Hawthorn Environmental Preservation Association v. Coleman

No. 76-581 (417 F. Supp. 1091, 9 ERC 1523) (N.D. Ga. April 30, 1976)

ELR Digest

In a suit brought by neighboring landowners and an environmental association to enjoin construction of a highway bypass to be built with the partial assistance of federal funds, the court issues a preliminary injunction against further awards of contracts or construction pending preparation of an environmental impact statement and compliance with all federal land state requirements concerning the environmental, historical, and cultural impact of the road project.

Originally, both phases of the Newnan Bypass were to be constructed using federal funds, but changes in the federal-state funding mix for highway projects brought about by the Federal-Aid Highway Act of 1973, 23 U.S.C. §§ 101 et seq., meant that only state funds could be used. Subsequently, however, the state decided to apply for federal funds for Phase II. Plaintiffs brought suit, alleging that defendants U.S. Department of Transportation and state highway officials failed to make an environmental impact study as required under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., ELR 41009, ignored location regulations and hearing requirements, including state law requirements, and violated plaintiffs' constitutional rights to a clean environment.

For purposes of injunctive relief, plaintiffs abandoned allegations based on state law. On the constitutional issues, the court finds that plaintiffs' evidence fails to show that the defendants have chosen a course of conduct in conflict with the public interest such as to require constitutional protection of plaintiffs' rights. Although defendants acknowledged that they did not fulfill the hearing requirements, the implications of noncompliance were not fully briefed by the parties. Furthermore, defendants acknowledge that certain procedural requirements under federal highway law would be accomplished by a NEPA environmental impact review. The court is faced, therefore, with the issue of whether violation of these NEPA requirements justifies preliminary injunctive relief. Although acknowledging that the highway will have an impact on the environment, defendants disputed the applicability of federal laws to the state-funded portion, the standing of plaintiffs, and the general entitlement of plaintiffs to injunctive relief.

Regardless of economic injury, the court finds that plaintiffs have standing because of threatened harm to recreational and cultural interests, since the proposed highway would pass through woodlands near their residences and destroy archaelogically significant sites. Secondly, the court finds that the threatened environmental harm to plaintiffs would be irreparable and that defendants have failed to show that they would be harmed by any delay in construction. The most significant issue, however, is the question of the inapplicability of federal requirements to a project (Phase I) being funded without federal assistance. Relying heavily on prior highway project decisions, in particular, Named Individual Members of the San Antonio Conservation Soc'y v. Texas Highway Dep't, 496 F.2d 1017, 4 ELR 20643 (5th Cir. 1974); 446 F.2d 1013, 1 ELR 20379 (5th Cir. 1971), the court rejects defendants' notion that the two phases of the project may be separated to avoid federal environmental requirements and finds that the two phases are segments of a single overall federal project so as to require the application of unified environmental standards. Since plaintiffs will likely succeed on the merits of the claim that federal environmental considerations were ignored, they are entitled to preliminary injunctive relief.

The full text of this opinion is available from ELR (13 pp. $1.75, ELR Order No. C-1095).

Counsel for Plaintiffs
Steven E. Fanning
George C. Rosenzweig
Farmer, Fanning & Potterfield
32 South Court Square
Newnan GA 30263
(404) 252-3282

Counsel for Defendants
William D. Mallard, Asst. U.S. Attorney
428 U.S. Courthouse
56 Forsyth St., NW
Atlanta GA 30303
(404) 221-6954

Roland F. Matson, Asst. Attorney General
Law Dept., Judicial Bldg.
Atlanta GA 30334
(404) 656-4586

Daniel M. Bennie, Asst. Regional Counsel
Federal Highway Administration
Department of Transportation
Suite 200, 1720 Peachtree Rd., NW
Atlanta GA 30309
(404) 526-5040

Freeman, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]