Civic Improvement Committee v. Volpe

No. C-C-72-31 (W.D.N.C. September 10, 1976)

The court requires defendants to supplement their environmental impact statement for a proposed highway with new noise studies. The earlier impact statement mistakenly assumed that the Charlotte City Code prohibited diesel trucks from using the highway, and thus did not fulfill the requirements of NEPA. The supplement must also analyze ways of reducing the noise impact of the road upon nearby recreational areas, including the possibility of slight revisions of the proposed route.

Counsel for Plaintiffs
Hugh G. Casey, Jr.
Casey, Daly & Bennett
700 Law Building
Charlotte NC 28202
(704) 376-7461

Counsel for Defendants
Douglas Martin, Asst. U.S. Attorney
U.S. Post Office Building
Charlotte NC 28202
(704) 372-7641

James Richmond, Special Deputy Attorney General
P.O. Box 25201
Raleigh NC 27611
(919) 829-3377

Charles Buckley, Asst. City Attorney
City Hall
Charlotte NC 28202
(704) 374-2254

[6 ELR 20797]

McMillan, J.:

ORDER

On August 31, 1976, the defendants filed the amendment to the environmental impact statement which was called for by the May 28, 1976 order; and on September 7, 1976, a final hearing was conducted to determine whether the appropriate federal environmental legislation had been obeyed, so that the case could be concluded.

Before the hearing it had been the court's assumption that the law's requirements would be now have been fully observed. The hearing raised considerable doubt as to the correctness of that hopeful assumption.

As elementary background information, the evidence shows (a) that the force of sound is measured in units called decibels; (b) that 70 decibels is the approximate level at which hearing loss begins; (c) that an increase of three decibels from a given level produces an approximate doubling of the intensity or impact of a particular noise; (d) that truck traffic produces noise of intensity variously measured at 82 to 87 decibels, measured from a point 50 feet removed from the edge of the pavement. If this evidence is correct, it appears that truck traffic with a noise level of 82 decibels has a noise impact about 16 times as great, and traffic including diesels, with a noise level of as much as 85 decibels, has an impact 32 times as great as the level of 70 decibels at which hearing loss begins. This is consistent with Encyclopaedia Britannica's reports on sound intensity, which indicate that a noise level of 90 decibels is approximately 100 times as intense as a noise level of 70 decibels (Encyclopaedia Britannica, 1954 Edition, Volume 1, page 124). [If there is substantial error in any of these observations, it can be assumed that the further studies herein directed will point it out.]

The noise evaluation in the amended environmental impact statement proceeds upon the erroneous assumption that diesel powered trucks would not be allowed on the highway. It also, apparently erroneously, assumed that trucks will comprise only 2 percent of the traffic on the road. Even upon these assumptions, a number of the locations along the route would sustain noise levels materially higher than the level at which hearing loss begins.

The assumption that diesel trucks will not use the highway is based upon an erroneous interpretation of § 20-26 of the Charlotte City Code. Unfortunately, the Code does not so provide. Such trucks would not under that ordinance be kept off the highway if the highway comprised a part of their route to "the nearest truck route" to or from their delivering or return destination. In fact, one portion of the belt loop (Woodlawn Road from South Boulevard to South Tryon Street) is already expressly designated as a truck route and it feeds directly into the area proposed for further development.

The assumption of the noise studies, that the diesel vehicles which produce the most noise would be kept off this highway, is thus untenable on the present administrative record.

There also appears to be a serious question as to the extent to which noise impact, alternate routes, and means of minimizing noise impact have been considered in those areas (Beal Street and Barclay Downs Road) where the route passes playgrounds and recreation areas.

Without reaching or deciding whether the case as to the recreation areas is governed in part by "§ 4(f)" of the National Transportation Act, 49 U.S.C. § 1653(f), or by the Federal-Aid-to-Highway Act of 1968, 23 U.S.C. § 138, it is apparent that this week's new information and new understanding of the administrative record should require the federal and state authorities to reconsider their impact statement, under § 4332 of the Environmental Protection Act [sic].

Environmental impact statements are not idle formalities but should be serious studies designed to inform all interested authorities rather than to support decisions already made. This is, in fact, their greatest usefulness; if the public servants charged with making decisions affecting the environment are fully informed about the damage that will necessarily flow from a particular road or other facility, they can make better political and engineering judgments than they can make if they are ignorant of the probable consequences.

If, for example, hundreds of diesel trucks a day are going to be free to use this road during the daylight hours, this makes a different civic and human problem than if the diesel trucks are going to leave it alone. If the highway noise is sufficiently loud to interfere with voice communication on a playing field or recreational area (which the evidence now shows), this should be made known to the planners.

The fact that noise and inconvenience to neighbors have not been required by law to be considered in previous generations of highway construction does not mean that the environmental laws should be soft-pedaled or disregarded. Specifically, the fact that I-77 divided and largely destroyed one Charlotte community and that the beautiful trees of Eastway Drive have gone with bulldozers is no argument that the same result must follow in other areas, or that such result in other areas today is lawful. Misery [6 ELR 20798] needs no unnecessary company.

The noise studies can be recomputed in light of the new information at the hearing within a few days. A serious study of possible methods to reduce noise in the vicinity of the parks and recreational areas can also be done in a short while, if the genuineness and the seriousness of the problem are admitted.

This court has no purpose and no intention to defeat or to delay unnecessarily whatever decision about this inner belt loop is made by the pertinent authorities. This court has the duty, however, to require that the action of those authorities be taken consistent with the law of the land.

As to the question of standing, first argued seriously at the latest hearing, the record shows that numerous members of the plaintiff group live on or in close proximity to the proposed highway; that they are immediately threatened by condemnation in law or by noise; that they are vigorously asserting their rights in person and through able counsel; that a "case or controversy" truly exists, and that these plaintiffs are entitled to pursue it.

IT IS THEREFORE ORDERED:

1. That on or before October 1, 1976, the defendants supplement their environmental impact statement by noise studies which incorporate the possibility that substantial numbers of diesel trucks will make use of the proposed inner belt loop. Measurements of actual noise on Woodlawn Road between Tryon Street and South Boulevard might be a useful part of such further study.

2. That as soon as possible defendants supplement the statement by an analysis of ways of reducing the noise impact of the road upon the recreational areas in question, including the possibility of slight revisions of the route, if need be, to accomplish this result.