Smeltzer v. Adams

No. C 77-3011 (N.D. Iowa April 5, 1978)

On defendant's motion to clarify an earlier injunctive order requiring preparation of a programmatic environmental impact statement (EIS) on a proposed highway project, the court exempts a five-mile portion of one segment of the highway from the injunction against construction or right-of-way acquisition and specifies the duty imposed on defendants by the earlier order. The stipulations of the parties indicate that injunctive relief was not intended to extend to this portion of the project. The court's order requires preparation, either by means of a supplement or an entirely new impact statement, of a programmatic EIS on the 181-mile portion of the highway that has already received corridor approval. The revised EIS must be circulated for comment and review, and the agency's final decision on the highway can only be made after the statement has been considered.

Counsel are listed at 8 ELR 20221.

[8 ELR 20352]

McManus, J.:

Order

This matter is before the court on defendants' resisted motions for amplification filed February 13, 1978, and for clarification filed February 17, 1978.

This court granted plaintiffs' application for preliminary injunction and declaratory relief on January 30, 1978 [8 ELR 20221] enjoining defendants from constructing, letting contracts to construct, acquiring rights-of-way, or undertaking any other activities which would lead to the construction of proposed segments 3 and 4 of Freeway 520 until the National Environmental Policy Act [NEPA] had been complied with. Defendants' motions seek first, to exempt the easternmost portion of segment 3 from the injunction and second, to clarify defendants' duty to compile a comprehensive or programmatic environmental impact statement [EIS] covering those portions of the freeway for which corridor approval has been obtained.

Defendants' motion to exempt from injunction the easternmost portion of segment 3 of Freeway 520 running approximately five miles in length from State Highway 17 as extended (County Road R-21) on the west to State Highway 17 directly south of Webster City on the east is granted.It is clear from a reading of the reporter's shorthand notes constituting the stipulations of the parties that this portion of the project was not intended to be the object of injunctive relief.¹ As to defendants' confusion on how to proceed in complying with the order of January 30, 1978, the court considers the intent and meaning decipherable. The following propositions may be helpful to defendants in evaluating the full ramifications of the order. First, a number of courts have held that an environmental impact statement should be broader than the construction limits of the project in question. See Patterson v. Exxon, 415 F. Supp. 1276, 1284 [6 ELR 20743] (D. Neb. 1976) and cases cited. This court has required by its order a programmatic EIS for Freeway 520 to the extent corridor approval has been obtained, that is, for 181 miles, or approximately two-thirds of the Freeway's length.² Whether this "big picture" analysis³ be accomplished by means of a supplement or addendum to the existing EIS or by means of an entirely new EIS is immaterial.⁴ However, in either event the revised EIS must be appropriately circulated for comment and review under NEPA. See No East-West Highway Committee, Inc. v. Whitaker, 403 F. Supp. 260, 282 [6 ELR 20053] (D.N.H. 1975).

Finally, despite the seeming agency commitment to construction of this highway,⁵ the agency decision "must, of course, be made after the supplement has been circulated, considered and discussed in the light of the alternatives, not before. Otherwise the process becomes a useless ritual, defeating the purpose of NEPA, and rather making a mockery of it." Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 92 [5 ELR 20640] (2d Cir. 1975); accord Natural Resources Defense Council v. U.S. Nuclear Reg. Comm'n, 539 F.2d 824, 845 [6 ELR 20513] (2d Cir. 1976).

It is therefore

ORDERED

1. Motions for amplification and clarification granted.

2. Motion for stay of proceedings to enforce judgment filed March 28, 1978, denied as moot.

1. The notes indicate that the parties agreed that:

Defendants will cease all activities to enter into construction contracts or to acquire land on segments 3 and 4 west of Highway 17 as extended (R 21). . . .

Plaintiffs' reply brief substantiates the conclusion that the eastern portion of segment 3 was excluded from consideration. See Plaintiffs' Reply Brief at 1 (filed Nov. 11, 1977).

2. While this establishes minimum compliance the court has noted that a programmatic EIS for the entire 298-mile freeway may be a feasible and preferable approach. See Smeltzer v. Adams, No. C 77-3011 at 8 n.8 [8 ELR 20221] (Order of Jan. 30, 1978).

3. "NEPA is clearly intended to focus concern on the 'big picture' relative to environmental problems. It recognizes that each 'limited' federal project is part of a large mosaic of thousands of similar projects and that cumulative effects can and must be considered on an ongoing basis." Swain v. Brinegar, 517 F.2d 766, 775 [5 ELR 20354] (7th Cir. 1975), vacated on other grounds, 542 F.2d 364 [6 ELR 20609] (1976).

4. Questions of format properly reside within the discretion of the issuing agency. Scientists Inst. for Pub. Info., Inc. v. Atomic Energy Comm'n, 481 F.2d 1079, 1092 [3 ELR 20525] (D.C. Cir. 1973); see Swain v. Brinegar, 542 F.2d 364, 370-71 [6 ELR 20609] (7th Cir. 1976).

5. The agency predetermination to build this Freeway has been previously noted. See Smeltzer v. Adams, No. C 77-3011, at 14 [8 ELR 20221] (Order of Jan. 30, 1978). The state defendants, as evidenced by paragraph 7 of their Motion to Amplify (filed February 13, 1978), apparently view NEPA compliance as an impediment to the ongoing Freeway 520 construction project. See also Swain v. Brinegar, 517 F.2d 766, 778-79 and n. 20 [5 ELR 20354] (7th Cir. 1975), vacated on other grounds, 542 F.2d 364 [6 ELR 20609] (1976).