Committee to Stop Route 7 v. Volpe

C.A. No. 15,054 (D. Conn. September 6, 1972)

In this opinion the court denied all motions to amend the judgment of July 7, 1972, (2 ELR 20446) enjoining construction of relocated Connecticut Route 7 until preparation of an environmental impact statement. The court ruled that plaintiff was not entitled to attorneys' fees since 28 U.S.C. § 2412 prohibits the award of costs against the United States unless specifically authorized by Congress, and the state defendants in this case played too minor a role to be liable for such fees. The court further ruled that it was premature to determine the lawfulness of the procedure the federal defendants plan to use in preparing the environmental impact statement. It would be proper to rule on the procedure only after it is completed. State defendants introduced several motions to exempt certain activities from the coverage of the injunction, all of which the court denied as unlawful, premature, or not within the scope of the injunction.

Counsel for Plaintiffs
Haynes N. Johnson
Alphonse R. Noe
Bryan, Parmelle, Johnson & Bollinger
460 Summer Street
Stamford, Conn. 06901

Counsel for Federal Defendants
Henry S. Cohn Ass't U.S. Attorney
450 Main Street
Hartford, Conn. 06103

Counsel for State Defendants
Clement J. Kichuk Ass't Attorney General
Rm. 543
State Office Building
Hartford, Conn. 06115

[2 ELR 20611]

Newman, J.

Following this Court's decision of July 7, 1972, enjoining construction of relocated Route 7 until preparation of an environmental impact statement as required by federal law, motions to amend the judgment entered July 17, 1972, were filed by both sides. Plaintiffs seek an award of attorney's fees. The state defendants want the scope of the judgment modified in several respects. The federal defendants seek clarification as to how the judgment is to be complied with.

The claim that attorney's fees be awarded as part of the costs of litigation is based upon the Supreme Court's decision in Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970), which recognizes the equitable power of a court to award attorney's fees, even in the absence of specific statutory authorization, when successful litigation vindicates a statutory policy. The implications of Mills would seem to have pertinence to litigation brought to enforce the requirements of the National Environmental Policy Act. However, the claim here encounters the obstacle of 28 U.S.C. § 2412, which prohibits the award of costs against the United States unless specifically authorized by Congress. To secure enforcement of some statutes, Congress has authorized the award of attorney's fees to successful litigants. See, e.g., 42 U.S.C. § 2000a-3 (b). Whether the United States itself should be liable for attorney's fees when it loses litigation is a matter for Congress to determine, at least so long as the prohibition of § 2412 stands.

There remains the question of whether it would be fair to award attorney's fees against the state defendants, who do not have the insulation of § 2412. The Act is a mandate for federal agencies. It is their action that must meet certain statutory standards. While the action of a federal agency is often taken in cooperation with a state agency, the entity primarily responsible for the "major Federal actions" for which the Act requires impact statements is the federal agency. 42 U.S.C. § 4332 (2) (C). Moreover, in this case, the failure to comply with the Act is properly laid at the doorstep of the federal, not the state agency. The state agency simply relied upon a federal regulation which attempted to postpone the effective date of the Act. In these circumstances it would not be appropriate to impose attorney's fees as a cost upon the state, when the federal agency made the erroneous decision which led to the plaintiffs' judgment.

II.

The state defendants raise a variety of concerns. First, they urge that the span of completed highway within Norwalk be exempted from the impact statement required by the judgment. This cannot be done consistently with the Act's requirement that the impact statement contain a detailed statement on "alternatives to the proposed action." 42 U.S.C. § 4332 (2) (C) (iii). The proposed action is to build an expressway that links Norwalk with, at least, New Milford. In considering alternatives to this proposal, a proper impact statement will have to give appropriate consideration to the need for an expressway at least between these two cities, and, if the need is established, then to the pros and cons of alternate routes. The fact that an independently usable segment already exists in Norwalk does not in any way lessen the need to articulate such consideration. Of course, if, after such consideration, the presently proposed route is selected, an impact statement assessing adverse environmental effects pursuant to § 4332 (2) (C) (ii) would not be expected to devote much attention to a segment already built, although factors attributable to increased traffic volume might have to be considered.

Second, the state defendants urge that the impact statement exempt from its coverage the two projects which have been put out for bid. This, in effect, is a request for a rehearing of the Court's original decision. That request is denied.

Third, request is made to exempt from the judgment any prohibition against state acquisition of certain properties in the right of way of the expressway as presently proposed. The state has submitted a list of those properties where agreements with the owners had been reached at the time of this Court's judgment or where owners, in reliance on representations made by the state prior to the judgment, made agreements for purchase of other properties and other similar commitments. This Court's judgment enjoins "any steps to construct any portion of relocated Route 7." While clarification of the judgment might be needed to determine whether some preliminary work affecting land is a step in the "construction" of the expressway, acquisition of these properties is not within the scope of the injunction on any reasonable interpretation of the judgment, and no amendment is needed in this regard.

Similarly, no amendment is needed in response to the state defendants' request to remove or demolish structures on properties already acquired by the state to guard against vandalism and eliminate hazardous conditions. Such actions by the state are not steps in construction of the expressway within the meaning of the injunction.

A request for modification concerning certain utility construction was withdrawn at the hearing on this motion.

Fourth, the state defendants want the judgment to specify that the construction of new Route 7 between Danbury north to New Milford will not require an impact statement if only state funds are used for construction of this portion of the route. That issue is not ripe for adjudication at this time. In the first place, the initial responsibility for determining the proper length of highway to be covered by an impact statement rests with the federal agency responsible for its preparation.A court asked to rule on whether there has been impermissible segmenting should have before it the benefit of the federal agency's decision, supported by the considerations that agency, in the exercise of its expert judgment, deems pertinent. Secondly, court review of such a decision, under normal principles of judicial review of agency action, can best be made upon a record that has fully developed the facts, including the facts concerning the extent of federal participation, by funding and otherwise. Whether an impact statement must cover the span from Danbury to New Milford is an issue that may arise in the future concerning whether there has been compliance with the Act. But that issue will not raise any question as to compliance with this Court's judgment in this action.

Finally, the state defendants want the judgment amended to permit the reconstruction of an interchange between Route 33 and existing Route 7, which the state represents will be needed whether or not relocated Route 7 is ever built. Again, the judgment need not be amended for this purpose. The judgment enjoins construction of the new expressway. The intersection in question is not a step in the construction of the new expressway within the meaning of the injunction, even though it will be available for connection with the new expressway if the expressway is ultimately built according to the present proposal.

III.

The request made by the federal defendants is somewhat perplexing. At trial the Government took the position that the provisions of the Act would be satisfied if an impact statement was prepared by state officials. The Court rejected that claim, at least [2 ELR 20612] with respect to the final version of the impact statement, for reasons set forth in the opinion filed July 7. The federal defendants now take the position that under the existing procedures followed by the state highway officials and the Federal Highway Administration, the federal approval of the document prepared by the state officials amounts to "preparation" of the statement by federal officials within the meaning of this Court's judgment. The federal defendants seek an amended finding of fact that would give approval to the procedures currently being followed.

This request, unlike the requests for modification submitted by the state defendants, does not seek clarification of the injunction, i.e., clarification of the scope of activity that might arguably fall within the prohibition of highway "construction." The federal defendants want an advance ruling on how the Act must be complied with, or, more precisely, whether the method outlined in the affidavits submitted would constitute compliance with the Act, if the federal officials follow those procedures with respect to the impact statement to be prepared for relocated Route 7.

Just as with the state's request for an advance ruling on whether the impact statement must cover any portion of the highway north of Danbury, the issue now posed by the federal defendants is not ripe for adjudication. A court reviewing whether the manner of preparation of an impact statement complies with the Act should have the benefit of the agency's action in a specific case, supported by the agency's expertise as to why such action complies with the Act. All that is before me at this point is an "administrative intention" that has been "expressed" but which "has not yet come to fruition." Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 434 (1948), citing Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 324 (1936). Moreover, in carrying out its intention, the federal agency may decide to take innumerable specific steps during the course of the preparation and approval of the final impact statement. It would be premature to rule now upon the adequacy of the broad outlines of the procedure as set forth by the affidavits until these procedures have been fleshed out with the details of the specific steps the appropriate federal officials actually take.

It is one thing to enter a declaratory judgment that relocated Route 7 requires "the preparation of an environmental impact statement by federal officials." That is no more than a ruling that the particular project at issue in this litigation requires compliance with the Act. It is far different to go beyond this ruling and make a finding that certain general procedures which the agency intends to use will comply with the Act.

The whole body of law dealing with judicial review of agency action is replete with demands by administrative agencies. often heeded by courts, to refrain from ruling upon the lawfulness of agency action until the agency has acted. There may be situations where the imminence of agency action so threatens litigants' rights that adjudication should be made. But here the agency itself wants an advance ruling before it has exercised its own informed discretion in dealing with the specifics of the case at hand. Such a request is not appropriate for adjudication.

Accordingly, all of the motions to modify the judgment or findings are denied.