RAMBO, District Judge.
In this action plaintiffs seek, inter alia, preliminary and permanent injunctive relief against the continued development, allocation of federal funds and construction of an access road to service components of the Montage Project located in Scranton and Moosic, Pennsylvania pending preparation, circulation and public review of a Final Environmental Impact Statement (FEIS) which fully complies with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., (1976) and its implementing regulations. Plaintiffs allege that the FEIS filed in support of the access road, for which federal funds have been approved, is inadequate on a number of grounds.
Extensive briefs have been filed on numerous motions pending before the court. The court held two days of hearings on plaintiffs' motion for preliminary relief as well as the case on the merits. For the reasons which follow the court will grant plaintiffs' requests for injunctive relief which shall last only until the FEIS gives appropriate treatment to an alternative route alignment proposal which was suggested during public hearings on the draft EIS.
I. Factual Background
Plaintiffs in this action include Protect Our Water and Environmental Resources, Inc. (POWER); James Golden, Jr.; Mary Allen and the Sierra Club. The Borough of Moosic, Pennsylvania was also a party plaintiff but filed a voluntary dismissal which was approved by the court on September 7, 1982. Defendants include the Appalachian Regional Commission (ARC); Al Smith and Richard Thornburgh, Co-Chairmen of the ARC; Drew Lewis, Secretary of the U.S. Department of Transportation; Ray Barnhart, Jr., Administrator of the Federal Highway Administration (FHWA); FHWA; George T. Turner, Jr., Regional Administrator of the FHWA Region Three; (these last four named defendants will be referred to as the federal defendants); Thomas D. Larson, Secretary of the Pennsylvania Department of Transportation (PennDot); Montage, Inc.; Lackawanna County Board of Commissioners; Charles Lugar, Chairman, Board of Commissioners of Lackawanna County; Scranton Lackawanna Industrial Building Co. (SLIBCO) (these last four named defendants will be referred to as Montage, Inc., et al.); Pennsylvania General Services Administration. (By order dated September 13, 1982 the Pennsylvania General State Authority was substituted as the proper party defendant in place of the Pennsylvania General Services Administration.)
This action arises from a proposal prepared by Montage, Inc. to develop the Montage Project in Lackawanna County, Pennsylvania. Montage, Inc. is a cooperative venture sponsored by the Lackawanna County Commissioners, the Scranton Central Labor Union (AFL-CIO) and its Building Trades Council and the Greater Scranton Chamber of Commerce. The latter chamber has worked through its industrial development organizations, the Lackawanna Industrial Fund Enterprises (LIFE) and (SLIBCO) (FEIS Vol. I, p. 4). The Montage project includes construction of a multi-season recreation area, civic arena, motor inn complex and access road. The access road will provide access to the multi-season recreation area and civic arena from the Davis Street Interchange of Interstate 81. The motor inn will have direct access from Davis Street (FEIS Vol. I, p. 3). The Montage Project is situated on a 534 acre tract of land 425 acres of which was originally owned by the Pennsylvania Gas and Water Company (PG & W) (FEIS Vol. I, pp. 1, 2, 6).
In February 1977 the Lackawanna County Commissioners filed an application with the Appalachian Regional Commission (hereafter ARC) for a grant of federal funds to construct a 2.1 mile, two lane controlled access road
(FEIS Vol. I, p. 6). The access road right of way comprising 140 feet will be owned and maintained by Lackawanna County to create a buffer zone to control development (FEIS Vol. I, pp. 7, 11). The design and construction of the road will be administered by Penn-Dot. In May 1978 the ARC approved funding of the Montage access road with two preconditions.
The ARC forwarded the application to the FHWA. (Administrative Record, hereafter AR, doc'ts. dated May 22, 1978 and May 24, 1978).
The FHWA administers the ARC highway program pursuant to 40 U.S.C. § 201(a) and 49 C.F.R. § 1.48(j). The FHWA determined that an Environmental Impact Statement (EIS) was required prior to construction of the road (AR doc't. dated August 10, 1979). A Draft Environmental Impact Statement (DEIS) was approved for release by FHWA on August 7, 1980 (AR doc't. dated August 8, 1980). Public hearings were held on the DEIS on October 7 and 8, 1980 (AR doc'ts. dated August 8, 1980 and Dec. 10, 1980). The FEIS was signed on July 27, 1981 by the FHWA Administrator for Region 3 subject to the condition that FHWA and PennDot work closely with the Pennsylvania Game Commission to develop a program of measures to mitigate anticipated impacts of the Montage development on wildlife values (FEIS Vol. I Cover Sheet). The FEIS was published in the Federal Register, notice to the public of the FEIS's availability occurred and following expiration of the public availability period, the Regional Director of FHWA signed the Record of Decision (AR doc'ts. dated Aug. 17, Aug. 28, Oct. 5, 1981 respectively).
On May 12, 1982 ARC determined that the two preconditions set for release of federal funds for construction of the road had been met (AR doc't. dated May 20, 1982).
On May 20, 1982, FHWA gave authorization for construction as requested by PennDot (AR doc't. dated May 20, 1982). Bids were invited on May 28, 1982 and bid opening occurred on June 24, 1982.
On August 10, 1982 the FHWA Division Administrator signed a Reevaluation of FEIS/Wetland Finding for the Montage Project (AR doc't. dated August 11, 1982). In the reevaluation the FHWA re-examined the FEIS in light of new information on wetlands to determine if a supplemental EIS needed to be filed. The FHWA concluded that no supplemental EIS was necessary.
II. Procedural Background
Plaintiffs initiated this action by filing a verified complaint on March 2, 1982. The complaint set out five causes of action: violation of NEPA, 42 U.S.C. § 4321 et seq. and its implementing, including 23 C.F.R. § 771 et seq., 40 C.F.R. 1500 et seq., and DOT Order 5610.1C; violation of § 404 of the Clean Water Act, 33 U.S.C. § 1344; violation of Executive Order 11990, 42 Fed.Reg. 26961 (1977); violation of Article I Section 27 of the Pennsylvania Constitution; violation of Borough of Moosic, Pennsylvania zoning and subdivision ordinances. The complaint sought preliminary and permanent injunctive relief on all counts.
Motions to dismiss were filed by the following defendants: Montage, Inc., et al., Commonwealth of Pennsylvania on behalf of Governor Thornburgh and Thomas Larson and Pennsylvania General State Authority, ARC, and United States Attorney on behalf of Al Smith.
Plaintiffs then moved for a preliminary injunction on all counts (although plaintiffs' supporting brief only addressed NEPA, Executive Order 11990 and the Clean Water Act). Prior to a hearing on plaintiffs' motion, the following defendants filed motions for summary judgment: Montage, Inc., et al., Commonwealth of Pennsylvania on behalf of Governor Thornburgh, Thomas Larson, Pennsylvania General State Authority; ARC; and the federal defendants.
On July 27, 1982 the court set August 23, 1982 as the hearing date on plaintiffs' motion for a preliminary injunction. On August 4, 1982 the court signed a stipulation signed by all parties whereby the parties agreed inter alia that until August 12, 1982 no contract would be awarded and no costs would be incurred relating to construction of the access road. Upon expiration of the stipulation on August 12, 1982 but prior to the hearing on the preliminary injunction, plaintiffs moved for a temporary restraining order. Following a one day hearing on August 17, 1982 the court on the same day denied the motion based upon representations and testimony that no construction would begin prior to the preliminary injunction hearing on August 23, 1982.
The court held hearings on the motion for preliminary and permanent injunctive relief on August 23 and 24, 1982.
Plaintiffs base jurisdiction upon 28 U.S.C. § 1331, NEPA, 42 U.S.C. § 4321 et seq., the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and the doctrine of pendent jurisdiction.
IV. Alleged Violations of NEPA
A. Jurisdictional Issues
Defendants ARC, Al Smith, and Richard Thornburgh, Federal Co-Chairmen of the ARC, filed motions to dismiss and motions for summary judgment concerning plaintiffs' NEPA claim on the grounds plaintiffs had failed to state a claim upon which relief could be granted. The motions were based upon two theories: Congress exempted the ARC from NEPA responsibilities; the ARC is not a federal agency and hence has no responsibilities under NEPA.
In support of their argument that neither the ARC nor its Co-Chairmen are subject to the mandates of NEPA, defendants ARC, Smith and Thornburgh rely upon National Wildlife Federation v. ARC, No. 78-1913 (D.D.C. filed September 13, 1979), aff'd. 219 U. S. App. D.C. 295, 677 F.2d 883 (D.C.Cir.1981) and SMASH, Inc. v. Moreland, No. C78-1091A (N.D.Ga., filed March 31, 1981). In those cases the district courts ruled that the Appalachian Regional Development Act (ARDA), 40 U.S.C.App. § 1 et seq. stands in conflict with NEPA and operates to specifically relieve the ARC and its Co-Chairmen from the obligation to prepare an EIS for activities associated with the Appalachian Development Highway System, 40 U.S.C.App. § 201. National Wildlife, No. 78-1913 slip op. at 7-11; SMASH, No. C78-1091A, slip op. at 6-8.
This court agrees with the plaintiffs that the D.C. Circuit did not address ARC's exemption from NEPA when the Circuit affirmed the district court decision in National Wildlife Federation, supra. Nevertheless, this court agrees with the reasoning of the two district court judges and their conclusion that the FHWA is the federal agency responsible for complying with NEPA requirements, not the ARC or its federal Co-chairmen. The two district judges reviewed the legislative history of ARDA to reach their conclusion. The Conference Committee's report on the 1967 amendment to § 223 of ARDA, (See Pub.L. 90-103, § 118 (1967)) stated:
Section 223 of the 1965 act, as amended by the reported bill provides that the Commission's judgment with respect to applying Appalachian Act program criteria, including such matters as the evaluation of growth potential, financial need, and the importance of a program or project and its contribution to the permanent improvement of the area in which it is located and the region, shall be final and not subject to further review by the Federal departments and agencies. However, no program or project is to be implemented until the applications and plans relating thereto have been determined by the responsible Federal official to be compatible with the provisions and objectives of Federal laws which he administers that are not inconsistent with this act. The technical evaluation of projects and the actual accomplishment of programs and projects continues to be the responsibility of the Federal departments and agencies. (Emphasis added)