Iowa Citizens for Environmental Quality, Inc. v. Volpe

Civil No. 72-17-1 (S.D. Iowa November 6, 1972)

A suit seeking an injunction against the construction of a segment of a federally funded interstate highway on the grounds that there were violations of the National Environmental Policy Act (NEPA) is dismissed. The court holds that the environmental impact statement contains sufficient discussion and consideration of feasible alternatives to the route chosen and decides that responsible federal officials may rely upon the state agency to prepare an environmental impact statement and limit themselves to review and revision.

Counsel for Plaintiffs
Robert B. Scism
Scalise, Scism, Gentry, Brick & Brick
Ninth Floor, Flemming Building
Des Moines, Iowa 50309

Counsel for Defendants
Allen L. Donielson U.S. Attorney
Keith E. Uhl Assistant U.S. Attorney
113 U.S. Courthouse
Des Moines, Iowa
%asher E. Schroeder Assistant Attorney General
State Office Building
Des Moines, Iowa

[3 ELR 20013]

Stuart, J.

The above entitled matter was regularly reached and called for [3 ELR 20014] trial November 6, 1972. Plaintiffs appeared by their attorney, Robert B. Scism. The federal defendants appeared by the United States District Attorney, Allen L. Donielson and his assistant, Keith E. Uhl. The state defendants appeared by their attorney, Assistant Attorney General for the State of Iowa, Asher E. Schroeder. After having heard the evidence and statements of counsel and after having examined the files and briefs the Court finds:

This action was brought by Iowa Citizens for Environmental Quality, Inc. and certain individuals to enjoin defendants from proceeding with the steps necessary to construct a segment of Interstate 35 (I-35). The two ultimate issues are (1) the sufficiency of the Environmental Impact Statement, and (2) the legality of the federal defendants' practice of relying upon the state agency to prepare the environmental statement which the federal defendants reviewed, adopted and approved.

The advisability of building an interstate highway and the desirability of using a diagonal route rather than a right angle route are not issues here. These are administrative decisions for the responsible governmental agencies, not the courts.

Interstate 35 when completed will extend from the Gulf of Mexico to the Canadian border. For all practical purposes the Iowa route is complete except for the 27.4 mile segment involved in this lawsuit, designated I-35-6. Contract lettings on this project are set for December 5, 1972.

Planning and studies for the location of I-35 to bisect Iowa between the States of Missouri and Minnesota were initiated at the start of the Interstate program and in 1956 the State Highway Departments of Iowa and Minnesota and the predecessor of FHWA, the Bureau of Public Roads (BPR), mutually accepted a tentative location which paralleled the existing U.S. 69 in a generally northsouth alignment. This established the system upon which studies were based to determine a final location. One purpose for the designation of this tentative location was to comply with federal legislation and BPR's instructional manual which required a tentative location to serve as a basis for the Interstate Cost Estimate. The tentative location was not intended to be a commitment to a final location.

In August of 1963, the Iowa State Highway Commission (ISHC) conducted a public hearing on essentially the corridor used for the Interstate Cost Estimate. At the hearing a delegation of citizens from Mason City presented two alternate corridors which would locate a portion of the highway 20 miles to the east and closer to Mason City. This proposed alignment suggested by the Mason City delegation contains the diagonal through parts of Franklin and Wright Counties located south of Mason City, Cerro Gordo County which is the subject of this suit.

In December 1963, the ISHC ordered its staff to further study alternate routes which included those suggested by the Mason City delegation. It was this decision to consider additional alternates which included the diagonal alignments that gave rise to the controversy which has not abated. After much public clamor, which included visits to BPR in Washington by both advocates and antagonists of the diagonal location, and voluminous technical correspondence between BPR and ISHC, it was ultimately determined in January 1965 that a final location study of all alternate routes be undertaken. Eighteen possible corridors between U.S. 69 and U.S. 65 were initially considered, some of which employed diagonal alignments. Seven of the 18 corridors showed sufficient merit to be selected for more detailed study.

Based upon the highway location studies, the State Highway Department conducted a corridor hearing on September 29, 1965, pursuant to BPR Policy and Procedure Memorandum 20-8 issued August 10, 1956, and 20-8(1) issued June 16, 1959. This hearing included consideration of the proposed diagonal. The hearing was well attended and lasted for approximately six and a half hours. On November 29, 1965 the BPR approved the route involved here. While opponents to the diagonal portion of I-35 were actively seeking to have the approval rescinded, short of filing a lawsuit, the other sections of the highway project in Worth, Cerro Gordo and Hamilton Counties were progressing in a normal manner.

During the design of this project, several changes in procedures developed. PPN 20-8, Public Hearing and Location Approval was changed effective January 14, 1969, and created a two hearing process — corridor and design. The corridor hearing had been held as stated above on September 29, 1965. As the studies advanced on the approved location, revisions in interchange and/or grade separation and line adjustment were made on the basis of the more detailed data available. A design hearing to present these changes and to discuss relocation assistance and show right-of-way needs for the proposed section of I-35 through Wright and Franklin Counties was held October 1, 1970 at Latimer, Iowa. Although environmental effects were considered as part of design criteria, no environmental impact statement was prepared.

The State of Iowa prepared a design study report and submitted it with their December 16, 1970, request for design approval of I-35 in Wright and Franklin Counties. The Federal Highway Administration requested the State to furnish additional information regarding the social and economic effects of the highway, analysis of the public hearing comments, and a listing of the prior studies. This information was provided on April 19, 1971, and all requirements of PPM 20-8 were satisfied. However, because of the established date of February 1, 1971, FHWA required that an environmental impact statement be prepared for this project.

The ISHC pursuant to the said interim guidelines of FHWA prepared a draft environmental impact statement (EIS) on February 17, 1971. It was disseminated to sixteen Federal, State, and local agencies for their assessment and evaluation of the potential environmental impact of the highway. An additional public hearing was not required for the purpose of presenting and receiving comments on the draft environmental statement.

The final environmental statement was received from the State of Iowa on April 19, 1971 which included the comments made by the agencies reviewing the draft environmental impact statement, as well as adverse comments raised at the design public hearing. Concern was expressed for disruption of drainage systems, soil erosion and water pollution during the construction season, diagonal severance damages, and conversion of agricultural land to a public owned highway.

On May 23, 1971 the Assistant Secretary for Environment and Urban Systems made comments concerning the Final Environmental Statement relating to possible conflict with local drainage systems and the impact on Beeds Lake State Park. The final EIS was thereafter supplemented by an interdepartmental memorandum dated June 23, 1971 (defendants' Exhibit C) to which was attached the "Special Provision" inserted in Iowa Highway construction contracts relating to erosion control during construction (defendants' Exhibit B).

The final environmental statement was approved July 16, 1971. The state was informed of this approval on July 27, 1971 and the EIS was promptly filed with the Council on Environmental Quality. The design as shown in the State's study report was approved by FHWA on September 2, 1971. This design shows that the project consists of a four-lane divided freeway with full access control, depressed median, and interchanges.

SUFFICIENCY OF THE ENVIRONMENTAL IMPACTS STATEMENT

Congressional policy as expressed in NEPA is that the federal government shall cooperate with state and local governments in using all practicable means consistent with other essential considerations of national policy to protect environmental values. 42 U.S.C. § 4331.

"Congress did not establish environmental protection as an exclusive goal, rather it desired a reordering of priorities, so that environmental costs and benefits will assume their proper place along with other considerations." Calvert Cliffs' Coordinating Committee, Inc. v. United States Atomic Energy Commission (D.C. Cir., 1971), 449 F.2d 1112. A balancing of interests is contemplated.

To achieve this goal Congress included an "action forcing" section, 42 U.S.C. § 4332, designed to see that the federal agencies exercise the discretion given them in line with the announced policies. These procedural provisions are to be strictly complied with. Calvert Cliffs' v. U.S.A.E.C., supra, 1112-1113.

NEPA also requires that the announced policy "* * * that the prompt and early completion of theNational System of Interstate and Defense Highways is essential to the national interest and is one of the most important objects of this Act" 23 U.S.C. § 101(h) be interpreted and administered in accordance with its policies. 42 U.S.C. § 4332.

[3 ELR 20015]

However, I am in accord with the position expressed by Judge Eisele in Environmental Defense Fund, Inc. v. Corp. of Engineers of the U.S. Army (E.D. Ark., 1972), 342 F. Supp. 1211, 1217:

"Congress, we must assume, intended and expected the courts to interpret the NEPA in a reasonable manner in order to effectuate its obvious purposes and objectives. It is doubtful that any agency, however objective, however sincere, however well-satisfied, and however well-financed, could come up with a perfect environmental impact statement in connection with any major project. Further studies, evaluations and analyses by experts are almost certain to reveal inadequacies or deficiencies. But even such deficiencies and inadequacies, discovered after the fact, can be brought to the attention of the decision makers, including ultimately, the President and Congress itself. All of the usual methods of communication, political and otherwise, are still available for this purpose.

"The Court does believe that the Congress intended that the NEPA be used as a vehicle for the continual delay and postponement of legislative and executive decisions."

With these principles in mind, it is my opinion that an environmental statement which treats the procedural requirements of 42 U.S.C. § 4332 to some extent must be examined in the light of the particular facts and circumstances surrounding the project for which the EIS is being prepared in order to determine its suffieiency. The extent of the details required must necessarily be related to the complexity of the environmental problems created by the project.

The Court followed this procedure in Environmental Defense Fund, Inc. v. Corps. of Engineers (N.D. Miss., Aug. 7, 1972), 2 ELR 20536, 20542:

"Thus a § 102 statement must thoroughly discuss the significant aspects of the probable environmental impact of the proposed agency action. By definition, this excludes the necessity for discussing either insignificant matters, such as those without import, or remote effects, such as mere possibilities unlikely to occur as a result of the proposed activity. This criterion not only adheres to the CEQ guidelines but comports with a rule of reason; it does not, however, encompass the necessity for disclosing 'all known possible environmental consequences'."

At the time the EIS was being prepared for project I-35-6 the northern and southern termini for the project had been fixed by the construction of other segments of I-35. In Iowa only this 27.4 mile segment of I-35 had not been completed. The northern terminus is about 11 miles east of the southern terminus. The area involved in any route between these two points is essentially the same — tillable farmground. The impact on the natural environment would not differ greatly regardless of which particular route was selected. On the route selected only five families are being displaced. It does not affect any historical, archeological, geological, natural or recreational features or man made structures of any consequence, other than the five homesteads previously mentioned. The greatest environmental impact will be the adverse effect on the farming operations caused by diagonal severance, the straightening of the Iowa River for less than one-half mile and the effect of the construction of a four lane limited access divided highway across tillable farmland.

I have carefully examined the EIS in the light of the claimed deficiencies and while acknowledging it contains many conclusions, it appears to me to have been sufficient to alert all concerned parties to the impact of this particular project on the environment. No unique features are involved which would require deeper research and closer analysis. Plaintiffs evidence does not show the conclusions were erroneous or misleading or point to significant environmental impacts which were not considered. The significant environmental consequences are related to the selection of a diagonal route and the consequent adverse effect on farming operations. Two claims deserve further discussion. (1) The sufficiency of the study and presentation of alternatives. (2) The sufficiency of the discussion concerning the effect on agricultural land and farming operations.

(1) The EIS presentation on alternatives is as follows: "Alternatives. Since the conception of the Interstate System there have been various proposals for the north-south artery through Iowa. The present project is the culmination of much study. The project termini are indicated on the attached map. An alternate connection of these termini would be some combination of north-south lines and an east-west connection. This would involve two right-angle turns. Approximately 7.6 miles of additional construction would be involved. Some of these additional construction costs would be offset by lower damages for severance. Additional costs to the road user would make this possible alternative imprudent. One additional alternative should be considered in planning any transportation improvement.That is the possibility of doing nothing. In the case of this project, that alternative must also be considered imprudent. Sections of I-35 at both ends of the project have been approved. A gap in such a major facility would cause unwarranted extra road-user costs."

Because the project in question is to close a gap between two segments of the interstate system the viable alternatives are limited. In this particular instance, no amplification was required on the statement that it was imprudent to do nothing. As there is no claim that any particular diagonal would have less environmental impact than the present proposal, the only significant alternative would be two right angle turns to reach the same termini. In my opinion the statement adequately sets forth the effect of such alternative. Technical data is not required to alert the reader to the environmental advantages and disadvantages of these two alternatives.

It was suggested during trial that an alternative which was not mentioned was the use of existing right of ways and the acquisition of necessary adjoining land to widen them. There was evidence that such alternative would be disruptive of homes and businesses next to the existing road and call for additional farmland to construct service roads alongside the interstate. I am not satisfied the evidence shows such alternative to be a practical one, or that the failure to mention ir renders the EIS inadequate.

Plaintiffs claim the statement does not disclose how much agricultural land will be removed from production by the project for the highway and borrow. No figures are listed, but in this instance the only viable alternative would require construction of 7.6 more milesof highway over similar lands and obvioulsy take more land out of production. No suggestion has been made which would result in less land being taken out of production.

Plaintiffs also claim the consequences of a diagonal on long-term use of lands for farming is not discussed or weighed. While the difficulties encountered in farming diagonal fields were not presented in detail, the EIS recognized the diagonal severance as having a significant impact on the environment creating a more severe hardship than parallel severance. It also pointed out that the damages sustained are primarily matters to be considered in compensation for condemnation. In the Court's opinion, the failure to treat this problem more in detail does not render the EIS inadequate.

Plaintiffs also make reference to peatbogs located on the chosen route. The bogs were not mentioned in the EIS, but in early correspondence on the matter it was pointed out that the bogs were an engineering rather than environmental consideration and that the existed generally throughout the area and were not deep enough to cause serious engineering problems. Failure to mention them did not render the EIS inadequate.

I therefore conclude that the Final Environmental Statement as supplemented by defendants' Exhibits B and C satisfied the requirements of NEPA and that the Draft Environmental Statement was sufficient to alert interested parties to the impact of this particular project on the environment and that the circulation of the draft statement was adequate to meet statutory requirements.

PREPARATION OF EIS BY THE STATE HIGHWAY COMMISSION

Plaintiffs claim the duty to make the EIS cannot be delegated by the Department of Transportation or FHWA to the Iowa State Highway Commission, which admittedly is the procedure followed in all environmental statements prepared for federal aid highways.

Without detailing the administrative history relating to such contention, it is sufficient to say Council on Environmental Quality, the Department of Transporation (DOT) and FHWA have in administrative decisions consistently decided the process employed here comports with the statutory requirements and goals of NEPA.

[3 ELR 20016]

In Pizitz v. Volpe (5th Cir., 1972), __ F.2d __, 4 ERC 1401, the Fifth Circuit summarily disposed of a similar contention by saying: "We find no merit in the contentions of appellants that the responsible federal officials could not, under applicable federal statutes accept an environmental impact statement prepared by a state highway department."

A footnote to this opinion referred to certain administrative decisions and guidelines.

I agree with this conclusion.

Plaintiffs rely on Greene County v. FPC, __ F.2d __, 3 ERC 1595, 2 ELR 20017 and highway cases supporting their position which rely on Greene County. Northside Tenants' Rights Coalition v. Volpe (E.D. Wis., July 20, 1972), 2 ELR 20553, Committee to Stop Route 7 v. Volpe (D. Conn., July 7, 1972), 2 ELR 20446.Reliance on Green County, in my opinion, is misplaced. That case involved a regulatory agency which allowed the applicant for a permit to prepare an environmental statement. The self interest in such situation is obvious and the regulatory agency should be required to make an independent study of its own as to the environmental consequences.

The same reasoning does not apply to federal grant in aid programs, specifically highway construction. A well developed plan of cooperation and heavy reliance on state agencies has long existed. They have for many years handled all steps necessary to construct a highway. The interest of the state is certainly no more than that of the federal agency which supplies 90% of the financing.

The record is clear that FHWA did not merely rubber stamp the state's work. FHWA recommended changes in the draft statement and supplemented the final EIS by additional information. FHWA reviewed, approved and adopted the statement thus making it its own. In my opinion this was sufficient to satisfy the statutory requirements.

I therefore conclude that plaintiffs' prayer for injunctive relief should be denied and this action dismissed at plaintiffs costs.

IT IS ORDERED that the Clerk of the Court is authorized and directed to prepare judgment in accordance herewith.