe, 3 ELR 20610, 20446 (D. Conn. 1972).

7. See Note 3, supra.

8. Comments, The Independent Offices Appropriations Act of 1972; Who Should Pay for the Impact Statement, 3 ELR 10059; More on the Independent Offices Appropriations Act of 1952, 3 ELR 10086 (1973).

9. 3 ELR 20739 (8th Cir. 1973).

10. For the same reason, it declined to enjoin channelization of the Sleepers River, which, the plaintiffs claimed, required a permit under the Federal Water Pollution Control Act Amendments of 1972. Judge Coffrin in the district court ruled that the plaintiffs had failed to give 60 days' notice as required for a citizen's suit under the FWPCA, and that his court therefore lacked jurisdiction to hear the claim. The Court of Appeals disagreed, holding, with the D.C. Circuit inNRDC v. Train, that the 60-day provision was not an absolute barrier to all suits under the Act, as jurisdiction could be based on other statutes.