Farwell v. Brinegar

No. 73-C-90 (W.D. Wis. July 26, 1973)

Construction of a proposed freeway segment is enjoined because the final environmental impact statement prepared by the Department of Transportation did not sufficiently evaluate the economic costs and environmental effects of the project and its alternatives. In addition, the EIS failed to consider the alternative of improving an existing highway to expressway status, rather than relocating the proposed freeway 2 miles away on a parallel course, or to analyze adequately the effects of the project on air pollution in the area. Regarding the scope of the EIS, the court finds that the larger interstate freeway project, of which this 21 mile segment is a part, is as yet insufficiently developed to provide the necessary nexus to require consideration of the larger proposal in the impact statement.

Counsel for Plaintiffs
James A. Olson
Lawton & Cates
Suite 703, Tenney Building
110 E. Main Street
Madison, Wisconsin 53703

Counsel for Defendants
John O. Olson U.S. Attorney
P.O. Box 112
Madison, Wisconsin 53701

Charles A. Bleck Asst. Attorney General
State Capitol
Madison, Wisconsin 53702

[3 ELR 20881]

Doyle, J.

This is a civil suit seeking injunctive and declaratory relief to restrain defendants from implementing the Final Environmental Impact Statement (EIS) for the Dodgeville-Mount Horeb Road, U.S. Highway 18 & 151, and from taking any further action in purchasing right of way, letting bids, or engaging in any construction or development of said proposed highway.

[3 ELR 20882]

Jurisdiction is alleged under 5 U.S.C. §§ 701-706 and 28 U.S.C. § 1331. The amount in controversy, exclusive of interest and costs, is alleged to exceed $10,000. The suit arises under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq (1970 Supp.) (hereinafter referred to as "NEPA"), the Environmental Quality Improvement Act of 1970, 42 U.S.C. § 4371 et seq (1970 Supp.) and the Administrative Procedure Act, 5 U.S.C. § 701 et seq (1970).

Plaintiffs have filed a motion for a preliminary injunction. For the purpose of this motion only, I find as fact those propositions contained in the section of this opinion entitled "Facts."

FACTS

Plaintiffs include landowners whose property will be taken for the proposed highway relocation and therefore will be directly affected by the project. Defendant Brinegar is Secretary of the United States Department of Transportation.DefendantClapp is Secretary of the Wisconsin Department of Transportation. Defendant Huber is Chairman of the Division of Highways for Wisconsin. Defendant Fiedler is the District Engineer for District #1 of the State of Wisconsin.

The proposed project would relocate and improve U.S. Highway 18-151 in Iowa and Dane Counties between Dodgeville and Mt. Horeb, a distance of approximately 21 miles. U.S. Highway 18-151 would be relocated less than two miles south of the present highway. Between Mt. Horeb and Dodgeville, U.S. Highway 18-151 would be upgraded to a Class 8 freeway, a four-lane divided highway with access only at interchanges. Within the Dodgeville area, U.S. Highway 18 would be upgraded to an expressway, a four-lane divided highway with at-grade intersections with public roads.

The present U.S. Highway 18-151 is one of the earliest transportation corridors in Wisconsin and has been known as "Military Ridge."¹ In close proximity is a corridor in the form of a railroad right of way constructed in the late 1800's and now owned by the Chicago and Northwestern Railway Company. U.S. Highway 18-151 presently serves as a principal arterial to all of southwestern Wisconsin. It passes through the communities of Dodgeville, Ridgeway, Barneveld, Blue Mounds and Mt. Horeb, joining numerous family farms and businesses and providing easy access to farmland along the route. Completion of the proposed highway will result in the creation of a third corridor through this area.

In 1963, the predecessor agency of the Wisconsin Department of Transportation prepared a plan (hereinafter referred to as the "1963 plan") for a divided highway with limited access between Dodgeville and Mt. Horeb which would not substantially deviate from the alignment of the present U.S. Highway 18-151. The 1963 plan envisioned relocation only where bypasses were needed (Ridgeway, Barneveld, and Blue Mounds) or where conditions along the existing highway precluded improvement. The final Environmental Impact Statement (hereinafter referred to as the final "EIS") does not mention the 1963 plan by name nor discuss the proposal that was embodied in said plan.

In 1966, the Wisconsin State Highway Commission adopted the "1990 Plan." Said plan designated the route connecting Dubuque, Iowa, and Madison, Wisconsin, including the portion of U.S. Highway 18-151 involved in this lawsuit, as a principal arterial, the highest functional classification. A principal arterial is ordinarily developed as a freeway. Other alternatives were considered but rejected in the 1990 plan, including the designation of the route between Madison and Dubuque as a primary arterial, the second highest functional classification. A primary arterial is ordinarily developed as an expressway, rather than as a freeway. The present record does not reveal whether the 1990 plan specified a proposed location for the upgraded route between Mt. Horeb and Dodgeville. The final EIS mentions that U.S. 18-151 has been classified as a "principal arterial" between Mt. Horeb and Dodgeville, but does not disclose the rejected alternative designation of said route as a "primary arterial." See Final Environmental Impact Statement, p. 8.

A design public hearing was held on the proposed relocated freeway on February 16, 1971. A draft EIS was prepared and notice of public availability was published on July 22, 1971. Although the draft EIS remained available for public comment until August 27, 1971, none of the plaintiffs submitted comments on said draft. The final EIS was completed November 19, 1971, and became available for public inspection on December 6, 1971. On December 30, 1971, the Department of Transportation forwarded the final EIS to the Council on Environmental Quality (hereinafter referred to as the "CEQ"). The CEQ did not comment on the EIS during the 30-day period in which it was available to the CEQ for its comments, nor has there been any subsequent comment by the CEQ. Design approval of the project was given by the Federal Highway Administration (hereinafter referred to as the "FHWA") on March 6, 1972, and notice of said approval was published March 23, 1972. Defendants are presently engaged in activity relating to the construction of the proposed project; have acquired and are acquiring the right of way for the relocation; and as of May 30, 1973, were letting contracts for said project.

The final EIS discusses briefly (within one page) three alternatives to the proposed highway: (1) do nothing; (2) upgrade the highway to freeway standards on its present location; and (3) within the Dodgeville area, adopt an alternative location which would retain the present Highway 18 route through the commercial area.

The first alternative is rejected because:

"[T]he existing facility cannot meet the needs of the present and future. The vertical and horizontal alignments are very inadequate and create very hazardous situations . . . . Testimony from the corridor hearing stated that '50 percent of Iowa County's accidents take place on this road'." Final Environmental Impact Statement, p. 12.

The second alternative is discarded because:

"After careful study and consideration of the existing facility, it was determined that updating the present facility on its present location was not feasible because of topographic, safety, and economic features. The present road has generally substandard geometrics and has development adjacent to the roadway. Any upgrading to freeway standards would cause more disturbance to adjacent development including living units.

As part of the continuing program to implement and complete the 1990 State Highway Plan, providing a facility to freeway standards in the present corridor, as approved by the Federal Highway Administration, was considered to be desirable. The geographic corridor is unique in that many location controls do exist; there is little latitude for alternative locations. Features affecting this include: the extremely rugged terrain to the north and south; the existing highway network; the Chicago and Northwestern Railway to the north; the villages of Ridgeway, Barneveld, Dodgeville, Blue Mounds; Blue Mounds State Park and Governor Dodge State Park.

* * *

While a specific estimate has not been prepared for the alternative of upgrading the present road, it is apparent it would be more costly. It has been the experience of the Division of Highways when an existing highway, such as Highway 151, is upgraded to freeway standards, the cost is greater than on a new location. This is due to additional costs of disturbing more existing development, displacing more living units and restoring access all along the road. Avoiding most of these disturbances and displacements with the recommended design would be a distinct advantage even if there were nocost advantage." Final Environmental Impact Statement, p. 12, 18-19.

Finally, the following explanation of the need for a new route within the Dodgeville area was provided:

"To retain this alignment [present Highway 18] would require widening the present right of way and removing most of the businesses along the route. It would be difficult to provide suitable grades and sight distance at the intersection [3 ELR 20883] with Highway 23. The railroad places further restrictions on the location and design in the corridor. The alternate also proposed moving the 151 freeway closer to the urban development of Dodgeville where more problems would result." Final Environmental Impact Statement, p. 12.

The final EIS is ambiguous about whether the rejected alternative of upgrading to freeway standards consisted of upgrading U.S. 18-151 on its present alignment for the entire segment of highway between Dodgeville and Mt. Horeb or upgrading following the present alignment where possible but bypassing the communities of Mt. Horeb, Blue Mounds, Barneveld, and Ridgeway.

I find that the final EIS does not disclose the alternatives of upgrading to less than freeway standards either: (1) following the present alignment for the entire distance between Dodgeville and Mt. Horeb; or (2) following the present alignment where possible but bypassing the communities of Mt. Horeb, Blue Mounds, Barneveld, and Ridgeway.

Only 6 miles of the existing U.S. Highway 18-151 could be utilized if the proposed highway followed the present alignment where possible but bypassed the communities of Mt. Horeb, Blue Mounds, Barneveld, and Ridgeway. Such a route along the present alignment would be approximately 2.7 miles longer than the proposed relocated freeway. If upgraded to freeway standards, said route along the present alignment would not result in the taking of any less land than that necessary for the proposed relocated freeway. If upgraded only to expressway standards, approximately 170 fewer acres would be needed than for the proposed relocated freeway. If upgraded only to a low-type expressway with private entrances, approximately 195 fewer acres would be required.

In the opinion of defendant Fiedler, it would not be feasible to attempt to construct either a freeway or an expressway on the present alignment of U.S. Highway 18-151.

The proposed 21 mile project which is the subject matter of this lawsuit is a segment of a highway that will eventually connect the city of Dubuque, Iowa, with Manitowoc, Wisconsin. The only description in the final EIS about the relationship of the project to the future development of other highways is as follows:

"The purpose of this project is to provide a safe and efficient transportation system between Dodgeville and Mt. Horeb which will ultimately fit in with later improvement of Highways 18 and 151 beyond the limits of the project. The existing highway . . . cannot meet these requirements.

It is essential that this route remain operative to provide transportation services for southwestern Wisconsin, as it is the only route from the northeast (Madison, Fox River Valley and Manitowoc) to Prairie du Chien, Dubuque, and Central Iowa." Final Environmental Impact Statement, pp. 8-9.

The proposed project will require about 1,000 acres of new right of way. The total estimated cost is 27,089,000. I take judicial notice that the city of Dodgeville, and the villages of Mt. Horeb, Barneveld, Ridgeway, and BlueMounds each has a population of less than 5,000 persons.

The Study Report for the corridor location of U.S. 151, Dodgeville-Mt. Horeb Road, prepared pursuant to Policy and Procedure Memorandum 20-8, and submitted to defendant Paddock, Division Engineer, on June 29, 1970, states in pertinent part (pp. 2-3):

Since the function of this new [improved and relocated] facility is not to serve local traffic the present highway should be retained for this purpose.

* * *

Alternative Alignments

General

The geographic corridor considered by this study is unique in that while many location controls do exist there is very little latitude for alternative corridor locations. The reason for this is the relatively narrow area, suitable for highway location, available and the existing development within this area.

The controls which effect the location of a highway corridor are: farming operations; the extremely rugged terrain in the north and south, which generally trends transverse to this corridor; the existing highway network, which must be preserved and integrated; the Chicago and Northwestern Railroad; the villages of Ridgeway, Barneveld, and Blue Mounds; and Blue Mounds and Governor Dodge State Parks, all of which must be served by a new highway.

In addition to these physical controls consideration must also be given to compatibility with local and areawide planning objectives. Westerly from Dodgeville the route of U.S. 18 is classified on the State Highway Plan as a Primary Arterial and on the Freeway-Expressway Plan as an Expressway. In the Dodgeville area the corridor location . . . must not only be in accordance with local urban transportation planning but must also provide for an adequate connection from this planned new freeway to a future expressway to the west.

The final EIS does not contain a "cost benefit analysis."

Throughout the final EIS, references are made to the need for a safe transportation system. Final Environmental Impact Statement pp. 7, 9-10, 12, 19. The final EIS does not provide any accident statistics for either the proposed project or the alternatives discussed. According to a study prepared prior to the 1963 plan, the accident rate on the Dodgeville-Mt. Horeb Road "was below the average for the State Trunk System." Current statistics reveal that the safety record on the present highway is comparable to that of other highways in the State Trunk System. The final EIS does not discuss whether the proposed project will sever farmland, necessitating greater use of the highway by hazardous slow-moving farm equipment. The final EIS does state:

"The construction and completion of the new facility will alleviate many hazards that now exist. The freeway will be constructed with improved alignment and high safety standards, thereby insuring that public travel and the environment of the traveling public will be safer.

The bypassing of Dodgeville, Ridgeway, and Barneveld will eliminate the traffic hazard that now exists when a major arterial (Highway 18 and 151) traverses the central business and residential districts of these communities. The business districts of these towns will be enhanced as through traffic will not become part of the local traffic, thus creating a business district conducive to safe shopping.

The safety of area school children will be improved as school buses will not have to travel on a heavily traveled arterial. Dangerous school crossings in Barneveld and Ridgeway will also be improved because through traffic will be diverted to the freeway." Final Environmental Impact Statement pp. 9-10.

The Environmental Protection Agency, by letter dated August 30, 1971, suggested that the draft EIS should be supplemented with information in the following areas:

1.Project Description. Right-of-way requirements, highway design parameters, and construction costs are missing. Agricultural, woodland and pasture land acreage should be specified.

2. Alternatives. Each alternative should be quantified as much as possible. Comparative cost estimates should be given.

3. Steps of Minimize Harm. No mention is made of the proposed disposal of quantities of trees and landscape debris that will be generated. It is recommended that these wastes not be burned, but mulched and returned to the soil.

On-site batching plants should have emission control devides to minimize air pollution.

Final Environmental Impact Statement, Appendix

I find that the information sought with respect to the project [3 ELR 20884] description and the steps to minimize harm was incorporated into the final EIS. However, with respect to recommendation 2, the final EIS states that although a specific estimate of the cost of upgrading the present road has not been prepared, "it is apparent" that said alternative would be more costly than relocating the road. Final Environmental Impact Statement, p. 18.

The final EIS contains a brief discussion (usually one paragraph and without statistics) of the impact of the project on noise, air pollution, trout streams, wildlife, displacements of people, state parks, aesthetics, curtailment of farming use of agricultural, wood, and pasture land, and erosion. The final EIS does not discuss the effect of the proposed freeway on the restoration of old buildings in the area, on Indian relics, on deer migration, on rate of use of state parks, on agricultural productivity, and on local property tax revenues. It does not discuss the effect of a potential fuel shortage on traffic projections.

Of the approximate 1000 acres of land to be converted to highway purposes in the proposed new location, about 65% is presently cropland, 25% pasture land, and 10% wooded land. The conversion of these lands will significantly affect the quality of the human environment. The proposed project is major in size and scope. Defendants threaten to proceed unless enjoined. The resulting consequences to the environment will be irreparable.

OPINION

Plaintiffs contend that defendants should be enjoined because the final EIS is inadequate. Plaintiffs advance the following theories of inadequacy: (1) that the final EIS fails adequately to discuss alternatives and ignores one altogether; (2) that the project considered in the final EIS is only a small portion of a larger project, requiring interested agencies to make piecemeal decisions; (3) that the final EIS is misleading with respect to safety; (5) that the final EIS fails to incorporate interagency recommendations; and (6) that the final EIS does not contain sufficient detail on all possible significant effects of the project on the environment.

I have held in earlier cases that although a court may review a statement filed pursuant to § 4332(2)(C) to determine whether it complies with the procedural requirementsof NEPA, it should not substitute its judgment regarding the wisdom, advisability, and benefits of undertaking or not undertaking a particular project. Ford v. Train, Case No. 73-C-83 (W.D. Wis. June 15, 1973); Sierra Club v. Froehlke, Case No. 72-C-110 (W.D. Wis. June 2, 1972). Section 102 of NEPA provides in pertinent part:

§ 4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall —

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance amd enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

* * *

(D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources . . . . 42 U.S.C. § 4332.

NEPA requires that prior to every "major Federal action," "a rather finely tuned and 'systematic' balancing analysis" must be undertaken. Calvert Cliff's Coord Com. v. U.S. A.E. Com'n, 449 F.2d 1109, 1113 (D.C. Cir. 1971). Sections C(iii) and D were intended to ensure that agency decision-makers, the public, other interested governmental agencies, the CEQ, the President and the Congress have before them "all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance." Calvert Cliffs, supra at 1114. This procedure was formulated to ensure that an intelligent decision is reached, that interested parties are advised in advance of planned major federal action, that evidence is available in the form of the EIS as to whether the prescribed decisionmaking process has been followed, and that those removed from the initial process are rendered capable of evaluating and balancing the factors independently. Calvert Cliffs, supra at 1114. The CEQ Guidelines, 6(IV), 36 Fed. Reg. 7724, 7725 (1971) provide that "[a] rigorous exploration and objective evaluation actions that might avoid some or all of the adverse environmental effects is essential."

Plaintiffs' first contention: that EIS fails adequately to describe one alternative and wholly omits another

I conclude that plaintiffs' first contention is "procedural" and within the scope of this court's review. Plaintiffs do not request a judicial reassessment or rebalancing of the economic, environmental and other factors involved in the decision whether to undertake the proposed project. Instead, plaintiffs urge that the defendants have failed to comply with NEPA's procedure by failing adequately to set forth one alternative to the proposed action and by failing to discuss adequately the environmental impacts of other alternatives. See Com. for Nuclear Responsibility, Inc. v. Seaborg, 463 F.2d 783, 786-787 (D.C. Cir. 1971).

The courts have had difficulty in deciding when the omission of an alternative renders an EIS inadequate, and, when alternatives are set forth, in determining the required minimal scope of the discussion of the environmental advantages and disadvantages of the alternatives. Nonetheless certain principles have emerged. Agencies must consider alternatives to "the fullest extent possible." Only alternatives which are "reasonably available" need be considered, not those which are "speculative and remote." The search for alternatives need not be "exhaustive." "It is not necessary that a particular alternative offer a complete solution to all technical, economic and environmental considerations, if a portion of the original purpose of the project, or its reasonably logical subcomponent, may be accomplished by other means." Sierra Club v. Froehlke, 3 ELR 20248 (S.D. Tex Feb. 16, 1973). It is not sufficient to make "passing mention of possible alternatives . . . in such a conclusory and uninformative manner that if affords no basis for a comparison of the problems involved with the proposed project and the difficulties involved in the alternatives." Monroe County Conservation Council v. Volpe, 3 ELR 20006, 20007 (2nd Cir. 1972). However, the extent of [3 ELR 20885] detail and technical data required in each case is necessarily related to the complexity of the environmental problems created by the project. Iowa Citizens v. Volpe, 3 ELR 20013 (S.D. Iowa 1972).

The defendants argue that it is necessary for the EIS only to identify possible alternatives, not to discuss the environmental impact of these alternatives. Defendants emphasize that § 102(2)(C) of NEPA provides that the EIS must include "the environmental impact of the proposed action," 42 U.S.C. § 4332(2)(C)(i), and the "alternatives to the proposed action," 42 U.S.C. § 4332(2)(C)(iii), but that the statute does not specifically provide that the EIS must describe and evaluate the environmental impact of said alternatives. Section 102(2)(D) provides that the federal agencies shall "study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources," 42 U.S.C. § 4332(2)(D). Defendants construe said section as requiring a description of the environmental impact of alternatives only when the reviewing agencies (which have jurisdiction by law or special expertise) object to the proposed action and such objection remains unresolved.

I cannot accept defendants' proffered construction of NEPA. First, I note that defendants provide no supporting legislative authority. The only case cited, Conservation Council of North Carolina v. Froehlke, 340 F. Supp. 222 (MD N.C. 1972), does not adopt said construction but instead reasons that NEPA requires a "meaningful reference" to alternatives. Conservation Council of N. Carol., supra at 227-28. More to the point, I conclude that the purposes underlying the EIS procedure, set forth supra, could not be effectuated, should I adopt defendants' construction. Natural Resources Defense Council v. Morton, 458 F.2d 827, 834 (D.C. Cir. 1971).

Plaintiffs contend that the final EIS on the Dodgeville-Mt. Horeb highway project:

(a) mentioned, but failed adequately to describe the environmental impact of, one alternative: to upgrade to freeway standards the present highway generally along its present alignment (with or without bypasses at Mt. Horeb, Blue Mounds, Barneveld, and Ridgeway); and

(b) failed even to disclose another alternative: the 1963 plan of the Wisconsin Department of Transportation to upgrade only to expressway standards the present highway following generally along its present alignment (with or without bypasses at Mt. Horeb, Blue Mounds, Barneveld, and Ridgeway).

Defendants respond that the description of (a) in the final EIS is adequate; and that a separate discussion of (b) was unnecessary because virtually the same economic, technical and environmental factors are present in (a) and (b).

Adequacy or inadequacy of EIS description of alternative of upgrading present highway to freeway standards

With respects to alternative (a), upgrading to freeway standards the present highway generally along its present alignment (with or without bypasses), the final EIS states that this alternative was rejected because of "topographic, safety, and economic features" (p. 12).

The topographical problems are not elaborated, unless a reference lurks in the statement that few alternative locations are available for a relocated highway because of the rugged terrain.

Concerning safety, the EIS states that hazards will be reduced by bypassing the villages and also by an improved alignment in the new location. The option to bypass the villages appears to be a safety factor common to a relocation of the highway and to upgrading the present highway generally along its present alignment. There is no detailed discussion of the comparative safety factors involved in using the proposed new alignment as contrasted with using the present alignment.

As to economic features, the final EIS states that because of development adjacent to the present US 18-151, upgrading would create "more disturbance." Although no specific cost estimate of alternatives has been prepared, the agencies conclude on the basis of past experience that upgrading as opposed to relocating would be more costly. The "additional costs of disturbing more existing development, displacing more living units, and restoring access all along the road" are noted (pp. 12, 18).The major unavoidable adverse environmental impact of the proposed project is identified in the EIS as the conversion to highway of approximately 1000 acres of new right of way, composed of about 65% cropland, 25% pasture land and 10% wooded land. The final EIS does not document the quality and quantity of land which would be required to upgrade the present highway to freeway standards. Therefore although the final EIS reveals that the economic costs of upgrading to freeway status along the present alignment are to some undisclosed extent greater than the economic costs of relocation, the EIS provides no basis for balancing said increased economic costs against the possible environmental advantages of upgrading at the present location.

Upgrading to freeway standards the present highway generally along its present alignment, with bypasses at the villages, is clearly a "possible" alternative, neither "remote" nor "speculative." I find that the conclusory and uninformative references in the final EIS to this alternative afford no basis for even a superficial comparison of the difficulties inherent in this alternative with those inherent in the proposed relocation project. I conclude that the final EIS failed in this respect to comply with the Congressional command.

The difficult question presented by the present motion is whether defendants' failure to comply with the statute requires that injunctive relief be granted. I have found that in the absence of injunctive relief, significant and irreparable harm to the environment will ensue. However, the effect of an injunction, if it should withstand appellate review, would be to require the preparation and circulation of an adequate EIS. In a modified EIS, defendants can be expected to set forth that the by-passes of the several villages are essential to any of the alternatives; that if the villages are by-passed, only six miles of the existing highway alignment could be utilized in any event; that the route along the present alignment would exceed the length of the highway in the proposed new location by 2.7-2.8 miles; and that the additional lands required to upgrade the highway to freeway standards on its present alignment would be no less than those required in the proposed new location. These are points which the defendants have developed in this lawsuit in this court. Had they been included in the EIS, or if they were to be included in an amended EIS which might result from this lawsuit, obviously they would support importantly defendants' contention that the decision to choose a new alignment for the freeway was not arbitrary and unreasonable. I am hesitant to grant injunctive relief, the effect of which is only to delay the carrying out of a decision, once made and likely to be made again.

On the other hand, if the court is to give effect to the Congressional mandate that certain procedures, including the preparation and circulation of an adequate EIS, must precede decisions on major federal actions with significant environmental consequences, it cannot permit substantial inadequacies in an EIS to be corrected by testimony or affidavits in the lawsuit. As defendant officials in environmental lawsuits are fond of contending, it is not this court which must be persuaded that the choice of a new location for a highway was wise or unwise.

Congress envisaged that that decision was to be made in a non-judicial forum, a forum in which the participants are interested governmental agencies, federal, state, and local; economic interest groups; environmental protection groups; individual citizens; and so on. But the key feature of NEPA is that the responsible federal agency involved is absolutely bound to insure that these participants are adequately informed early enough to permit them the opportunity for intelligent and influential participation. I am bound to say that the EIS challenged in this lawsuit is a feeble and inadequate response to this paramount Congressional purpose.I have concluded that this Congressional purpose will not be will served by withholding preliminary injunctive relief in such a case, because the plaintiffs do enjoy a reasonably good chance to prevail in their contention that the EIS fails adequately to describe the implications, environmental and otherwise, of locating the freeway generally along the present alignment.

Omission of alternative of upgrading present highway only to expressway standards

[3 ELR 20886]

I am not persuaded by the defendants' contention that the final EIS need not even refer to the alternative of upgrading US 18-151 to something less than freeway status, generally along its present alignment. The fact that a plan was developed in 1963 to upgrade this highway to an expressway (rather than a freeway) is some evidence that this alternative is "possible" and not "speculative" or "remote." Defendant Fiedler's affidavit concedes that upgrading to a high-type expressway with no private entrances and service roads, would require 170 fewer additional acres than would the recommended relocated freeway; and also that upgrading the present highway to a low-type expressway with private entrances would result in the taking of approximately 195 less acres. It may be determined ultimately that safety and technical considerations outweigh any environmental benefits which would be derived from constructing an expressway as contrasted to a freeway. I conclude that plaintiffs have a substantial probability of success on the merits of their contention that in order for defendants to comply with the "full disclosure" requirements of NEPA, the alternative of upgrading US 18-151 to expressway standards should have been discussed. Were this omission the only significant defect in the EIS, I would be inclined to withhold injunctive relief, but it strengthens my conclusion that the failure adequately to describe the construction of a freeway in the present location warrants such relief.

Plaintiffs' second contention: that the EIS is inadequate because the scope of the project examined is nt sufficiently comprehensive

The majority of courts confronted with agency attempts to divide projects into artificial segments and then to provide a separate EIS for each of said segments have held that such statements are inadequate on the ground that piecemeal decisionmaking would frustrate the underlying policies of NEPA. See Sierra Club v. Froehlke, 3 ELR 20248, 20259 (S.D. Tex Feb. 16, 1973) and cases cited therein.

Section 6 of the FHWA guidelines provides that:

The highway section included in an environmental statement should be as long as practicable to permit consideration of environmental matters on a broad scope. Piecemealing proposed highway improvements in separate environmental statements should be avoided. If possible, the highway section should be of substantial length that would normally be included in a multi-year highway improvement program. FHWA Guidelines, Policy and Procedure Memorandum 90-1, 31 Fed Reg 20809, 21810 (1972).

Difficulties arise in determining the scope of the EIS where the project under attack has several purposes. One court has succinctly stated the appropriate analysis as follows:

"[If] only one of several project purposes was related to the larger project and it was relatively insignificant when compared to the purposes serving local needs, equity would not favor granting an injunction as to the local project pending completion of an EIS as to the larger, minimally associated project . . . . Keeping in mind the basic purpose of NEPA to avoid piecemeal environmental evaluations, a practical test to determine at what point a multiple purpose project becomes sufficiently associated with a major project so as to be controlled by it basically turns on the nature and the extent of the nexus between the two projects. If in any given relationship the nexus between a major project and a smaller multiple purpose project is exceedingly thin and attenuated, it would appear to be unreasonable and impracticable to enjoin what is substantially a local project. Similarly, if the major project is not yet sufficiently distinct or comprehensive, the nexus might be insufficient as well." Sierra Club v. Froehlke, supra at 20260. See generally Named Ind Mem of San Antonio Con Soc v. Tex Hwy Dept, 446 F.2d 1013, 1022-1024 (5th Cir. 1971); Thompson v. Fugate, 347 F. Supp. 120, 123 (E.D. Va 1972); Committee to Stop Route 7 v. Volpe, 346 F. Supp. 731 (D. Conn 1972).

Here I must examine the nexus between the smaller project of improving the 21 mile segment between Mt. Horeb and Dodgeville and the larger project of completing the arterial between Manitowoc, Wisconsin, and Dubuque, Iowa. With the exception of the statement in the final EIS that the improved highway between Dodgeville and Mt. Horeb "will ultimately fit in with later improvement of Highways 18 and 151 beyond the limits of the project," plaintiffs have not introduced any evidence describing the "larger project" or indicating when said proposal is likely to be implemented. Defendant Fiedler's affidavit avers only "that this construction is a part or segment of a highway that is to eventually connect the city of Dubuque, Iowa, with Manitowoc, Wisconsin."

Plaintiffs argue that it is obvious from the $27.5 million cost of this project and from the small size of the communities connected by the proposed highway that future development of connecting highways is not speculative and that the project at bar is without important local purposes independent of the longer highway proposal. I am not persuaded that I can make such findings on the present record. Instead, for the purpose of this motion only, I find that the alleged major project is not yet sufficiently certain or developed to enable me to conclude that the nexus between the proposed 21 mile section and the larger project is sufficient to enjoin the present construction pending preparation of an EIS on the larger proposal.

Plaintiffs' third contention: that in a cost-benefit analysis, if one were included in the EIS, the costs would outweigh the benefits

Plaintiffs do not define how they define a "cost-benefit analysis." In any case, NEPA requires only that the EIS discuss and balance the environmental costs and benefits of the proposed action and its alternatives. Furthermore, I note that this court cannot reverse a substantive decision on the merits unless plaintiffs demonstrate that the actual balance of costs and benefits that was struck by the agency was clearly arbitrary and capricious, providing insufficient weight to environmental values. Calvert Cliffs, supra at 1115. At this point in the proceedings, where I have found that the discussion of the costs and benefits of alternatives is inadequate, it would be inappropriate to attempt even the minimal substantive review within my authority.

Plaintiffs' fourth contention: that the EIS is inadequate because it is misleading with respect to safety

Plaintiffs urge that the EIS is misleading because it omits past and current accident statistics which indicate that the accident rate on present US 18-151 is below the average for the State Trunk System. Plaintiffs further contend that the government did not consider the safety problems created by slow-moving farm equipment traveling long distances. Finally, plaintiffs suggest that a projected accident rate should be provided for each alternative considered.

I conclude that plaintiffs do not have a sufficient probability of success on the merits of establishing that the failure to include accident statistics is misleading. Furthermore, I note that plaintiffs have introduced no evidence to support their contention that the agencies failed to consider slow-moving agricultural equipment prior to concluding that a relocated freeway would promote safety. Finally, it is not necessary, although it would be advisable, for the EIS at bar to contain accident rate statistics. General statements about the comparative projected safety records of the alternatives and the proposal should be sufficient to satisfy NEPA.

Plaintiffs' fifth contention: that the EIS is inadequate because it fails to incorporate interagency recommendations

After comparing the draft and final EIS, I find that the only EPA recommendation not incorporated into the final EIS is the suggestion that the EIS contain a quantified discussion of each alternative, including comparative cost estimates. The failure of the EIS to discuss adequately the costs and benefits of alternatives has been discussed above.

Plaintiffs' sixth contention: that the final EIS is not sufficiently detailed

With respect to each "possible significant effect" of the challenged project on the environment, I must ascertain whether the statement in the final EIS is sufficiently detailed to enable the [3 ELR 20887] public, the Congress, the President, the reviewing agencies, and the courts adequately to perform their roles in the procedure established by NEPA. See Sierra Club v. Froehlke, supra at 20264; EDF v. Corps of Engineers, 325 F. Supp. 749, 759 (E.D. Ark 1971).

Plaintiffs note that the EIS ignores the effect of the freeway on the cultural and historical value of the area. I have found that the final EIS does not consider said effect. Plaintiffs suggest in their brief that the area contains numerous Indian arrowheads and relics. Said factual contention is not supported by the record. Plaintiffs urge that old farmhouses will have to be destroyed and that restoration of said buildings will be halted. According to the final EIS, only four occupied and four unoccupied buildings will be affected. In the absence of the introduction of any further evidence about the historical and cultural value of said specific structures, I conclude that plaintiffs do not have a substantial probability of success in establishing that the EIS is deficient in this respect.

Plaintiffs contend that the description of the effect on the proposed freeway on air pollution is inadequate. The final EIS states:

With the gently rolling grades and operational features of a freeway, constant cruising speeds can be attained. Thus the pollution effects from internal combustion engines will be less than if the same traffic is allowed to operate on the existing highway with steeper grades, variable speed restrictions and stop and go conditions.

In addition, legislative and technical developments may be expected to decrease the amounts of allowable noxious emissions from vehicles. Final Environmental Impact Statement, p. 9.

Plaintiffs properly note that the inadequacy of this statement stems from the absence of any discussion of whether an improved highway will carry a greater volume of traffic generating increased air pollution despite the advantages derived from constant cruising speeds. I conclude that plaintiffs have a substantial probability of success on the merits with respect to the inadequacy of this section of the EIS. Again, standing alone, I would be inclined to regard this inadequacy as insufficient to warrant injunctive relief, but it stregthens my conclusion that other inadequacies are sufficient to warrant it.

Plaintiffs urge that the EIS fails to describe the effect of the proposed freeway on the recent migration of deer into the area. I have found that there is no discussion of deer migration in the final EIS. However, plaintiffs have submitted no evidence in support of their factual contention and consequently I couclude that plaintiffs do not have a substantial probability of success on the merits of this contention.

Plaintiffs contend that the EIS does not detail the need to improve access to recreational facilities, failing to state that most recreational facilities in this area are presently overused. The final EIS states: "Improved access [to Governor Dodge St. Park and Blue Mounds State Park] will enable more people to take advantage of the natural scenic beauty and recreational facilities of south western Wisconsin." Final Environmental Impact Statement, p. 11. Because plaintiffs have introduced no evidence to support this contention that said parks are overcrowded, I conclude that plaintiffs do not have a sufficient probability of success on the merits of this contention.

Plaintiffs argue that the EIS is defective because the section containing traffic projections does not reveal whether said statistics were adjusted to account for the fuel shortage. The EIS does not indicate whether the statistics are so adjusted. However, because plaintiffs have failed to introduce either evidence of such a fuel shortage or evidence about the effect of a fuel shortage on traffic projections, I conclude that they do not have a sufficient probability of success on the merits of this contention. Plaintiffs further urge that the final EIS should have explained why a freeway is needed to replace US 18-151 while other roads with the same or greater traffic volume projections are not being upgraded or relocate. Plaintiffs have not introduced any factual evidence to support this contention. I further note that the final EIS does explain the need for a freeway through this corridor which links northeastern and southwestern Wisconsin. Final Environmental Impact Statement, p. 7-8.

Plaintiffs contend that the final EIS should discuss in detail the effect of the proposed freeway on agricultural productivity. The EIS states that approximately 65% of the 1000 acres needed for the project are agricultural. On the present record, I conclude that said statement is sufficiently detailed.² Finally, I reject plaintiffs' contention that the final EIS must evaluate the effect of the proposed highway on local property taxes.

I reject defendants' contention that this suit is barred by laches.

Accordingly, on the basis of the entire record herein and for the reasons stated above, IT IS HEREBY ORDERED THAT, until further order of the court, the defendants, their officers, employees, agents, servants, and all other persons in active participation with said defendants, are enjoined from purchasing right of way, letting bids, or engaging in any and all construction or development in the US 18-151 construction project from Dodgeville to Mt. Horeb, Wisconsin.

1. In 1836 a military highway was constructed connecting Ft. Crawford in Prairie du Chien with Ft. Howard at Green Bay. The present highway follows the same alignment.

2. However, if the final EIS were to discuss two alternative routes, each requiring the same number of acres of agricultural land and otherwise having an identical environmental impact, in order to ensure "full disclosure," it might be necessary for the final EIS to note the comparative productivity of the agricultural land.