Grazing Fields Farm v. Goldschmidt

No. 79-1786-MA (D. Mass. October 24, 1980)

On remand from the First Circuit Court of Appeals, the district court finds that an alternative route for a highway was not adequately discussed in the environmental impact statement (EIS) for the project. The court had previously held, 10 ELR 20293, that on the basis of the administrative record as a whole, the Federal Highway Administration (FHWA) had adequately dealt with plaintiffs' proposed "upland alternative." In reversing, the First Circuit held, 10 ELR 20533, that under the National Environmental Policy Act (NEPA) an agency's consideration of alternatives must be adequately discussed within the EIS as well as being demonstrated in the administrative record. The district court now finds that the FHWA failed to fulfill its procedural duty under NEPA by providing sufficient discussion in the EIS of the upland alternative. In granting plaintiffs' motions for summary judgment and a preliminary injunction, the court directs that a supplemental EIS be prepared to evaluate the upland alternative and to address with specificity the impact of the chosen route on plaintiff's property.

Counsel for Plaintiffs
Gregor I. McGregor, Michael A. Leon
27 School St., Suite 603, Boston MA 02108
(617) 227-7289

Counsel for Defendants
Marianne B. Bowler, Ass't U.S. Attorney
1107 John W. McCormack P.O. & Cthse., Boston MA 02109
(617) 223-3181

[11 ELR 20172]

Mazzone, J.:

Memorandum and Order

This is our second look at the final Environmental Impact Statement (EIS) prepared on a proposed extension of Massachusetts Route 25 from its present terminus in Wareham to the Bourne Bridge. The plaintiffs, owners of land through which the proposed road would cut, contend that the EIS contained an insufficient discussion of the route the plaintiffs proposed as an alternative to the route chosen by the defendant, Federal Highway Administration (FHWA); and that the EIS was therefore inadequate under the National Environmental Protection Act (NEPA), 42 U.S.C. § 4332(2)(C)(iii), and must be supplemented. A detailed statement of the factual setting of the case may be found in our previous Memorandum and Order dated January 18, 1980 [10 ELR 20293], and in the opinion of the First Circuit Court of Appeals in Grazing Fields Farm v. Goldschmidt, Slip Opinion No. 80-1076 [10 ELR 20533] (June 25, 1980).

In our previous Memorandum and Order, this Court, on the basis of the administrative record as a whole, held that the defendants were entitled to summary judgment because the FHWA had dealt adequately with the plaintiffs' proposed "upland alternative" to the chosen route. We considered various internal FHWA documents, communications with he plaintiffs, and hearing conducted pursuant to state law. We concluded that the supplemental EIS sought by the plaintiffs would be superfluous.

The Court of Appeals reversed and remanded the action to us for further proceedings. Grazing Fields Farm v. Goldschmidt (slip op.), supra. The Court held that under NEPA, an agency's consideration of alternatives must be discussed adequately within the EIS, as well as being demonstrated in the administrative record. The agency must consider alternatives both internally and in the EIS to pass muster under NEPA:

Section 4332(2)(C) does not merely mandate that a federal agency make an informed decision involving environmental concerns, but orders the agency to prepare a detailed statement discussing the environmental issues. We find no indication in the statute that Congress contemplated that studies or memoranda contained in the administrative record, but not incorporated in any way into an EIS, can bring into compliance with NEPA an EIS that by itself is inadequate.

Id. at 7-8. Therefore, even when, as here, parties with a direct interest in the affected parcel of land have been consulted, the EIS itself must fully discuss alternatives to the proposed agency action in order to provide disclosure to other departments of government and to the public at large, so that they may conveniently monitor and criticize the agency's action. Id. at 9-10.

The Court of Appeals held that review of an agency decision such as the FHWA's decision here requires two steps. The first [11 ELR 20173] step is the extremely limited substantive review under the Administrative Procedure Act (APA), 5 U.S.C. § 706, to determine if the agency's decision was arbitrary and capricious. Good faith consideration of environmental consequence by the agency satisfies the APA; the court cannot substitute its judgment for that of the agency.

Upon substantive examination of the entire administrative record, we conclude that the FHWA satisfied the first of NEPA's requirements, that is, we find "the agency has given good faith consideration to the environmental consequences of its actions," and we do "not pass judgment on the balance struck by the agency among competing concerns." Grazing Fields Farm, supra, slip op. at 6, citing Strycker's Bay Neighborhood Council v. Karlen, 48 U.S.L.W. 3433, 3434 [10 ELR 20079] (January 8, 1980) (per curiam).

The second step is to address the agency's compliance with the procedures required by NEPA. The only procedure at issue is the preparation and circulation of the EIS. The administrative record can only be used to determine whether a particular alternative Merits extensive discussion in the EIS. Id. at 10-11. The Court of Appeals referred to its per curiam decision in Massachusetts v. Andrus, 594 F.2d 872, 884-86 [9 ELR 20162] (1st Cir. 1979) (Georges Bank) to give an example of a case where a "pedestrian" discussion in a Supplemental EIS of the alternative of designating certain portions of the Outer Continental Shelf (OCS) as marine sanctuaries was sufficient in light of information in the administrative record that the area had been withdrawn from consideration as a marine sanctuary by the National Oceanic and Atmospheric Administration. In light of the administrative record, the sanctuary alternative for Georges Bank was "largely hypothetical." Grazing Fields Farm, supra, slip op. at 12 n.4.

The Court stated that "fanciful or hypothetical" alternatives need not be included at all in an EIS, citing Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558 [8 ELR 20288] (1978). The required degree of discussion of an alternative is measured by a "rule of reason." Massachusetts v. Andrus, 594 F.2d at 884. For instance, no discussion of exact projected pipeline routes or the effect of local regulation on possible pipelines was required in an EIS for oil and gas exploration on the Atlantic OCS, since the location of pipelines would depend on where oil was found, and "endless hypothesizing as to remote possibilities" is not necessary. County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1379 [7 ELR 20637] (2d Cir. 1977).

Our examination of the record persuades us that the upland alternative was not hypothetical, speculative or fanciful and merited more discussion than it received in the EIS.¹ Therefore, we conclude that the FHWA failed to comply with the second aspect of the test because it failed to fulfill the "essentially procedural" duties placed upon it by NEPA. Vermont Yankee, supra, 435 U.S. at 558. The EIS did not include "a detailed statement" discussing "alternatives to the proposed action." 42 U.S.C. § 4332(2)(C). The 481-page document referred to the upland alternative only twice, and neither of those references was in the body of the text. The first reference, contained in Appendix J, "Comments Received on Draft Environmental Impact Statement," responded to the plaintiffs' charge that the draft EIS did not give adequate consideration to alternatives as follows:

Federal and State officials reviewed an alternative alignment to proposed Route 25/28 with representatives of the Buzzards Bay water District and Hope G. Ingersoll on March 31, 1976. This alternative was proposed because of its lesser impact to Grazing Fields Farm.However, due to its impact on nearby well fields, existing power lines, and extra takings required for right-of-way, State and Federal officials rejected this alignment. By emphasizing the importance of the consensus expressed by the public at the last hearing in 1974, State and Federal officials made clear their position to follow through with the alignment shown in the Draft Environmental Impact Statement.

Final EIS, Appendix J, p. 369. This brief paragraph does not provide notice of the competing consideration, nor does it demonstrate the FHWA's reasoning to other government departments and the public at large. It states only that the alternative was considered and rejected; it does not state the nature of the probable harm to Grazing Fields Farm, or the nature and extent of the proposed alternative route's impact on well fields and power lines. Its reliance on public consensus favoring the chosen route is misplaced. If only one owner's land is adversely affected, others are likely to be satisfied. The existence of a consensus sheds little light on the FHWA's reasons for rejecting the upland alternative.

The second reference appears in Appendix L, "Grazing Fields Farm," a seven-page description of the farm's "natural history, history and region." Final EIS, p. 461. The description was prepared by the son of the owner of the farm. While Appendix L describes the farm itself in great detail, it does not discuss the location or the feasibility of the proposed alternative route, its advantages and disadvantages, its cost, or the nature of the risks posed by the chosen route to the farm and nearby wells. Taken together, the two references fail to disclose to the public which factors were relevant to the FHWA's rejection of the upland alternative and which were considered determinative by the FHWA.

We are not the first to conclude that the EIS failed to discuss the upland alternative adequately. The Massachusetts Secretary of Environmental Affairs found the final EIS was deficient in this respect and required the Massachusets Department of Public Works (DPW) to prepare an Addendum on that topic. Although the DPW's Addendum satisfied state law, it was not incorporated into the EIS. A supplemental study which is not incorporated into the EIS cannot remedy its deficiencies. The Environmental Protection Agency (EPA) continues to be dissatisfied with the EIS.² The DPW study "'affords [to the public] no basis for a comparison of the problems involved with the proposed project and the difficulties involved in the alternative,'" Silva v. Lynn, 482 F.2d 1282, 1285 [3 ELR 20698] (1st Cir. 1973), quoting Monroe County Conservation Council v. Volpe, 472 F.2d 693, 697 [3 ELR 20006] (2d Cir. 1972). It thus cannot serve the disclosure function of an EIS.

We therefore conclude that a supplemental EIS must be prepared, see 23 C.F.R. § 771.51, to evaluate the upland alternative and to address with specificity the impact of the chosen route on Grazing Fields Farm.

In accordance with the above:

(1) Plaintiffs' Motion for Summary Judgment as to the failure of the EIS to adequately discuss or analyze the "upland alternative" is allowed.

(2) Plaintiffs' Motion for Preliminary Injunction is allowed.

SO ORDERED.

1. The state defendants have argued that the upland alignment is not even an "alternative" subject to the requirements of NEPA § 4332(c)(C)(iii), but merely a "design variation." We are not convinced by this argument. The Guidelines of the Council on Environmental Quality identify the alternatives to be discussed in an EIS as:

all reasonable alternative actions, particularly those that might enhance environmental quality or avoid some or all of the adverse environmental effects.

40 C.F.R. § 1500.8(a)(4). The upland route at issue was considered by the FHWA precisely because of its possible avoidance of adverse environmental effects. A route change cannot be equated with architectural or structural design changes such as variations in depth of catch basins, road surface material, etc. In Brooks v. Coleman, 518 F.2d 17, 19 [5 ELR 20444] (9th Cir. 1975), a "German" viaduct design for a highway was held to be "simply a variant of the viaduct-type alternatives that were adequately described in the final EIS." The instant case is distinguishable; the upland route cannot be considered a simple variant of the project as proposed. It is an alternative with its own distinct environmental consequences.

2. Although the Court of Appeals did not rule on the adequacy of the EIS itself, it did note that the EPA's opinion was that "the EIS's limited discussion of the upland alternative rendered it deficient under NEPA." Grazing Fields Farm, supra, slip op. at 4 n.1.