Daly v. Volpe

Civil Action No. 9490 (W.D. Wash. March 31, 1972)

A decision to change the location of I-90 in the vicinity of North Bend, Washington, had a rational basis and was not arbitrary and capricious. The provisions of 23 U.S.C. § 138 on preservation of parklands do not apply to a privately-owned waterfowl refuge. Plaintiff property owners prevail on their NEPA claims, since federal courts have jurisdiction over officials of states which receive federal grants-in-aid if federal environmental protection statutes are violated. NEPA requires strict, not substantial, compliance and justifies a delay in construction. An "environmental report" that fails to ask and answer all of the pertinent questions is not acceptable under NEPA, nor is a draft environmental impact statement that is conclusory rather than analytical and fails to discuss effects of the chosen corridor on the area it traverses. An impact statement is unsatisfactory if it fails to list economically measurable costs of construction and the nature of resources lost which cannot be quantified. Perfunctory review of statements by the FHWA does not constitute the deliberation contemplated in the Act. Statements prepared after location selection do not meet the intent of Congress to provide decision-makers with sufficient information to make an environmentally sound decision. Ordered, that a new draft statement be prepared and that a new location hearing be held. For an earlier opinion denying a motion for preliminary injunction, see 1 ELR 20242.)

Counsel for Plaintiffs
Irving M. Clark, Jr.
J. Richard Aramburu
209 College Club Building
Seattle, Washington 98104

Counsel for Federal Defendants
Albert E. Stephan
Assistant U.S. Attorney
United States Courthouse
Seattle, Washington 98104

Counsel for State Defendants
Thomas R. Garlington
Assistant Attorney General
Department of Highways
Fifth Floor, Highways-Licenses Building
Olympia, Washington 98504

[2 ELR 20443]

Beeks, J.

Plaintiffs, individual residents and property owners in or near the proposed corridor of I-90, a federally funded interstate highway through the State of Washington, seek to enjoin its construction. They base their claim on essentially two grounds: First, that selection of the location of this corridor was arbitrary and capricious, and second, that defendants violated the provisions of certain federal statutes.¹

The facts of this case are not essentially in dispute. The state proposes to construct a section of I-90 in the vicinity of North Bend, Washington. The first corridor location hearing was held on April 8, 1957. The issues lay dormant until July 30, 1969, when the location design engineer sent letters to interested parties, requesting comment on corridor A-3, a segment of the proposed highway that would parallel the location of the existing highway, U.S. 10, and also pass through the town of North Bend. A second location hearing was held on December 3, 1969. Meetings with interested groups were held through the summer of 1970. Late in August, 1970, the state made public an "Environmental Report of the Upper Snoqualmie Valley," which did not discuss alternative routes, but did provide a summary of information which bore on choosing a route most favorable to the environment. This "Environmental Report" was distributed at the third corridor location hearing of September 1, 1970. Following this last hearing, the state and federal defendants for the first time advocated construction through corridor E-3, which would completely bypass North Bend to the south.

The "Environmental Report" and an "Advanced Planning Study" were transmitted to the Federal Highway Administration (FHWA) division engineer on September 25, 1970. The state's request for approval of corridor E-3 was submitted November 4, 1970, and its draft environmental impact study was sent to FHWA on November 25, 1970. Corridor E-3 was approved November 30. A second draft environmental statement of January 13, 1971, and a "Final Environmental Statement" of February 8, 1971, were subsequently sent to FHWA. Neither of these environmental reports considered the ecological effects of the highway on Kimball Creek Marsh, a non-publicly owned refuge for waterfowl close to which the proposed highway will pass.

ARTIBTARY AND CAPRICIOUS ACTION

Plaintiffs charge that the state arbitrarily changed the corridor location because of extraneous political pressure on FHWA officials brought by the mayor and/or town council of North Bend.² This contention is rejected. I am satisfied that new evidence and studies led the federal administrators to reevaluate their decision and change the corridor location to one which they believe is better suited to the area.

Plaintiffs further urge that arbitrary and capricious conduct is established by compelling evidence that corridor A-3 is superior to E-3. They claim, among other things, that A-3 would cover more land occupied by existing highways, that E-3 will destroy the last and best residential land in the valley, that the state will be forced to sell the property it has already purchased for A-3 at a loss, and that a change in routes would disrupt the private plans of many individuals who have since 1957 governed their affairs on the assumption that A-3 would be the route. Defendants, on the other hand, argue that A-3 would cut through Si View County Park, that less property would be taken from the tax rolls by E-3, that A-3 would create a barrier for natural growth of the town, and that E-3 passes through a relatively undeveloped area of land.

The court may not, however, weight the evidence de novo, to decide which of several alternatives is to the court most desirable. Only if the administrative decision is so clearly erroneous that it has no rationally supportable basis may the court rule that it is arbitrary and capricious.³ The complexity of variables to be considered by defendants in the location of a major highway route such as this illustrate well the reasons for the rule. Both proposed routes have advantages and disadvantages. Defendants studied both proposals in depth, and came to a decision that is eminently reasonable. The decision approving E-3 was made after a consideration of the relevant factors; it was not clearly erroneous, and therefore it was not arbitrary and capricious.⁴

[2 ELR 20444]

Even so, defendants must follow the procedural requirements outlined by the applicable federal statutes and regulations with respect to highway location.

ENVIRONMENTAL PROTECTION

1. Kimball Creek Marsh

23 U.S.C.A. § 138 (1972 Supp.) provides:

§ 138. Preservation of parklands

It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After the effective date of the Federal-Aid Highway Act of 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wilflife and waterfowl refuge, or historic site resulting from such use.

Plaintiffs contend that, because Kimball Creek Marsh is a wildlife and/or waterfowl refuge, federal defendants erred in failing to make the required findings with respect thereto.This contention is rejected; the marsh is not publicly owned.

2. National Environmental Policy Act (NEPA)

Plaintiffs next contend that defendants failed to follow the required procedures with respect to drafting and filing an environmental impact statement. NEPA, which became law on January 1, 1970, requires that "all agencies of the Federal Government shall —⁵

(C) 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 statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes; . . .

Such "detailed statement" should "be prepared at the earliest practicable point in time" so that the statement can provide "significant inputs to the decision-making process."⁶

Given the purpose of NEPA to insure that actions by federal agencies be taken with due consideration of environmental effects and with a minimum of such adverse effects, it is especially important with regard to federal-aid highway projects that the [environmental impact] statement be prepared early.⁷

NEPA requires compliance "to the fullest extent possible."⁸ Such compliance

Would seem to demand that environmental issues be considered at every important stage in the decision making process concerning a particular action — at every stage where an overall balancing of environmental and nonenvironmental factors is appropriate and where alterations might be made in the proposed action to minimize environmental costs.⁹

The environmental impact statement helps to ensure

that the mandated decision making process has in fact taken place and, most importantly, allows those removed from the initial process to evaluate and balance the factors on their own.¹⁰

The impact statement must be in the form and detail required by NEPA, and then circulated among the agencies described in the statute for comment.¹¹

The state has argued that it is not subject to the provisions of NEPA. This position is rejected in Lathan v. Volpe¹² and Brooks v. Volpe.¹³ It should be noted that the Court of Appeals assumed jurisdiction in both of these cases without specifically discussing the jurisdictional issue. These cases must, however, stand for the implied holding that federal courts have jurisdiction over officials of states which receive federal grants-in-aid if federal environmental protection statutes are violated, and I so hold.¹⁴

In the early stages of this case, the court was much concerned about the enormous additional public expense which would result from enjoining construction until strict compliance with the provisions of NEPA and its implementing regulations had been achieved, and I denied a preliminary injunction because I believed that there had been a substantial compliance therewith. I am now satisfied, however, that the law as it has since evolved mandates strict compliance with NEPA and that the position heretofore taken by me has been rejected. The provisions of NEPA are not highly flexible, but establish a strict standard of procedure.¹⁵ I am [2 ELR 20445] most sympathetic to the state's position, and I regret that compliance with NEPA at this late date will delay construction.

But some delay is inherent whenever the NEPA consideration is conducted . . . . It is far more consistent with the purposes of the Act to delay operation at a stage where real environmental protection may come about than at a stage where corrective action may be so costly as to be impossible.¹⁶

It is true that the details of the state's environmental impact statement now required by regulation were not clearly outlined until after the state had drafted its statement.¹⁷ However, the three documents which the state filed with FHWA prior to location approval did not meet the statutory and regulatory requirements existing at the time of the state's request.¹⁸ Said documents are the state's "Environmental Report," "Advanced Planning Study," and an "Environmental Statement."

a. The "Environmental Report" and "Advanced Planning Study"

Neither the "Environmental Report" nor the "Advanced Planning Study" complies with NEPA, although the state should be commended for the polished and professional quality of both reports. The court's objection is not that they were poorly done, but that they fail to ask and answer all of the pertinent questions.¹⁹ The two reports, singly and in combination, fail to adequately analyze the five subjects identified by NEPA. The discussion of the environmental impact of the proposed location is not acceptable; it inadequately discusses the effects of corridor E-3 on the surrounding environment, particularly on Kimball Creek Marsh. Adverse environmental effects should be listed and discussed in a single section of the statement, and not scattered throughout the report. The court believes that the alternatives to the proposed corridor are adequately discussed in the "Advanced Planning Study," which may be incorporated by reference in the new environmental impact study. Neither report sufficiently discusses the relationship between local short-term uses of man's environment and long-term productivity. Finally, there is virtually no discussion of irreversible and irretrievable commitments of resources involved in locating the highway in corridor E-3.

b. The First Draft Environmental Impact Statement

The state's first draft environmental impact statement was drafted in the form required by statute, but was ambiguous and self-contradictory. Paragraph one, concerning the environmental impact of the highway, failed to discuss Kimball Creek Marsh, and was too general and ambiguous. In redrafting an impact statement, state defendants may use information from the "Environmental Report", as pertinent, but must specifically discuss the effects of corridor E-3 on the area which that report concerned.

The second paragraph was inadequate. All adverse environmental effects should be listed, and harmful effects which cannot be avoided must be discussed to indicate what measures can be taken to minimize the harm. The state's draft environmental impact statement was far too general and not sufficiently detailed. This paragraph may include relevant information found in the "Advanced Planning Study," e.g., on page 3.

Alternative routes were sufficiently discussed in the state's "Advanced Planning Study," which may, as previously mentioned, be incorporated by reference into paragraph three of the new environmental impact statement.

Paragraph four of the draft impact statement is too general and not sufficiently detailed. The subjects discussed are relevant to the requirements of NEPA, but are conclusory rather than analytical. Relevant portions of the "Advanced Planning Study" (e.g., pp. 3 and 25-33) and of the "Environmental Report" (e.g., pp. 14-19) may be reproduced in paragraph four of the new statement.

The fifth paragraph of the draft impact statement is totally unsatisfactory.²⁰ It should list, among other things, (1) the cost of land, construction materials, labor, and other economically measurable costs which cannot be retrieved once a highway is constructed; and (2) the resources which may be irretrievably lost, and the nature of each such loss, to which a dollar value cannot be readily assigned — for example, the loss of forested recreational land.

Aside from these deficiencies, the state's first draft environmental impact statement was inadequately considered by FHWA. Indeed, the decision approving route E-3 came the first business day following receipt of the statement.²¹ The statute contemplates more deliberation than the time required to use a rubber stamp.²²

c. Subsequent Draft Environmental Impact Statements

Subsequent drafts of January 13, 1971 and February 8, 1971, obviously did not correct the situation, since the final agency decision as to location of the highway had already been made. The environmental impact statement was intended by Congress to provide decision-making bodies with sufficient information to make an environmentally sound decision, not to offer evidence of the wisdom of that decision once it has been made.²³

CONCLUSION

It is the judgment of the court that defendants have failed to conform to the procedural requirements of 42 U.S.C. § 4332(2)(C). The state must prepare a draft environmental impact statement which conforms to those requirements, circulate it among interested agencies, and make it available to the public prior to another public location hearing.²⁴ The state shall then prepare a final environmental impact statement, append to it a compilation of the comments received, and submit these, together with a new application for approval of the state's suggested location of I-90, to the Regional Federal Highway Administrator.²⁵ Federal defendants shall then process the application according to existing regulations.²⁶ Both the state and federal defendants sahll carefully [2 ELR 20446] consider the ecological effects of the highway upon Kimball Creek Marsh.

This opinion shall serve as the court's findings of fact and conclusions of law pursuant to Civ. R. 52(a); the order of the court has heretofore been entered.

1. 42 U.S.C.A. § 4321, et seq. (1972 Supp.); 23 U.S.C.A. § 138 (1972 Supp.).

2. See, e.g., D.C. Federation v. Volpe, __ F.2d __, D.C. Cir. October 12, 1971), 3 ERC 1143.

3. See, e.g., Willapoint Oysters, Inc. v. Ewing, et al., 174 F.2d 676 (9th Cir. 1949), cert. den. 338 U.S. 860, 94 L.Ed. 527, 70 S. Ct. 101, reh. den. 339 U.S. 945, 94 L.Ed. 1360, 70 S. Ct. 793; U.S. Steelworkers of America AFL-CIO v. N.L.R.B., 376 F.2d 770 (D.C. Cir. 1967), cert. den. 389 U.S. 1042, 19 L. Ed. 2d 832, 88 S. Ct. 783; and Carlisle Paper Box Co. v. N.L.R.B., 398 F.2d 1 (3d Cir. 1968).

4. Citizens to Preserve Overton Park, et al. v. Volpe, et al., 401 U.S. 402, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971), 2 ERC 1250; Road Review League, Town of Bedford, et al. v. Boyd, 270 F. Supp. 650 (S.D.N.Y. 1967).

5. 42 U.S.C.A. § 4332(2)(C)(1972 Supp.).

6. DoT Order 5610.1 (October 7, 1970) § 7(d).

7. Lathan, et al. v. Volpe, et al., __ F.2d __ (9th Cir. November 15, 1971), reh. __ F.2d __ (February 8, 1972).

8. 42 U.S.C.A. § 4332 (1972 Supp.). See Calvert Cliffs' Coordinating Committee, Inc., et al. v. U.S. Atomic Energy Commission, et al., 449 F.2d 1109 (D.C. Cir. 1971).

9. Calvert Cliffs', supra note 8, 449 F.2d at 1118.

10. Id. at 1114; Committee for Nuclear Responsibility v. Seaborg, __ F.2d __ (D.C. Cir. October 5, 1971), 3 ERC 1126, Cf. Scenic Hudson Preservation Conf. v. F.P.C., __ F.2d __ (2d Cir. Oct. 22, 1971, 3 ERC 1232.

11. 42 U.S.C.A. § 4332(2) (C) (1972 Supp.). See Natural Resources Defense Council, et al. v. Morton, et al., __ F. Supp. __ (D.C.D.C. Feb. 1, 1972), 3 ERC 1623.

12. Lathan, et al. v. Volpe, et al., __ F.2d __ (9th Cir. November 15, 1971), reh. __ F.2d __ (February 3, 1972).

13. Brooks, et al. v. Volpe, et al., __ F.2d __ (9th Cir. March 2, 1972).

14. See Named Individual Members of the San Antonio Conservation Society, et al. v. Texas Highway Dept., et al., 446 F.2d 1013, 1028 (5th Cir. 1971), reh and reh. en banc den. 446 F.2d at 1029, stay and cert. granted, 400 U.S. 939, 27 L. Ed. 2d 262, 91 S. Ct. 231, stay vac., 400 U.S. 961, 27 L. Ed. 2d 381, 91 S. Ct. 361, cert. den. 400 U.S. 967, 27 L. Ed. 2d 388, 91 S. Ct. 363, reh. den. 401 U.S. 926, 27 L. Ed. 2d 830, 91 S. Ct. 884; Morningside-Lenox Park Assn. v. Volpe, et al., 334 F. Supp. 132 (N.D. Ga. 1971); Nolop v. Volpe, et al., 333 F. Supp. 1364 (D.So. Dak. 1971), 3 ERC 1338; LaRaza Unida v. Volpe, et al., __ F. Supp. __ (N.D. Cal. Nov. 8, 1971), 3 ERC 1306. Cf. Willamette Hts. Neighborhood Assn. v. Volpe, et al., __ F. Supp. __ (D. Ore. December 3, 1971), 3 ERC 1520.

But see Ely, et al., __ F.2d __ (2d. Cir. January 17, 1972), 3 ERC 1595. Cf. Miltenberger, et al. v. Chesapeake & Ohio Ry Co., et al., 450 F.2d 971 at 974 (4th Cir. 1971).

15. See, e.g., Calvert Cliffs', supra note 8; Environmental Defense Fund, Inc., et al. v. Corps of Army Engineers, et al., 325 F.S. 728 (E.D. Ark, opinion #4, 1971); and Ely, et al., v. Velde, et al., 451 F.2d 1130 (4th Cir 1971).

16. Calvert Cliffs', supra note 8 at 1128.

17. C.E.Q. Guidelines, 36 F.R. 7724 (April 23, 1971); and DoT Policy and Memorandum 90-1, § 6(c) (August 24, 1971), reproduced in v. 1, "102 Monitor," October 1971, pp. 7-30.

18. Executive Order #11514, 3 C.F.R. ch. II at 104 (March 5, 1970); C.E.Q. Interim Guidelines, 35 F.R. 7390 (April 30, 1970); and DoT Order 5610.1 (October 7, 1970).

19. See, e.g., Natural Resources Defense Council, et al. v. Morton, et al., __ F.2d __ (D.C.Cir. Jan. 13, 1972), 3 ERC 1558.

20. Exhibit A-11, subparagraph (v):

As a practical matter the land area occupied by this highway will probably be continually devoted to this use, however, that portion of the right of way not specifically dedicated for highway purposes could be perpetuated as a green belt or open space. If practicality was not an issue and a decision was made to reconstitute the original condition, it would appear any thing done in implementing the proposal could be undone.

This is the entire text of the subparagraph.

21. November 27, 1970, was a Friday, the day after Thanksgiving; and November 30 was a Monday, the day of location approval.

22. Cf. Lathan, supra note 12, at p. 13 in the slipsheet opinion:

23. See, e.g., Calvert Cliffs', supra note 8.

24. P.P.M. 90-1 subparagraphs 6a-6g. The court notes that subparagraph 6c provides:

. . . . An additional location or design public hearing will not be required for the sole purpose of presenting and receiving comments on the draft environmental statement for those projects which were processed in accordance with procedures in effect at the time.

Since the court believes that statutory and regulatory procedures existing at the time the state submitted its request for location approval were not properly followed, the exception quoted is inapplicable to this case.

25. P.P.M. 90-1, subparagraph 6i.

26. P.P.M. 90-1, subparagraphs 6j-1.

Greene County Planning Board v. F.P.C., et al., __ F.2d __ (2d Cir. January 17, 1972), 3 ERC 1595, holds that the federal obligation to prepare an environmental impact statement may not be delegated to a state agency. Cf. Ely, et al., v. Velde, et al., 451 F.2d 1130 at 1139 (4th Cir. 1971); and Miltenberger, et al. v. Chesapeake & Ohio Ry. Co., et al., 450 F.2d 971 at 974 (4th Cir. 1971). This question has not been presented in this case.