Green Mountain Grange No. One v. Goldschmidt

No. 80-265 (D. Vt. November 26, 1980)

The court refuses to enjoin defendants from proceeding with the construction of a highway in Vermont, ruling that plaintiffs are unlikely to succeed on the merits of their claim that the environmental impact statement (EIS) prepared for the project did not adequately consider the environmental impacts of and alternatives to the proposed project. Limiting its review to a determination of whether the EIS was compiled in good faith and provides adequate information for a decisionmaker to consider the environmental effects of the project, the court determines that defendants adequately considered the project's impact on agricultural lands and that the EIS contains an extensive discussion of alternatives. In addition, the court finds that neither a Council on Environmental Quality memorandum on agricultural land impacts, the energy crisis, nor a Vermont Department of Transportation position paper constitute significant new information requiring preparation of a supplemental EIS under Federal Highway Administration (FHWA) regulations. Further, the court rules that plaintiffs would be barred by the doctrine of laches from arguing that defendants have failed to hold public hearings as required by FHWA regulations because of plaintiffs' 14-year delay in bringing suit. Finally, the court finds that plaintiffs have not established sufficiently serious questions or hardships to warrant issuance of injunctive relief.

Counsel for Plaintiffs
Harvey D. Carter Jr.
Witten & Carter
109 Silver St., Bennington VT 05201
(802) 442-6324

Darby Bradley
Vermont Natural Resources Council
7 Main St., Montpelier VT 05602
(802) 223-2328

Counsel for Defendants
William B. Gray, U.S. Attorney
P.O. Box 570, Burlington VT 05402
(802) 951-6725

[11 ELR 20079]

COFFRIN, J.:

Opinion and Order

Plaintiffs filed suit on October 8, 1980 to enjoin construction of an eleven mile stretch of four lane highway connecting the designated terminus of I-93 in Littleton, New Hampshire with I-93 in the northeast corner of Vermont. The proposed route commences at the Vermont-New Hampshire state line and passes through the Vermont towns of Waterford and St. Johnsbury. Although at the time this action was commenced plaintiffs assumed that construction on the project would not begin until Spring 1981, it now appears that the Vermont Department of Transportation has let one construction contract and plans to let two more in the immediate future. Accordingly, plaintiffs now seek a temporary restraining order and preliminary relief enjoining defendants and those acting under their authority from awarding contracts and proceeding with construction on the project. For the reasons set out below, we decline to issue a temporary restraining order.

Plaintiffs include several farmers across whose lands the proposed highway will pass. Additional plaintiffs include the Vermont Natural Resources Council (VNRC), the Vermont State Grange and the local chapter of the Grange. Named as defendants are the Secretary of the United States Department of Transportation (DOT), the Regional Administrator of the Federal Highway Administration (FHWA), the Division FHWA Administrator, and the Secretary of the Vermont Department of Transportation.

As a basis for their cause of action, plaintiffs allege that the environmental impact statement (EIS) prepared by defendants did not adequately consider the environmental impact of and alternatives to the proposed project as required by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332. More specifically, plaintiffs maintain that the impact of the proposed construction on agricultural land across which the project will pass and the effect of the energy crisis on the need for additional highway construction was inadequately addressed in the EIS. Plaintiffs also claim that defendants did not prepare a supplemental EIS as required by FHWA regulations, 23 C.F.R. § 771.15 (1980). Additionally, plaintiffs allege that defendants did not comply with the public hearing requirements established by the Federal-Aid Highway Act, 23 U.S.C. § 128, and regulations thereunder, 23 C.F.R. § 790.5, et seq. (1980).

The standard for preliminary injunctive relief calls for a showing of (1) irreparable harm and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Jackson Dairy, Inc. v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir. 1979). Based upon the pleadings, the motion papers submitted in connection with plaintiffs' request for preliminary [11 ELR 20080] relief and the arguments advanced by counsel at a hearing on November 17, 1980, we conclude that plaintiffs' prayer for relief fails to make the requisite showing called for by the second branch of this standard.

1. Plaintiffs are unlikely to prevail on the merits.

a. Adequacy of the EIS

In challenging the EIS, plaintiffs bear the burden of establishing its inadequacy. Monroe County Conservation Council v. Adams, 566 F.2d 419, [8 ELR 20077] (2d Cir. 1977), cert. denied, 435 U.S. 1006 (1978). Moreover, in reviewing the adequacy of the EIS and procedural compliance with NEPA, the role of a district court is limited. Its task is merely "to determine whether the EIS was compiled in objective good faith and whether the resulting statement would permit a decisionmaker to fully consider and balance the environmental factors." Sierra Club v. Morton, 510 F.2d 813, 819 [5 ELR 20249] (5th Cir. 1975), cited with approval in County of Suffolk v. Secretary of Interior, 562 F.2d 1365, 1383 [7 ELR 20637] (2d Cir. 1977), cert. denied, 434 U.S. 1064 (1978). The EIS "need not be exhaustive to the point of discussing all possible details bearing on the proposed action." County of Suffolk, 562 F.2d 1375. In Strycker's Bay Nighborhood Council v. Karlen, 444 U.S. 223, 227-228 [10 ELR 20079] (1980), the Supreme Court recently noted:

[O]nce an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot "interject itself within the area of discretion of the executive as to the choice of the action to be taken." Kleppe v. Sierra Club, 427 U.S. 390, 410, n.21 (1976).

With this in mind, we turn to the EIS itself. A draft EIS (DEIS) was prepared and circulated in June 1973. The final EIS (FEIS) was approved and adopted in February 1974. Plaintiffs' principal complaint with the EIS is that it is insensitive to the effects the project will have on agricultural lands across which the highway will pass.¹ The affidavits submitted by plaintiffs with their application for interim injunctive relief suggest that the EIS underestimates the effects of the loss of the individual plaintiffs' lands to be condemned and the diminished use of their lands which will be severed by the project. These affidavits suggest that the project will significantly damage flexibility of management of the individual plaintiffs' farms and perhaps result in the discontinuation of their farming operations. Additionally, the affidavits refer to a risk of severe erosion should be project go through.

In a brief review of the DEIS and the FEIS, we find that the planners considered the issue of the project's impact on agricultural lands. The authors of the DEIS stated at page 3:

The location of I 93 was developed in cooperation with local and regional planning agencies, and will aid in the realization of their goals. The route was chosen to avoid to every extent practical and possible the open lands suitable for agricultural purposes.

The FEIS contains an extensive discussion of a variety of alternatives to the proposed project. One such alternatives was to abandon the I-93 plan and improve the present two lane highway adjacent to the proposed route. Although it was found that less agricultural land and natural resources would be required under this plan, this alternative was dropped for a variety of reasons documented in the FEIS. In discussing the effect of the right of way acquisition, the authors of the FEIS noted at page 22:

Construction of I 93 will require the acquisition of approximately 329 acres for right of way. The greater portion of this, 248 acres, is wooded, while 81 acres are pasture and tillage land. This agricultural acreage is mostly in the vicinity of the St. Johnsbury-Waterford Town Line; it will be acquired from several owners, and analysis of ownership patterns indicates no farm operations will be forced out of business by the take.

Later in the FEIS, at page 49, the authors concluded that "[t]he project has been located to minimize the need for right of way acquisition in agricultural and residential areas." Additionally, the FEIS contains a through discussion of the measures to be taken to prevent soil erosion.

Upon our preliminary review of the EIS and given the limited role of this court in reviewing this document, we conclude that these assessments of the agricultural impact of the project are likely to meet the requirements of NEPA.

b. Need for a Supplemental EIS.

FHWA regulations provide that supplements to a DEIS or FEIS:

will be necessary when substantial changes are made in the proposed action that will introduce a new or changed environmental effect of significance to the quality of the human environment or significant new information becomes available concerning the action's environmental aspects.

23 C.F.R. § 771.15 (1980). No substantial changes in the highway project have occurred since the preparation of the EIS. Plaintiffs argue, however, that significant new information has become available requiring defendants to supplement the EIS before they may proceed with construction.²

As evidence of the significant new information available, plaintiffs point to a memorandum published by the Council on Environmental Quality (CEQ) alerting federal agencies to the need and opportunities to analyze agricultural land impacts more effectively in the NEPA project planning process. See 45 Fed. Reg. 59,189 (1980). Plaintiffs also refer us to a 32 page position paper on the I-93 project prepared by the Vermont Agency of Transportation in May 1980 at Governor Snelling's request. The paper contains an extensive discussion of the project's effect on agriculture. Additionally, plaintiffs suggest that the advent of the energy crisis requires the preparation of a supplemental EIS.

The CEQ memorandum, of course, is not "significant new information concerning the action's environmental aspects." Although CEQ advocates an increased sensitivity to agricultural land impacts, this position does not shed new light on or change the particular environmental impact of the present project.See Inman Park Restoration v. UMTA, 414 F. Supp. 99, 118 [7 ELR 20466] (N.D. Ga. 1976), aff'd 576 F.2d 573 (5th Cir. 1978). Moreover, it is hard to see how the position paper referred to by plaintiffs can constitute a basis for a supplemental EIS where its drafters considered the agricultural impact extensively and reached the conclusions that "the present design . . . has reduced the effect on the agricultural potential . . . to the fullest extent possible" and that construction of the I-93 project as presently proposed "is the only practicable course of action." Waterford Interstate 93 Position Paper, Vermont Agency of Transportation, pp. 31-32. Finally, we note that the energy crisis is not a new phenomena occurring since the preparation and adoption of the EIS. The energy crisis was quite severe at the time the DEIS was prepared and circulated and was specifically referred to in that document. Accordingly, we conclude that plaintiffs are not likely to establish the need for a supplemental EIS.

c. Compliance with FHWA public hearing requirements

A state highway department which submits plans for a federal-aid highway project must hold public hearings to consider its economic and social effects, its environmental impact and its consistency with the objectives of any local urban planning. 23 U.S.C. § 128. FHWA regulations promulgated pursuant to this requirement establish the notice and hearing procedures which must [11 ELR 20081] be complied with. 23 C.F.R. § 790.5 et seq. (1980). If location or design approval is not requested within three years after the date of the hearing, a new hearing may be required. 23 C.F.R. § 790.5 (1980).

A section 128 hearing was held on the I-93 project in 1966. Plaintiffs allege that the procedural requirements of the FHWA regulations were not complied with and that a second hearing was not held as required by these regulations. Where plaintiffs have waited until this late date to challenge the 1966 hearing and to assert a failure to hold a subsequent hearing and where defendants have since gone to considerable length and expense in designing the highway and planning and acquiring land for the project, an examination of the merits of plaintiffs' allegations is unnecessary. We conclude that plaintiffs are likely to be barred from establishing this position by the doctrine of laches. See Centerview/Glen Avalon Homeowners Ass'n v. Brinegar, 367 F. Supp. 633 (C.D. Cal. 1973).

2. Plaintiffs have not established sufficiently serious questions on the merits or a balance of hardships tipping in their favor.

We are well aware of the fundamental importance Congress has attached to compliance with the procedural requirements of NEPA. "Where evidence presented to the preparing agency is ignored or otherwise inadequately dealt with, serious questions may arise about the adequacy of the authors efforts to compile a complete statement." County of Suffolk v. Secretary of the Interior, 562 F.2d at 1383. We have already concluded, however, that plaintiffs' chances of successfully challenging the adequacy of the EIS are limited. We now conclude that plaintiffs have not esablished sufficiently serious questions on the merits or demonstrated a balance of hardships tipping in their favor to warrant interim injunctive relief.

As noted earlier, the proposed project is an 11 mile stretch of highway connecting I-93 with I-91 in the northeast corner of Vermont. This stretch apparently completes the interstate highway construction scheduled for the state. The individual plaintiffs have had the opportunity to participate in the 1966 public hearings. Additionally, these plaintiffs have worked with Vermont Agency of Transportation personnel in securing culverts and a team pass to minimize the effects of drainage onto the severance of their properties. Plaintiff VNRC received the DEIS dealing with this project but chose not to make any comments about the proposed construction. It does not appear that plaintiffs have not had an opportunity for input into the project.

In addressing questions as to defendants' compliance with NEPA and Federal-Aid Highway Act requirements, it is well to remember that the construction of highway necessarily entails some dislocation and often results in the diminution and occasional elimination of farming operations which lie in the path of the highway route. Many of the issues raised by plaintiffs in their affidavits, pleadings and motion papers are more properly left for consideration in the state condemnation proceedings. See VT. STAT. ANN. tit. 19, § 221 et seq. In particular, a hearing must be held pursuant to section 225 to determine the necessity of the highway project. Consideration is to be given to such factors as the least inconvenience and expense to the property owner, the adequacy of other locations and a variety of agricultural factors. On June 6, 1979, a section 225 hearing was held on the I-93 project at which the individual plaintiffs appeared. A finding of reasonable necessity was made. See State Transportation Board v. Whittemore, Wash. Super. Ct. Docket No. 556-79-Cac (Caledonia Super. Ct., October 4, 1979). If the individual plaintiffs are concerned that the loss of their lands to be condemned and the diminished use of their lands to be severed by the project has been underestimated, this matter may properly be raised at a hearing to determine the amount of compensation for the taking. VT. STAT. ANN. tit. 19, § 229.

The hardships encountered by the individual plaintiffs, then, are not such that they cannot be adequately compensated for pursuant to the state condemnation proceedings.³ Defendants, on the other hand, have stated that the effect of enjoining construction on I-93 will delay completion of the project by one year. Based on current construction estimates and the impact of inflation at its present rate, defendants estimate that the cost of any delay in construction on the project will be $10,000 per day. While we may question the accuracy of these projections, it is undisputed that a delay will increase construction costs. Such a delay, of course, will have a detrimental effect on the public's stake in the highway project. Furthermore, the northeast corner of Vermont is one of the more depressed areas of the state. It is to be expected that construction of the highway will have a beneficial effect upon the region's economy. Given these considerations, we cannot conclude that the balance of hardships tips in plaintiffs' favor.

For the above reasons, it is hereby ORDERED that plaintiffs' application for a temporary restraining order is denied.

1. Plaintiffs also contend that the EIS inadequately addreses the relationship of today's energy crisis to the need for the highway. At page 1 of the DEIS, the authors admit that the traffic projections for the proposed highway section predate the "energy crisis" of 1973. They also predict at the same place that a long term gasoline shortage would have a "net effect on interstate travel . . . proportional to the reduction in gasoline supply." Although this prediction tends to diminish the projected need for the highway, with respect to the relationship of the energy crisis to the highway project, it appears that the planning agency "has considered the environmental consequences," Strycker's Bay, 444 U.S. at 227.

2. Plaintiffs also argue that defendants have a duty to supplement the EIS to correct the misinformed decision made pursuant to the EIS. As we have already concluded that the EIS assessments of the agricultural impact of the project are likely to meet the requirements of NEPA, plaintiffs are not likely to successfully establish that defendants have a duty to correct the EIS.

3. In deciding plaintiffs' application for a temporary restraining order we do not reach the question of irreparable injury. We note, however, "that irreparable injury means injury for which a monetary award cannot be adequate compensation and that where money damages is adequate compensation a preliminary injunction [TRO] will not issue." Jackson Dairy, Inc. 596 F.2d at 72. All of the considerations set forth in the affidavits filed by the individual plaintiffs in this case can be raised at the compensation hearing provided by VT. STAT. ANN. tit. 19, § 229. If dissatisfied by the amount of damage awarded, the aggrieved landowners may appeal to the Supreior Court for the county where the land is located. There, if they so elect, they are entitled to a jury trial. Id. § 231. At least as to the individual plaintiffs it would appear that they could not establish irreparable injury in this action in any event.