Smeltzer v. Adams

No. 77-3011 (N.D. Iowa January 30, 1978)

The court issues declaratory and injunctive relief restraining further construction on a 21-mile segment of proposed Interstate Highway 520, ruling that plaintiffs are entitled to summary judgment on their claim that the environmental impact statement (EIS) prepared for the project is inadequate under the National Environmental Policy Act (NEPA). Foremost among the EIS's deficiencies is that it views the 21-mile segment as an independent project rather than as part of the integrated 298-mile highway of which it is a component, contrary to the directives of the guidelines of the Council on Environmental Quality, the regulations of the Federal Highway Administration, and the comments on the draft EIS submitted by the Environmental Protection Agency and the Department of the Interior. The EIS is also fatally defective for failure to identify and discuss fully the secondary impacts of the segment, most notably the extent to which it will attract commercial development and the ecological effects of salt compounds and other de-icing agents which will be applied to the road surface. In addition, the statement is critically short on discussion of alternatives to the highway, particularly the "do-nothing" alternative, which was dismissed in one sentence. Several alternatives are improperly rejected on the basis of "previous studies," the source of which was not disclosed. In sum, the EIS appears to be a summary, post-hoc justification rather than an environmental decision document, and it must be revised prior to continuation of the project.

Counsel for Plaintiffs
Bruce J. Terris, Edward H. Comer
1526 18th St. NW, Washington DC 20036
(202) 332-1882

Robert W. Brinton
120 Central Ave. West, Clarion IA 50525
(515) 532-2851

Counsel for Defendants
Richard C. Turner, Attorney General; Asher E. Schroeder, Special Ass't Attorney General
State House, Des Moines IA 50319
(515) 281-5164

E. Lawrence Hannaway, Eric S. Gould
Land & Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2129

[8 ELR 20221]

McManus, J.:

This matter is before the court on resisted cross motions for summary judgment filed October 19, 1977, by plaintiffs and December 5, 1977, by defendants. Plaintiffs' motion granted.

In this action plaintiffs — environmental groups, farmers, and other residents of Fort Dodge, Iowa, and its environs — seek declaratory and injunctive relief against the Secretary of the United States Department of Transportation, the Acting Administrator of the United States Federal Highway Administration, and the Director and Members of the Iowa Department of Transportation (IDOT) for failure to promulgate a "detailed statement" complying with the requirement of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.,¹ that [8 ELR 20222] the statement examine the environmental impact ofa proposed action significantly affecting the quality of the human environment and its alternatives. Plaintiffs assert also a claim that defendants have failed to comply with the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f), and Federal Aid Highway Act of 1968, 23 U.S.C. § 128. The court does not consider the contentions raised with respect to the latter two Acts because it is concluded that defendants have not complied with NEPA.

The standard applicable to a consideration of plaintiffs' motion requires that there be no genuine issue as to any material fact and that the moving party be entitled to a judgment as a matter of law. Rule 56(c) FED. R. CIV. P., see Poller v. Columbia Broadcasting System, 368 U.S. 464, 467 (1962). There appears to be no genuine dispute as to the following material facts. The project at issue here is a 21-mile stretch of Freeway 520 commencing 300 feet east of U.S. Highway 20 in Webster County and running in a southeasterly direction just north of the south corporate line of Fort Dodge crossing U.S. Highway 169 and connecting to the main portion of the freeway now completed to the east in Hamilton County.² This small portion of freeway composed of two small segments, 3 and 4, is part of a 298-mile east-west route through North Central Iowa connecting the border cities of Dubuque on the east and Sioux City on the west. Currently only small sections of the freeway are built. However, the Federal Highway Administration (FHWA) has approved the location for approximately 181 miles of the freeway corridor, almost two-thirds of the total length, and the IDOT has prepared final or draft environmental impact statements (EISs) for 165 miles of the freeway, greater than half of the total length.

The question here is whether the final EIS for segments 3 and 4 of Freeway 520 minimally complies with the dictates of NEPA. The court concludes that it does not for two reasons: (1) it is too narrow in scope, failing to address the cumulative impact of the entire highway project or, at least, a major portion thereof; and (2) assuming arguendo that the 21-mile section does have independent utility, the EIS contains an inadequate analysis of the environmental impacts, including secondary impacts, and an insufficient discussion of alternatives to the proposed segments.

Failure to Address Cumulative Impacts of the Freeway

The construction of the Freeway 520 project was first planned in 1965. It was not until September 24, 1974, however, that a draft EIS for segments 3 and 4 became available and was circulated among interested local, state and federal agencies. Both the United States Department of Interior (DI) and the Environmental Protection Agency (EPA) in response rated the draft statement as inadequate for failure to assess cumulative effects. The final EIS failed to remedy the objections.

The court cannot, as the DI and EPA could not,³ ignore the fact that defendants are filing EISs for the Freeway 520 project as if they are all to be viewed in isolation rather than as an integrated whole. This approach runs contrary to the spirit of the Federal Highway Administration regulations which state:

A highway section should be as long as practicable to permit consideration of environmental matters on a broad scope and meaningful evaluation of alternatives. A highway section may include, when appropriate, completed as well as uncompleted portions of the highway and one or more future highway projects. Piecemealing proposed highway improvements in separate EISs is to be avoided. The highway section identified in the EIS . . . should include the total length of highway between logical termini even though only a short length of the total identified highway section is proposed for construction or reconstruction within the multi-year work program. . . . Environmental impacts identified and discussed in the EIS will ordinarily be those anticipated to be precipitated by the proposed construction, but will also, as pertinent, include impacts associated with the total highway section.

23 C.F.R. § 771.6.

The guidelines of the Council on Environmental Quality (CEQ), which have been accorded substantial weight in this circuit in determining compliance with NEPA,⁴ state:

(a) The statutory clause "major Federal actions significantly affecting the quality of the human environment" is to be construed by agencies with a view to the overall, cumulative impact of the action proposed, related Federal actions and projects in the area, and further actions contemplated.

(d) Agencies should give careful attention to identifying and defining the purpose and scope of the action which would most appropriately serve as the subject of the statement. In many cases, broad program statements will be required in order to assess the environmental effects of a number of individual actions on a given geographical area . . ., or environmental impacts that are generic or common to a series of agency actions . . ., or the overall impact of a large-scale program or chain of contemplated projects (e.g., major lengths of highway as opposed to small segments).

40 C.F.R. § 1500.6(a) and (d).

(1) . . . The interrelationships and cumulative environmental impacts of the proposed action and other related Federal projects shall be presented in the statement.

40 C.F.R. § 1500.8(a)(1).

The Supreme Court in Kleppe v. Sierra Club, 427 U.S. 390 [6 ELR 20532] (1976), addressed the issue of whether a comprehensive or programmatic EIS was required in the context of a coal-leasing program for which the DI was alleged to be "contemplating" a regional plan or proposal. While not requiring a comprehensive EIS in that context the Court stated:

A comprehensive impact statement may be necessary in some cases for an agency to meet this duty [of environmental decision making]. Thus when several proposals . . . that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences [8 ELR 20223] must be considered together. Only through comprehensive consideration of pending proposals can the agency evaluate different courses of action.

The determination of the region, if any, with respect to which a comprehensive statement is necessary requires a weighing of a number of relevant factors, including the extent of the interrelationship among proposed actions and practical considerations of feasibility.

Id. at 410, 412 (footnotes omitted).

An examination of the EIS here in light of the language in Kleppe supports the requirement of an analysis of the cumulative impacts of all of Freeway 520 for which corridor approval has been granted by the Federal Highway Administration rather than this 21-mile increment. First, there is no question but that there is a high degree of interrelationship among proposed actions pending concurrently before defendants. Each of the highway sections represented by an individual EIS or for which corridor approval hasbeen granted is an integral part of Freeway 520. The project description contained in the EIS for segments 3 and 4 explicitly recognizes the role of these segments as part of a greater scheme, a scheme which was not speculative or tentative either at the time the EIS was prepared or now.

Second, the fact that draft or final EISs have been prepared for over half of the freeway system, and location approval has been obtained for nearly two-thirds of the system suggests that feasibility is not a major objection.

In light of the high degree of interrelatedness of proposed freeway segments and the practical feasibility of analysis for cumulative impacts the court does not consider this an instance where a "high level of technical expertise" is necessary, as in Kleppe, to prepare a comprehensive, programmatic EIS. Even though highway plans are and should be visionary so that the overall project is not subject to the requirements of NEPA "at the outset," it is also true that "the long-range environmental effects of a state highway system" should be considered "at some point."⁵ A full consideration now is important to prevent the foreclosure of options so that all interested parties are not presented with a fait accompli.⁶ It is therefore concluded that defendants' decision to submit a final EIS addressed solely to the impact of this 21-mile segment is arbitrary⁷ in the absence of an analysis of the cumulative impacts of all segments contained in Freeway 520 corridors approved to date.⁸

Failure to Adequately Consider Secondary Impacts and Alternatives

The court also concludes that, even if the agency decision to submit an EIS focusing only on the impacts of the 21-mile segment be reasonable, the defendants did not reach their decision to build after a full consideration and balancing of environmental factors and the balance struck in the EIS was arbitrary and clearly gave insufficient weight to environmental values. See Minnesota Public Interest Research Group v. Butz, 541 F.2d 1292, 1300 [6 ELR 20736] (8th Cir. 1976). The EIS has not taken a full "hard look" at environmental consequences.⁹

The general rule is that the discussion of environmental effects and alternatives need not be exhaustive but rather need only provide sufficient information for a "reasoned choice of alternatives." Iowa Citizens for Environmental Quality, Inc., v. Volpe, 487 F.2d 849, 852 [4 ELR 20056] (8th Cir. 1973). Stated differently the statement must provide "a record upon which a decisionmaker could arrive at an informed decision." Environmental Defense Fund v. Corps of Eng'rs, U.S. Army, 342 F. Supp. 1211, 1217 [2 ELR 20353] (E.D. Ark. 1972), aff'd, 470 F.2d 289 [2 ELR 20740] (8th Cir. 1972), accord City of Des Plaines v. Metropolitan Sanitary District, 552 F.2d 736, 738 [7 ELR 20389] (7th Cir. 1977).

The EIS here as presently constituted, fails to provide any real detail with respect to certain secondary impacts if the project is constructed as proposed. The CEQ guidelines, 40 C.F.R. § 2500.8(a)(3)(ii), state:

Secondary or indirect, as well as primary or direct, consequences for the environment should be included in the analysis. Many major Federal actions in particular thosethat involve the construction or licensing of infrastructure investments (e.g., highways . . . etc.), stimulate or induce secondary effects in the form of associated investments and changed patterns of social and economic activities. Such secondary effects, . . . through inducing new facilities and activities, or through changes in natural conditions, may often be even more substantial than the primary effects of the original action itself.

FHWA guidelines, 23 C.F.R. § 771.18(i)(1), add:

(1) Highways may stimulate or induce other actions (secondary actions) such as more rapid land development or changed patterns of social and economic activities. . . . For instance, the effect on population and area growth associated with the construction of new highways may be among the more significant impacts. Such impacts associated with anticipated secondary actions should be assessed and discussed in . . . the EIS.

Both the DI and EPA in response to the draft EIS circulated to them found fault with the failure to adequately assess the stimulative effect the Freeway would have on commercial interest development, particularly along the corridor itself at interchanges. The final EIS fails to remedy this omission.

It seems obvious that freeway interchanges attract commercial interests such as restaurants, motels, gas stations, and truck stops. The interchange at U.S. Highway 169 would seem a particularly attractive target for commercial development. Yet the EIS contains no analysis of the type or extent of such development which might take place. The effects of this secondary development, such as increased air, water, and noise pollution, are completely ignored in the EIS. Such secondary effects need to be [8 ELR 20224] given some consideration even though somewhat speculative. A comprehensive cataloguing is not necessary. See City of Davis v. Coleman, 521 F.2d 661, 676 [5 ELR 20633] (9th Cir. 1975); Scientists Institute for Public Information, Inc. v. AEC, 481 F.2d 1079, 1091-92 [3 ELR 20525] (D.C. Cir. 1973).

Another example of inadequate discussion of secondary impacts relates to the treatment of salt compounds and de-icing agents in the EIS. This was, again, a matter of concern to EPA in its evaluation of defendants' draft EIS. Consequently, the final EIS was rewritten to incorporate a description of a pre-wetting technique in the application of de-icing salts which "cuts salt waste, reduces salt usage up to 40 percent, and reduces salt runoff." No mention was made of toxic additives present in the de-icing salts and no mention was made on their possible effects other than the conclusion that the chemical effect was considered to be insignificant. Just three years earlier, defendants, on another stretch of Freeway 520, had come to a radically different conclusion.¹⁰ There is no explanation, no hint, in the EIS filed here as to why such disparities should exist. These lacunae, the lack of detail, and the plethora of conclusory statements provide support for the conclusion that defendants have not taken a "hard look" at the environmental consequences of construction of segments 3 and 4 of Freeway 520.

The court also concludes that the consideration of alternatives to the proposed action in the EIS here was inadequate. The CEQ guidelines, 40 C.F.R. § 1500.8(a)(4), require:

A rigorous exploration and objective evaluation of the environmental impacts of all reasonable alternative actions. . . . Sufficient analysis of such alternatives and their environmental benefits, costs and risks should accompany the proposed action through the agency review process in order not to foreclose prematurely options which might enhance environmental quality or have less detrimental effects.

In each case, the analysis should be sufficiently detailed to reveal the agency's comparative evaluation of the environmental benefits, costs and risks of the proposed action and each reasonable alternative.

A mere listing of alternatives is clearly insufficient under the above guidelines. Rather, an affirmative analysis of environmental costs, benefits, and risks attributable to each reasonable alternative is necessary. Environmental Defense Fund v. Froehlke, 473 F.2d 346, 349, 351 [3 ELR 20001] (8th Cir. 1972). That analysis must be exhibited in the EIS itself. Calvert Cliffs Coordinating Committee v. United States Atomic Energy Comm'n, 449 F.2d 1109, 1118, 1128 [1 ELR 20346] (D.C. Cir. 1971); Rankin v. Coleman, 394 F. Supp. 647, 658 [5 ELR 20626] (E.D.N.C. 1975), modified, 401 F. Supp. 664 (1975). This open disclosure ensures consistency of agency action with the EISs role as an "action-forcing" document.

The EIS here purports to consider two alternatives to the proposed freeway: a "do-nothing" alternative and a "south alternate" freeway which would be located approximately two miles south of the proposed freeway section here — the "north alternate." The "do-nothing" alternative, possibly the most significant alternative,¹¹ was dismissed in one sentence, the EIS concluding that a freeway alternate had the advantage in enhanced safety, savings in fuel consumption, speed, efficiency and less traffic congestion.¹² The only other alternative considered — the "south alternate" — merited slightly greater discussion, amounting to one page of the 89 page EIS, and referred to a 1968 study available at the offices of IDOT.

Again the DI and EPA rated the draft EIS inadequate for failure to consider reasonable alternatives such as utilization of existing county road rights of way through Hamilton and Webster counties or upgrading present State Highway 175 or U.S. Highway 20 to meet projected travel demands.¹³ The final EIS rejected these alternatives for consideration on the basis of undisclosed "previous studies" not delineated.¹⁴ As in Brooks v. Volpe, 350 F. Supp. 269, 278 [3 ELR 20704] (W.D. Wash. 1972), "[t]here are vague references to studies, but . . . the statement relies entirely on generalities without specifically identifying even the source material on which it is based." The failure to consider these alternatives underscores the court's conclusion that a full balancing of environmental consequences apparent from the face of the EIS itself, did not take place.

The final EIS additionally failed to consider the reasonable alternative of modification of highway design from a four-lane controlled access highway (Class I standard) to a highway with greater access requiring a less extensive network of access roads thereby using less land.¹⁵ If highway design were modified in this fashion the alternatives of utilization of existing rights of way or upgrading present highways may assume greater viability. The point is not to second-guess defendants. The point is that with discussion of a full range of reasonable alternatives sufficient data and reasoning may be provided to enable a reader to evaluate the analysis and conclusions and to comment on the EIS. Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 93 [5 ELR 20285] (2d Cir. 1975). The narrow range of alternatives offered and the cursory analysis given those alternatives suggest that a decision has been made that a highway will be built, that it will be built on a new alignment, and that it will be built to Class I standards with fully controlled access. It also suggests that the defendants reached their decision without a full consideration and balancing of environmental factors. See Minnesota Public Interest Research Group v. Butz, supra, at 1300. Accordingly the EIS does not comply with NEPA. See State of Alabama ex rel. Baxley v. Corps of Engineers, 411 F. Supp. 1261, 1274 [6 ELR 20607] (N.D. Ala. 1976).

It is therefore ORDERED

1. Plaintiffs are entitled to declaratory relief that defendants have violated NEPA and defendants are directed to comply in accordance herewith.

2. Defendants are enjoined from constructing, letting contracts to construct, acquiring rights of way, or undertaking any other activities which would lead to the construction of the proposed segments 3 and 4 of Freeway 520 until defendants have complied with NEPA in accordance herewith.

3. State defendants' resisted motion to amend answer to conform to the federal defendants' answer filed December 6, 1977, granted.

1. The National Environmental Policy Act, 42 U.S.C. § 4332 provides:

[A]ll agencies of the Federal Government shall —

(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 and 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.

2. At the time the final draft of the environmental impact statement involved here was completed the main portion of the freeway to the east was still under construction.

3. The DI stated:

This statement, like those for other segments of Freeway 520, fails to discuss the overall, cumulative impacts of the total Freeway 520 project. Moreover, it does not relate the proposed project to segments of Freeway 520 to the east and west. This lack of discussion gives us particular concern, since Lizard Lake (a parcel of § 4(f) land) lies two miles directly west of the proposed western terminus of this project. It appears that construction of this project (F-520-4) may preclude consideration of feasible and prudent alternatives which would avoid the use of § 4(f) lands for the segment immediately to the west.

EPA added:

We have reviewed the Draft Environmental Statement for Freeway 520 in Webster and Hamilton Counties, Iowa. The statement is rated inadequate indicating it generally lacks any quantified information to assess future impacts to the natural or human environment. We believe a supplemental draft statement should be developed to discuss the subjects included in this letter. In particular, we are concerned about the numbers of impact statements being written on segments of 520 and the fact they do not address the 520 System's cumulative impacts. The Federal Highway Administration's proposed regulations . . . indicate the statement should have independent significance, be broad enough to avoid segmentation of projects, insure meaningful consideration of alternatives, and assess the overall impact of a chain of contemplated projects. This contention is also supported by the Council on Environmental Quality Guidelines of August 1, 1973. It would be desirable for each draft and final environmental impact statement presently being prepared on Freeway 520 segments to include a section discussing the cumulative effects of the entire Freeway.

EPA's comments in this vein continue at some length.See Final EIS, at 67, 71-72.

4. Minnesota Public Interest Research Group v. Butz, 541 F.2d 1292, 1299 n. 15 [6 ELR 20736] (8th Cir. 1976).

5. See Indian Lookout Alliance v. Volpe, 484 F.2d 11, 19 [3 ELR 20739] (8th Cir. 1973). Indian Lookout Alliance and Sierra Club v. Froehlke, 534 F.2d 1289 [6 ELR 20448] (8th Cir. 1976), represent the Eighth Circuit's latest pronouncements on highway segmentation versus the need for a comprehensive statement covering cumulative impacts. Though the court did not attempt to enunciate a general rule covering all cases it is clear that it adopted an analysis substantially similar to that employed in Kleppe. In particular, with regard to the interrelationship of the proposed project to others the court considered whether the proposed segment had an independent utility of its own and whether it connected logical termini. In this case the western terminus consists of a point 300 feet east of U.S. Highway 20 and the eastern terminus is a previously completed portion of the Freeway. The western terminus is not a present major highway or city.

Defendants maintain that the court should consider the project's western terminus to really be the interchange of Freeway 520 and U.S. Highway 169 even though there will be construction to the west of the Highway 169 interchange. Defendants characterize the construction of Freeway 520 beyond the Highway 169 interchange as "temporary." No explanation is given concerning the function of this "temporary" extension, if the effects of highway construction can be considered temporary, and the court must consider the project's western terminus to be what the EIS says it is.

The eastern terminus connects to another segment of this ongoing freeway project. A finding of independent utility would represent abject myopia. This is simply not a case, analogous to Sierra Club v. Froehlke, where a determination of whether or not any of the other sections of the Freeway will ever be built would require speculation on the part of the court. See Sierra Club v. Froehlke, supra, at 1299.

Analysis of this problem of segmentation under the test proposed in Swain v. Brinegar, 542 F.2d 364, 369 [6 ELR 20609] (7th Cir. 1976), provides substantial support for the result reached here.

6. Any number of options may be foreclosed by the incremental piecemealing of a 300-mile freeway such as here. An example here might be the inexorable taking of Lizard Creek State Park lying two miles directly west of the western terminus of this freeway portion. The Department of the Interior requested that the final EIS contain a commitment that future western construction will avoid parklands. The final EIS did not go that far.

7. See Kleppe v. Sierra Club, supra, at 412.

8. The court notes that the eastern two-thirds of Freeway 520 and a four-mile western extremity have received corridor approval as of December 18, 1975. See Exhibit 19 appended to plaintiffs' motion for summary judgment. Though the focus of this order, requiring an EIS analysis of cumulative impacts, is upon these portions only, it is recognized that, as a practical matter, an analysis of the entire freeway may be the most feasible and preferable approach.

9. The court may not substitute its judgment for that of the agency but must ensure that the agency has taken a hard look at environmental consequences. Kleppe v. Sierra Club, supra, at 410 n. 21.

10. See Exhibit 6, Final Environmental Impact Statement for Freeway 520, Sioux City, Woodbury County, at 32-33 which contains the following analysis of salt additives:

Various salt additives are also known toxicants. The two most common additives are ferric ferrocyanide (Prussian blue) and sodium ferrocyanide, used as anti-caking agents. Sodium ferrocyanide is not itself harmful but in solution it produces deadly hydrogen cyanide which is extremely toxic to fish and other aquatic life forms. To quote an EPA study, — "numerical limits for cyanide are among the lowest and most critical of all the trace ions to be tolerated for various water uses." Rust inhibitors are another group of salt additives. The potential toxicity of these compounds is not known and should be thoroughly investigated.

11. Natural Resources Defense Council v. Hughes, 437 F. Supp. 981, 990 [7 ELR 20785] (D.D.C. 1977).

12. Final EIS, at 15.

13. Id. at 69, 72.

14. Id. at 72.

15. See Draft EIS (Supplemental) U.S. 30, Benton and Linn Counties, at 47 (February 1977), Exhibit 9 appended to plaintiffs' motion for summary judgment filed October 19, 1977.