Civic Improvement Committee v. Volpe

Civil No. C-C-72-31 (W.D.N.C. March 24, 1972)

In a suit to enjoin various highway undertakings which originated in a city-wide highway master plan developed with federal aid, the court holds that a NEPA environmental impact statement is required only for those undertakings which individually receive federal aid and which have not yet reached construction. A highway widening project which is part of the master plan but which otherwise has never received federal assistance is not sufficiently "federal" to warrant the application of NEPA. A segment of interstate highway already under construction is not enjoined but the court retains jurisdiction to assure that, to the extent possible, the construction is consistent with social and environmental values.

Counsel for Plaintiff
Hugh G. Casey
808 Law Building
Charlotte, North Carolina

Counsel for Defendant
David Sentelle Asst. U.S. Attorney
U.S. Courthouse
Charlotte, North Carolina

[2 ELR 20170]

McMillan, J.

This action by "CIVIC IMPROVEMENT COMMITTEE" and others seeks injunctive and other relief against city, state and federal authorities, based upon alleged failure to comply with the National Environmental Protection [sic] Act of 1969, 42 U.S.C., §§ 4321-4335, which became effective January 1, 1970.

The plaintiffs allege and have offered evidence to show that federal, state and local authorities collaborated in preparation of a master plan for street location and improvement in the Charlotte area, referred to as the Wilbur Smith Plan, which has been in effect with some modifications since 1960.

The Smith Plan was prepared with close cooperation of federal and local authorities; it projects in great detail what streets and roads in the Charlotte community will be opened, widened or otherwise improved; it projects traffic volumes as far ahead as 1980 and the numbers of lanes of traffic and other facilities which will be required to handle that traffic. No federal highway aid since 1960 has been spent on any street or highway except those on the original Smith Plan or those added by modification. Interstate highways (I-85 and I-77) are included; Sharon Lane running east and west between Providence Road and Sharon Road; Wendover Road and connecting streets running generally east and west between Seventh Street on the northeast and Park Road to the south are included; Sugar Creek Road running north from North Tryon Street to I-85 is included; I-77 including the segment yet unfinished running north from Oaklawn Avenue a little less than two miles to I-85 and another nearly two miles beyond I-85 is included.

The segments of Sharon Lane, Wendover Road and Sugar Creek Road in question are listed as "major streets." Traffic on Sharon Lane, for example, had reached more than 16,000 cars a day by 1970.

The National Environmental Protection [sic] Act requires that "major federal actions significantly affecting the quality of the human environment" should not be taken until a study by appropriate agencies has been made, revealing the impact of the action on water, air and other environmental factors and the effect upon human beings.

Although the Act was not effective until January 1, 1970, it has been held by several courts to apply to projects already [2 ELR 20171] approved and planned and located before that time; for example, in Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 749 (W.D. Ark., 1971), the court said that

"The degree of the completion of the work should not inhibit the objective and thorough evaluation of the environmental impact of the project."

Major projects have been interrupted for lack of compliance with the law, even though a great deal of work had already been accomplished. Environmental Defense Fund, Inc. v. T.V.A. (E.D. Tenn., January, 1972); Named Individual Members of the San Antonio Conservation Society, et al., v. Texas Highway Department, et al., 446 F.2d 1013 (5th Cir., 1971). Applicable federal regulations also require that

"Where it is not practicable to reassess the basic course of action, it is still important that further incremental major actions be shaped so as to minimize adverse environmental consequences."

Counsel on Environmental Quality Guidelines, No. 11, Federal Register, Volume 36, No. 79, April 23, 1971.

JURISDICTION

As to the segment of I-77; as to the "Wendover Route" and as to the Sugar Creek Road, the evidence sufficiently revealed substantial federal activity and there appears to be no question as to the authority of the court over the relief requested in those areas.

Sharon Lane, however, is a rather different situation. Sharon Lane is part of a segment of highways, including Sharon Amity Road, which extend from the northeast part of Charlotte to the south and west and presently terminate at Sharon Road. Sharon Lane before the Smith Plan came into being was marked by the city and state for improvement; there has been no federal money spent on that segment since 1960 when the Smith Plan was adopted; the proposed widening of Sharon Lane has not been submitted to nor cleared in any manner with federal authorities; it is a city project financed solely by city money.

Plaintiffs contend that the Sharon Lane improvement is a segment of a larger loop which, somewhat like a loosely hanging chain covers the east, south and southwest parts of the city from Sharon Amity Road in the northeast to Wilkinson Boulevard in the west; that it is part of a loop or perimeter road; that it connects with interstate arteries and that although the widening of Sharon Lane may not be requiring federal money, it is still part of a long-range group of federal actions; it serves federal traffic arteries by connecting with them; and it ought to be subject to the latter-day environmental impact requirements. The argument is an appealing one, especially when the threat against which plaintiffs inveigh is the destruction of numerous beautiful oak trees on a very expensive and very exclusive street.

The case for destruction of the oaks is poorly made upon the record available, and it may be doubtful that such destruction is necessary to devise an appropriate increase in the traffic capacity of Sharon Lane.

A temporary restraining order pending further hearing was entered in fact on March 21, 1972, because some of the oaks were then being chopped.

The court accepts the plaintiffs' theory that "the effect of many federal decisions about a project or complex of projects can be individually limited but cumulatively considerable" and that an environmental statement should be required if it is "reasonable to anticipate a cumulatively significant impact on the environment from the federal action."

This theory, in fact, is part of the court's reason for believing that the Wendover problem is subject to the requirements of the Act.

However, the theory simply does not appear to apply to Sharon Lane. Sharon Lane is neither financed nor controlled by federal actions. On the testimony in this case, it appears to be essentially a local action; its widening with city funds only is not a device or subterfuge to evade environmental considerations but appears to be a natural development whose urgency has been somewhat aggravated by construction of South Park Shopping Center nearby. Therefore, after hearing lengthy testimony on the subject, the court concludes that while accepting the theory of cumulative results of federal actions, Sharon Lane simply does not fit the theory; its widening is not sufficiently federal to invoke the Environmental Protection [sic] Act nor to require the environmental impact statement.

THE WENDOVER ROUTE

The Wendover Route is part of a project receiving substantial federal aid in the planning. It is a definite part of a long loop extending from Independence Boulevard to Park Road to I-85 on the west. Many millions of dollars have been allocated to this project. Even without benefit of the "cumulative impact" theory it appears to be well within the description of a "major federal action" which requires environmental impact studies before construction or planning is completed.

SUGAR CREEK ROAD

The Sugar Creek Road improvement is a major federal action. However, it is so near complete that there is no practical way to bring it under the requirements of the law except in a type of salvage operation which does not include issuance of temporary restraining orders or preliminary injunctions. No specific findings are made about Sugar Creek Road, and no action is presently required by this order.

INTERSTATE 77

Plaintiffs seek an injunction (pending the preparation of an environmental impact statement) against further building of Interstate Highway 77 for a distance of a little less than four miles north from Oaklawn Avenue to a point nearly two miles beyond I-85.

This is, of course, a major federal project involving many millions of dollars. Construction of some bridges has been started and clearing and grading of the right-of-way has begun.

This section of I-77 runs generally through an exclusively Negro section of Charlotte. There are four lanes with interchanges at I-85 and LaSalle Street and an overpass at Oaklawn Avenue. It runs in part along the bed of Irwin Creek and Kennedy Creek. Two million cubic yards of earth are to be moved. The evidence briefly reveals that this segment of highway touches and damages school grounds, parks, homes, trees and businesses. It runs, for example, within ten feet or so of some of the buildings at Lincoln Heights School and consumes part of the athletic field at J. T. Williams Junior High. The highway is designed for as many as 50,000 cars a day. Its completion date is some time in 1975.

Construction was temporarily halted on March 21, 1972, pursuant to order of the court.

Plaintiffs want construction further suspended until an environmental impact statement is filed and their specific demands are met.

Several cases have held that construction of such facilities might be enjoined pending development of environmental impact statements.

However, the location of the road has been established and the construction contract has been let, and the beginnings of earth moving are taking place. Unless super highways are to be outlawed in Charlotte, it is unlikely that the route or the elevation of this road with reference to the surrounding land will be changed by environmental studies.

It would appear that environmental improvements, if any, must come in the form of additions to or peripheral modifications of the basic plan.

The court would like to see construction proceed but with assurances that a concentrated effort will be made to implement the National Environmental Protection [sic] Act as to this facility.What is presently needed is a temporary order which will allow work to resume immediately and give time for the development of a permanent order which will encourage the fullest practicable implementation of the policies of the Act. Such an order is included herein.

[2 ELR 20172]

ORDER

As to Sharon Lane, the temporary restraining order entered on March 21, 1972, will be continued in effect until April 2, 1972, at which time it will be dissolved. The reason for continuing it in effect is to allow plaintiffs an opportunity, if they so desire, to present a petition to a Judge of the Fourth Circuit Court of Appeals asking for a further stay of the action of this court.

II.

As to the Wendover-Runnymeade highway, the court is of the opinion that under the law an environmental impact statement is required for that project covering among other parts of the route the area from Central Avenue to Independence Boulevard to Churchill, Wendover, Runnymeade and other points on which street construction may take place. No construction not already under way should be started on that route until the environmental impact statement has been filed.

III.

No order is presently made as to Sugar Creek Road from North Tryon Street to I-85.

IV.

As to I-77:

(a) The previous restraining order is modified and construction may resume pending further order of court, provided that, unless required by construction in progress, no further trees should be cut outside the "construction limits" as shown on the plans, Plaintiffs' Exhibit #10.

(b) On April 7, 1972, at 11:00 a.m., the parties are requested to report to the court their recommendations as to how the segments of I-77 in question can be completed with as little interference with the patterns of life and society, and the total human environment, that have been established in the neighborhood through which the project is being constructed. All parties are requested to use their best efforts to comply with this objective. The defendants are encouraged to make use of their experts from the natural and social sciences to carry out this objective. The parties are particularly requested to explore, prior to the hearing, all measures which can be undertaken on an expedited basis to achieve the objectives mentioned, consistent with the terms of the present construction contract, including without limitation the following plaintiffs' suggestions:

1) Landscaping along the edges of the project and in the dual lane median, including trees and hedges that hopefully will act as a natural sound barrier;

2) Making the perimeter chain link fence higher and solid, again hopefully to act as a sound barrier;

3) Erecting pedestrain walkways broad enough and without steps so that baby carriages, wheelchairs and bicycles may be used thereon. The number of these walkways should be sufficient to conform, as far as practicable, to the patterns of pedestrain traffic as it existed before the project began, and the needs of the human environment. Two streets (Oaklawn Avenue and LaSalle Street) are presently scheduled to cross the construction project, and on them it would appear that there should be sidewalks sufficient for the purposes mentioned for the proposed pedestrian walkways.

(c) The continuation of the project should be done in such a manner that it will not prevent the realization of the above possible objectives.

(d) After receiving the comments of the parties the court will make further orders with regard to the environmental impact statement.

(e) If April 7, 1972, is too early to complete preliminary study of the matters mentioned above, counsel will be expected to request more time. This 24th day of March, 1972.