Live in a Favorable Environment, Inc. v. Volpe

No. 137-72-A (E.D. Va. November 20, 1972)

A permanent injunction is granted against a project to build a bridge. The court holds that the existing environmental statement reveals inadequate consideration of air and noise factors and consequently fails to satisfy either § 102(2) (C) of the National Environmental Policy Act (NEPA) or § 4(f) of the Department of Transportation Act. In addition, the court orders new design and location hearings to conform to the Federal Highway Act.

Counsel for Plaintiffs
Bernard S. Cohen
Cohen and Rosenblum, Ltd.
P.O. Box 1079
110 North Royal Street
Alexandria, Virginia 22313

Counsel for Defendants
Stuart Dunn Assistant Attorney General
Supreme Court Building
Richamond, Virginia

Irwin L. Schroeder
Department of Justice
10th and Pennsylvania, N.W.
Washington, D.C.

[3 ELR 20039]

Bryan, J.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

There are, as counsel have recognized, three aspects of the case — the adequacy of the 4(f) statement, the requirement or not of a NEPA statement, and the requirement or not of any additional design and location hearings.

There are some things that are common to all three. One of those is that all the designs, it seems to me, and all of the considerations and opinions which were reached used as a factor the keeping of the southernmost span at its present location because it was contemplated that the existing piers under that span could continue to be used. That was properly considered as a very relevant factor at the time in reaching the decisions that were reached on all the designs and taken into account in all the considerations.

Since December of 1971, I believe, when Howard, Needles, Tammen & Bergendoff first made the recommendation that those piers not be used, the consideration of the use of the existing piers [3 ELR 20040] as a relevant factor has subsequently turned out to be not only an irrelevant but a mistaken factor upon which to rely.

None of the administrative hearings that have been held so far, no statement filed so far, and the decision not to file a NEPA statement has relied upon what is now the relevant factor that those piers are not to be used, and it seems to me that affects the integrity of all the decisions that have been made so far.

I am not impressed by these after-the-fact testimonials that this is the only way that the bridge could have been designed and that there will be no pollution from the proposed design as shown in Exhibit 42, noise or air.

The recipient in Court of that testimony misses the point, it seems to me of what NEPA and the 4(f) statement and the Highway hearing are supposed to cover. The scheme of those statutes, which must be read together, is that there should be an administrative consideration of the relevant factors, following which there should be a considered decision. That has not been done in any of the three decisions here under consideration.

The 4(f) statement, while it concerned itself when it was filed in early 1972 with the physical takings and the minimization of harm from physical takings, never considered any plan which avoided the use of any parkland. Moreover, it did not consider the noise or pollution, unsightliness and so on which were recited as elements of possible constructive taking in the D.C. Federation case. I was willing to have an open mind on whether a 4(f) statement should contemplate a constructive taking; however, I was supported in my feeling that it probably whould when I found that the Highway Department now concedes that environmental, air and noise pollution factors are proper 4(f) statement ingredients. The 4(f) statement as filed is inadequate.

Insofar as NEPA and the environmental statement is concerned, I conclude that one must be filed. I am perfectly willing, as suggested by Mr. Dunn, to follow Arlington Coalition, and I don't think I have any choice about it, as a matter of fact, but even following it and weighing the factors, there must be one filed.

You start out, insofar as NEPA is concerned, with the proposition that any doubt about whether NEPA is applicable to this on-going project must be resolved in favor of its applicatility, and the costs of alternatives must be weighed against the benefits or the possible benefits which might accrue.

The construction contracts here have not been let. As I recall, they had been in Arlington Coalition. The P.S. & E. approval has been obtained, it is true, but it was only obtained about six weeks before suit was filed and after open citizen opposition had developed.

The design and location approval (and I do not think this is the critical factor in determining whether NEPA covers an ongoing project such as this) was only obtained ten days before the arbitrary date that the Federal Highway Administration has picked as the crucial date, that of January 31, 1971.

The expenditure for non-reimbursable engineering costs is a factor. I am not satisfied, first of all, that they are all non-reimbursable. It may well be that this design as exhibited in Exhibit 42 may be the ultimate design that is after the administrative hearings determined to be the best design, in which event these engineering costs will not be lost; but in any event, the incurred cost, according to either Mr. Bolton or Mr. Coldiron — I forget which — is no more than ten percent of the total project cost, a substantial amount, I agree, but certainly not as much as in some of these cases where the NEPA statement has been required.

The consequence of the delay and possible danger from the delay, of course, are the elements which are argued as outweighing any benefits which might accrue. I am not impressed with the danger aspect of it, and I think the delay is not going to mean that people are going to fall into the R.F.&P. right-of-way any time soon.

The same considerations which dictate the requirement of an environmental impact statement being filed also go to the public hearings required under the Federal Highway Act.

The October 1968 hearing was inadequate for almost any purpose, but it certainly was inadequate for the social, economic and environmental impact of both the location and design.

The stage of progress here and the costs of altering the project certainly have not reached a point where the benefits which might accrue from new hearings do not outweigh those costs.

I will adopt what I have said, together with the Stipulations, as the Court's Findings of Fact. The Court concludes that an injunction should be issued enjoining further construction or progress on the project until there has been an adequate 4(f) statement filed, until an environmental impact statement has been filed, and until appropriate and proper hearings under the Federal Highway Act have been held.

I think it should be in the form of a decree, Mr. Cohen. I will direct you to prepare such a decree and submit it to counsel for the defendants for approval as to form. If you cannot agree on the form of it you can notice it for hearing.

The foregoing (being a transcript of the decision as announced from the bench) is adopted as the Court's Findings of Fact and Conclusions of Law.