Daly v. Volpe

Civil Action No. 9490 (W.D. Wash. 1972)

For the earlier opinion of the district court, see 2 ELR 20443. On rehearing, the court holds that the defendants failed to comply with the National Environmental Policy Act (NEPA) which requires a detailed environmental impact statement. The court orders defendants to give sufficient notice to the public, as well as an opportunity to comment upon the proposed highway, and to prepare and review a fresh impact statement.

Counsel for Plaintiffs
Irving M. Clark, Jr.
J. Richard Aramburu
209 College Club Building
Seattle, Washington 98108

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

Thomas R. Garlington Assistant Attorney General
Department of Highways
Fifth Floor, Highway Licenses Building
Olympia, Washington 98504

[3 ELR 20032]

Beeks, J.

The court's opinion of March 31, 1972, identified two types of deficiencies under the National Environmental Policy Act of 1969 (NEPA)¹ — procedural defects in the preparation and circulation of the impact statement, and lack of detail therein. The "Environmental Report" and "Advance Planning Study" which were introduced as evidence at the trial were not organized in the manner outlined by NEPA. While this defect was not in itself fatal to defendants' position, it did force the court to piece together a completed impact statement from a number of sources, as if putting together a jigsaw puzzle, instead of merely reviewing a properly designed impact statement, which is the proper function of the court.² In preparation for the rehearing on June 15, 1972, defendants conducted what has been appropriately characterized as a "cut and paste job," by which they mercifully rearranged the evidence which the court has again reviewed. I am still satisfied that my original opinion is correct, and that the defendants did not prepare the "detailed" statement required by law.

Most of the procedural defects relate to inadequate advance notice to the public of defendants' intention to favor route E-3, and the lack of opportunity by the public to meaningfully comment on the impact statement. While the public hearing is not to be equated with a quasi-judicial or quasi-legislative proceeding,³ there can be no doubt that such public comment is an essential part of the input for the decision-making process in federal-aid highway projects.⁴ The impact statement is ordinarily made available to the public for some time prior to the hearing.⁵ In this case, there was insufficient notice to give the public enough time to consider the environmental impact of the proposal.

Because of the urgency of the situation in this case, and because the alternative routes (including E-3) were clearly outlined at the September 1, 1970 hearing, defendants will not be required to conduct a new location hearing. They must, however, follow a procedure which is reasonably tailored to allow effective public comment to aid in the correction of the deficiencies in the impact statement outlined in the opinion heretofore filed in this case.⁶

Arlington Coalition on Transportation, et al. v. Volpe, et al., __ F.2d __ (4th Cir. 1972), 3 ERC 1995, is distinguishable. The hearings in that case were held in 1958, and environmental effects were not considered. Here, the hearing was much more recent, and there can be no dispute that the impact of the highway on the environment was considered. In Ward v. Ackroyd, et al., __ F. Supp. __ (D.Md. 1972), 4 ERC 1209, a major route alternative was not even identified at the hearing. Here, the alternatives were clearly identified at the hearing. Willamette Hts. Neighborhood Ass'n, et al. v. Volpe, et al., 334 F. Supp. 990 (D.Ore. 1971), 3 ERC 1520, is also distinguishable. There, a substantial addition to the original plans was made without a new hearing at all, and the state conceded that the applicable regulation had not been followed.

In order to prevent the delay necessarily involved in defendants' preparing and submitting a schedule for compliance, the court is directing the following course of action, which is drawn from the requirements set forth in PPM 20-1 and PPM 90-1:

State and federal defendants shall circulate a draft impact statement for comment from the appropriate agencies, as provided by PPM 90-1 par. 6c and d. In order to expedite final disposition of this matter, defendants may use the impact statement filed herein as the draft impact statement. Moreover, in lieu of a [3 ELR 20033] public hearing, state defendants shall publish a public notice in a newspaper having general circulation in the vicinity of the segment of the highway under question. The notice shall concisely describe the proposal, briefly summarize the alternatives considered, and include such other general information regarding the environmental impact of the project as the state deems desirable. A map depicting the project as proposed and the alternative routes shall be included in the notice. The public notice shall specify that the draft impact statement and other pertinent information will be available for public inspection and copying for sixty days following the date of publication of the notice, and shall specify reasonable locations and times where these materials will be made available for public inspection and copying. The locations described in PPM 90-1 par. 6g are reasonable. The notice shall state that written comments will be considered by project administrators, and it shall briefly describe the procedure for submitting such comments. Comments received sixty days after publication of such notice need not be considered by defendants.Any additional research deemed necessary by defendants to prepare a detailed impact statement shall be conducted. In light of such research, and in light of comments received from government agencies and the public, state defendants shall prepare and submit for federal approval a final impact statement. All comments received shall be appended to the final impact statement, provided that comments received from the general public may be summarized in groups by subject matter. Federal defendants shall process the final impact statement in accordance with PPM 90-1 par. 6j-1.

In complying with the court's order, 1 think it appropriate to state that in the opinion heretofore filed the court's remarks with respect to Kimball Creek Marsh have been given greater weight by one or more of the parties than was intended. The impact of the highway on Kimball Creek Marsh should be given no more and no less emphasis by defendants than its impact on any other area in proximity to the highway.

1. 42 U.S.C.A. §§ 4321 et seq. (1972 Supp.).

2. Harrisburg Coalition Against Ruining the Environment, et al. v. Volpe, et al., 330 F. Supp. 918 at 928, 932 (M.D. Penn. 1971), 2 ERC 1671.

3. Citizens to Preserve Overton Park, et al. v. Volpe, et al., 401 U.S. 402, 415, 28 L. Ed. 2d 136, 91 S. Ct. 814 (1971), 2 ERC 1250.

4. See, e.g., Executive Order No. 11514 § 2(b) (March 5, 1970), 35 F.R. 4247; Council on Environmental Quality (CEQ) Interim Guidelines § 10(a) and (b) (April 30, 1970), 35 F.R. 7390; CEQ Guidelines § 10(e) (April 23, 1971), 36 F.R. 7720; Department of Transportation Order 5610.1 § 7(d) (October 7, 1970); and Federal Highway Administration Policy and Procedure Memorandum (PPM) 90-1 par. 6(c) (August 24, 1971).

5. PPM 90-1 par. 6 (August 24, 1971).

6. Cf. E.D.F., et al. v. Corps of Army Engineers, et al., 325 F. Supp. 749 at 757 (E.D. Ark. 1971) (Opinion #5).