National Wildlife Federation v. Tiemann

Civil Action No. 1318-73 (D.D.C. June 23, 1973)

In a settlement agreement, the Federal Highway Administration consents to reevaluate federal-aid highway projects which have received design approval to ascertain whether a NEPA impact statement must be prepared. FHWA division engineers in each state will prepare and publish lists of projects subject to reassessment and invite public comment before deciding whether an impact statement is required. The agreement does not apply to projects for which grading and drainage have previously been authorized. See Kennan, The Settlement Agreement in National Wildlife Federation v. Tiemann, 3 ELR 50085 (Aug. 1973); see also Comment, FHWA Agrees to Change NEPA Exemption Procedures, 3 ELR 10124.

Counsel for Plaintiff
Robert M. Kennan, Jr.
National Wildlife Federation
1412 16th St., N.W.
Washington, D.C. 20036

Counsel for Defendant
Irwin L. Schroeder
Department of Justice
Washington, D.C. 20530

[3 ELR 20688]

Green, J.

CONSENT JUDGMENT

The plaintiff, National Wildlife Federation, and the federal defendnts, Norbert T. Tiemann, Administrator of the Federal Highway Administration, and Claude S. Brinegar, Secretary of Transportation, having consulted by counsel and having determined that the best interests of all concerned would be served by an amicable resolution of this controversy, the Court having been fully advised in the premises and having concluded that the proposed settlement is in the public interest, it is hereby

Ordered that the complaint herein be dismissed with prejudice but without costs as to defendants Norbert T. Tiemann and Claude S. Brinegar on the following terms and conditions:

1. The FHWA (Federal Highway Administration) will not grant a "proposed FHWA authorization" (as defined below) without an FHWA NEPA (National Environmental Policy Act, 42 U.S.C. 4331 et seq.) reassessment (as described below) with respect to any Federal-aid highway section (a) for which a State HA (Highway Agency) requests a "proposed FHWA authorization" on or after January 1, 1974, (b) which is a "major Federal action significantly affecting the quality of the human environment," and (c) for which an environmental statement has not been filed with the Council on Environmental Quality.

2. Each FHWA division engineer will identify the "proposed FHWA authorizations" which the State HA intends to request from the FHWA between August 15, 1973, and January 1, 1974. "Proposed FHWA authorizations" are authorizations for advertisements for bid for work in "construction phases" as defined in paragraph 3 of PPM 21-12 and authorizations for the acquisition of right-of-way relating to federal-aid highway construction (a) which is a "major Federal action significantly affecting the quality of the human environment," and (b) for which no environmental statement is being or has been prepared pursuant to PPM 90-1, provided, however, that "proposed FHWA authorizations" do not include any FHWA approvals of projects which involve work only on locations where grading and drainage have previously been authorized. Nothing in this agreement shall prevent a Regional Federal Highway Administrator from giving an authorization for right-of-way acquisition in hardship cases or for protective buying in extraordinary circumstances, or from approving demolition when necessary for the public safety.

3. Each FHWA division engineer will identify and compile one or more lists of the "highway sections" (as defined in paragraphs 3.a and 6, PPM 90-1) with respect to which the "proposed FHWA authorizations" as defined in paragraph 2 above will be requested. These highway sections will be subject to the FHWA's NEPA reassessment.

4. As of August 15, 1973, no "proposed FHWA authorization" as defined in paragraph 2 above will be granted for any highway section which is subject to the FHWA's NEPA reassessment until the FHWA division engineer determines whether an environmental statement should be prepared and considered for the highway section.

5. The FHWA shall require each State HA to publish, in the largest daily newspaper of general circulation in the vicinity of each highway section which is subject to the FHWA's NEPA reassessment, at least one public notice which includes: (a) a list of highway sections which are subject to the FHWA's NEPA reassessment, describing their locations, termini, length, and proposed number of lanes; (b) the FHWA's criteria for NEPA reassessment (a copy of which are attached hereto as Exhibit A); and (c) an invitation for interested persons to submit comments to the FHWA division engineer relating FHWA's criteria for NEPA reassessment to any or all of the highway sections in the list within 30 days after publication. Each list will be mailed to NWF Resources Defense, 1412 16th Street, N.W., Washinton, D.C. 20036, by air mail special delivery as soon as possible after its compilation and, in any event, no later than the day after its publication. A copy of each publication will be mailed to NWF Resources Defense within 10 days after the publication.

6. Each State HA may submit written comments to the FHWA division engineer relating the FHWA's criteria for NEPA reassessment to any or all of the highway sections on each published list within 30 days after publication.

7. The FHWA division engineer will determine whether an environmental statement should be prepared and considered for each highway section which is subject to the FHWA's NEPA reassessment. Each such determination will be made using the FHWA's criteria for NEPA reassessment and will be in writing.On request, the division engineer will promptly furnish a copy of any such written determination to any person free of charge.

8. As soon as possible after the FHWA division engineer's determination, the FHWA shall require the State HA to publish in the largest daily newspaper of general circulation in the vicinity of each highway section which is subject to the FHWA's NEPA reassessment at least one public notice which includes: (a) a list of highway sections for which the FHWA division engineer's determination was made, describing their location, termini, length, and proposed number of lanes; (b) a statement that the FHWA division engineer has determined that preparation and consideration of an environmental statement is, or is not, required for the highway section; and (c) the address where any person may obtain copies of the FHWA division engineer's written determinations. A copy of each publication will be mailed to NWF Resources Defense within 10 days after publication.

9. No "proposed FHWA authorization" as defined in paragraph 2 above will be granted for any highway section for which the division engineer determines that an environmental statement should be prepared and considered until a final environmental statement for the highway section has been lodged with the Council on Environmental Quality for the time required by its Guidelines.

10. On or before August 31, 1973, each FHWA division engineer will furnish NWF a list of each approval of plans, specifications and estimates or approval of advertisements for bid granted between July 25, 1973, and August 15, 1973, relating to proposed federal-aid highway construction which received design approval from the FHWA before February 1, 1971, and for which no final environmental statement or negative declaration has been processed.

11. Copies of all FHWA directives and instructions relating to implementation of this Agreement will promptly be furnished to counsel for NWF. Counsel for NWF will be invited to attend and observe any workshops or instructional meetings arranged by FHWA's Washington office relating to implementation of this Agreement.

12. The FHWA will take the necessary steps to publish the terms of this Agreement in the Federal Register as soon as possible.

[3 ELR 20689]

EXHIBIT A

FHWA Criteria for NEPA Reassessment

An environmental statement shall be prepared and processed in accordance with PPM 90-1 for each highway section, which is subject to the FHWA's NEPA reassessment if, in the judgment of the division engineer, implementation of the National Nevironmental Policy Act to the fullest extent possible requires preparation and processing of an environmental statement. In making his judgment, the division engineer shall compare all of the steps already taken toward construction of the highway section will all of the steps yet to be taken and determine whether the highway section has reached the stage of completion where the costs of delaying the proposed highway clearly outweigh the benefits that might be derived from preparing and processing an environmental statement. When the division engineer has doubt whether or not an environmental statement should be prepared and processed, the statement should be prepared. In making his determination, the division engineer should consider: (a) any written reassessment prepared by the State highway agency pursuant to paragraph 5.c of PPM 90-1; (b) right-o-way acquisition, including demolition of improvements within the right-of-way; (c) number of families rehoused and those yet to be rehoused; (d) the extent to which the construction already completed involves an irretrievable commitment of natural resources; (e) user benefits to accrue from the proposed highway; (f) the extent to which the proposed highway is controversial; (g) available information on significant impacts of the proposed highway, including impacts on air and water quality, noise levels, and land use; (h) measures to minimize any adverse impacts of the proposed highway; and (i) any other relevant factors.