Pizitz, Inc. v. Volpe

Civil Action No. 3595-N (M.D. Ala. May 1, 1972)

Plaintiff business proprietors seek to enjoin further construction of parkway overpasses for noncompliance with NEPA. The court characterizes the case as "spurious," since plaintiffs' concerns are not environmental but relate to a threatened loss of business. NEPA creates procedural remedies, not substantive rights, and the court may not substitute its judgment on the merits of the undertaking for that of defendant highway officials. Held, where the environmental impact statement fully evaluated environmental effects and gave attention to problems and objections, defendants had complied substantially with the procedural requirements of the Act, and are entitled to summary judgment. Costs to plaintiffs.

Counsel for Plaintiffs
Schrader & Schwenn
Suite 400
State National Bank Building
Huntsville, Alabama 35804

Counsel for Federal Defendants
Ira DeMent, U.S. Attorney
Kenneth E. Vines, Assistant U.S. Attorney
P.O. Box 197
Montgomery, Alabama 36104

Counsel for State Defendants
Lucian L. Smith, Jr.
Alabama State Highway Department
11 South Union Street
Montgomery, Alabama 36104

[2 ELR 20378]

ORDER

This is a spurious National Environmental Policy Act case filed by a class of plaintiffs who reside the Huntsville, Alabama, and who own and operate business establishments along Huntsville's Memorial Parkway. Plaintiffs seek a declaratory judgment that their rights have been violated by defendants' violation of the National Environmental Policy Act of 1969, 42 U.S.C.A. § 4321, et seq. Plaintiffs also seek an injunction against defendants' further construction on Project F-286 — Huntsville's Memorial Parkway. Defendant Volpe is the Secretary of the United States Department of Transportation and as such has responsibility for the administration of various federal-aid highway programs, including the program plaintiffs seek to enjoin. Defendant Pruett, at the time this suit was filed, was the Director of the Highway Department of the State of Alabama. The director has the responsibility to designate road construction projects and, where appropriate, to enter into contracts for federal-aid programs for such projects.

Each defendant has filed a motion to dismiss, alleging that the complaint fails to state a claim upon which relief can be granted. This Court will consider and treat these motions to dismiss as motions for summary judgment under Rule 56, Federal Rules of Civil Procedure.

Plaintiffs allege that this Court has jurisdiction over the subject matter in this action pursuant to 28 U.S.C.A. § 1343 and 42 U.S.C.A. § 1983. Defendant Volpe strenuously argues that the action cannot be maintained by these plaintiffs. This argument is based upon the theory that no private right of action is created by the National Environmental Policy Act of 1969. The only case suggesting this theory is Bucklein v. Volpe, 2 ERC 1082 (N.D. Cal. 1970), which stated:

"Moreover, it is highly doubtful that the Environmental Policy Act can serve as the basis for a cause of action. Aside from establishing the Council, the Act is simply a declaration of congressional policy; as such it would seem not to create any rights or impose any duties of which a court can take cognizance. There is only the general command to federal officials to use all practicable means to enhance the environment. It is unlikely that such a generality could serve or was intended to serve as a source of court-enforcible duties."

More persuasive authority is set forth in a series of cases in which courts have entertained actions based on 42 U.S.C.A. § 4321, et seq. E.g., Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 728 (E.D. Ark. 1971); Sierra Club v. Hardin, 325 F. Supp. 99 (D. Alaska 1971). It should be noted, however, that these courts have stated clearly that the requirements imposed upon the federal government by the National Environmental Policy Act provide only procedural remedies as opposed to substantive rights and that the function of the court in such cases is limited to ensuring that the procedural requirements of the Act are satisfied. North Carolina Conservation Council v. Froehlke, 40 U.S.L. Week 2590 (M.D.N.C. 1972). This Court proceeds, therefore, keeping in mind that it cannot substitute its judgment for that of defendants on whether the project should be undertaken, but can only determine whether defendants have complied substantially with the procedural requirements of the National Environmental Policy Act. See Committee for Nuclear Responsibility v. Seaborg, 40 U.S.L. Week 218 (D.C. Cir. 1971). Consequently, it is clear that plaintiffs may maintain the present action seeking to enjoin further construction on the Huntsville, Alabama, Memorial Parkway unless there has been substantial compliance with the procedural requirements of the National Environmental Policy Act.¹

The Court has characterized plaintiffs' case as "spurious" because, as the pleadings reflect, plaintiffs' primary concern in filing and prosecuting this litigation was to avert a threatened loss of business. The environmental aspects of the case were brought in only to maintain the action. Of course, the National Environmental Policy Act was not designed to prevent loss of profits, but was intended only to promote governmental awareness of environmental problems. Nevertheless, plaintiffs have invoked the provisions of this Act seeking to enjoin future construction on the Huntsville Memorial Parkway, and this Court has considered the case accordingly.

As stated previously, the National Environmental Policy Act provides only procedural remedies, not substantive rights. This Court, in reviewing the pleadings, including the briefs and exhibits [2 ELR 20379] thereto, has concluded that plaintiffs, and all others similarly situated, have been afforded their procedural remedies to the fullest extent required by the Act.

In February 1967, a contract was let by the State of Alabama for the construction of an overpass and service roads along the portion of Huntsville's Memorial Parkway located between the Airport Road and Drake Avenue intersections. This construction was completed in 1969. Immediately before the commencement of this portion of the construction project, approximately twenty-five retail businesses were located and operating on premises abutting the parkway between said intersections. Most, if not all, of these businesses suffered substantially in gross and net incomes due to lack of ingress and egress from the new overpass. The completion of overpasses from Drake Avenue to the North Parkway's intersection with Highway 72 is the project now proposed and the project plaintiffs seek to enjoin. The plaintiffs own or operate businesses along the section where the new overpasses are to be constructed. It appears from the documentary evidence presented by the parties that insofar as the proposed construction is concerned an Environmental Impact Statement was prepared and distributed, as required by law, and was approved by the proper officials. Title 42, Section 4332 (c), United States Code Annotated, requires that where there is doubt whether or not to prepare an Environmental Impact Statement, it should be prepared. In the present case, the necessity for the statement was in doubt because no right-of-way was involved and because the proposed construction was only a continuation of a project already commenced. Nevertheless, in accordance with 42 U.S.C.A. § 4332 (c), a statement was prepared, distributed and approved. Approval of the Final Environmental Impact Statement was obtained from the Federal Highway Administration in August, 1971; design approval was received in September, 1971; the program was approved on October 19, 1971; construction was authorized on November 24, 1971, and the contract was awarded on January 18, 1972.²

The Final Environmental Impact Statement, which was approved in August, 1971, was prepared in consultation with the Federal Highway Administration and was distributed to appropriate agencies of the Administration. The statement evaluated fully the proposed project's potential impact on the environment, both from a positive and a negative standpoint. In its evaluation, the statement covered controversial issues. For example, possible economic losses to businesses located along the project were studied and steps were taken to minimize them during construction. Water pollution problems, land use considerations, and the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity were all considered. The problems and objections that were presented were given due attention. Comments on the Environmental Impact Statement were received from many agencies, both federal and state, including the Environmental Protection Agency. Finally, it was concluded that the project that these plaintiffs seek to enjoin would have no major adverse impact on the environment.

Thus, it affirmatively appears that defendants have afforded plaintiffs and the members of their class their full procedural remedies and, thereby, have complied substantially with the provisions of the National Environmental Policy Act. This Court cannot substitute its judgment for that of the defendants and embark by trial upon an investigation to determine the environmental impact of this project. Since it does affirmatively appear that the procedural rights to which the plaintiffs and the members of their class are entitled have been secured by the defendants and that there are no disputed material facts in this regard, the defendants are entitled to a judgment as a matter of law.

Accordingly, it is the ORDER, JUDGMENT and DECREE of this Court that judgment be and the same is hereby entered for defendants. It is further ORDERED that the costs incurred in this proceeding be and the same are hereby taxed against plaintiffs, for which execution may issue.

1. Defendant Volpe also argues that the Act does not apply because it is not retroactive. This argument, insofar as this particular project is concerned, is without merit. Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. at 743, makes it clear that there is a continuing duty on the part of responsible governmental officials to investigate the environmental impact of a particular project and that, even though the project has already been commenced, as is the case here, there must be a substantial compliance with the provisions of the National Environmental Policy Act before beginning new construction on an old project.

2. Plaintiffs' action was filed February 16, 1972.