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PENNSYLVANIA PROTECT OUR WATER & ENVTL. RESOURCES

September 20, 1982

PENNSYLVANIA PROTECT OUR WATER AND ENVIRONMENTAL RESOURCES, INC., et al., Plaintiffs,
v.
The APPALACHIAN REGIONAL COMMISSION, et al., Defendants



The opinion of the court was delivered by: RAMBO

 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 *fn1" (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. *fn2" 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). *fn3" 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.

 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.

 III. Jurisdiction

 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:

 
PROGRAM IMPLEMENTATION
 
The committee emphasizes that the Commission is not to become an operating agency.
 
The Commission's operation and experience to date amply demonstrate its ability to make final program and project decisions once the involved Federal agency or agencies has reviewed a proposal. This amendment is necessary to foster and facilitate the smooth and efficient prosecution of the program.

 H.R.Rep.No. 548, 90th Cong., 1st Sess. 23-24 (1967), reprinted in 1967 U.S.Code Cong. & Ad.News 1640, 1660.

 While the emphasized portion of the 1967 conference committee report might be ambiguous, congressional intent was made clear and succinct in the conference report to the 1975 amendments to the ARDA. (See Pub.L. No. 94-188, 89 Stat. 1079 (1975)). The conference report stated:

 
The Congress designed the Appalachian Regional Development Act of 1965 so that in many of the programs under the Act (such as those authorized in sections 202, 204, 205, 207, 211, and 214), the supplemental or special basic grant assistance approved by the Commission is subsequently extended to the grantee through the framework of Federal grant-in-aid programs administered by Federal departments and agencies. Section 116 of the Conference Report provides further clarification that the responsible Federal official shall review such grants only to determine that they are not incompatible with the provisions and objectives of the framework laws which he administers. In making this modification, however, it is intended that the Federal official administering the framework program through which the Appalachian Act assistance is provided, shall continue to discharge responsibility for assuring that such grants are not incompatible with other Federal laws such as, for example, the National Environmental Policy Act. Thus, the conferees intend, in such cases, that the department or agency responsible for the basic program would make such reviews and assessments as might be required by the National Environmental Policy Act. (Emphasis added)

 S.Rep. No. 94-552, 94th Cong., 1st Sess. 23 (1975); H.R.Rep. No. 94-727, 94th Cong., 1st Sess. 23 (1975) reprinted in 1975 U.S. Code Cong. & Ad.News 2157, 2189.

 The need for all program grants of ARC to comply with NEPA is not exempted, but ARC is clearly not the entity responsible for the environmental obligations required by NEPA. Therefore, the court concludes plaintiffs have failed to state a claim against defendants ARC, Al Smith and Richard Thornburgh regarding compliance with NEPA. *fn4"

 B. NEPA Requirements

 NEPA requires all agencies of the Federal Government to 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 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.

 42 U.S.C. § 4332(2)(C).

 NEPA imposes "essentially procedural" duties, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 98 S. Ct. 1197, 1219, 55 L. Ed. 2d 460 (1978) upon administrative agencies considering actions having the potential for affecting the environment. Township of Lower Alloways Creek v. Public Service Electric and Gas Company, 687 F.2d 732 (3d Cir.1982). According to the Third Circuit, NEPA is intended to serve two main objectives:

 
The dominant "thrust" of the Act is to ensure "that environmental concerns [are] integrated into the very process of agency decisionmaking." Additionally, the various procedures mandated by the statute are intended to "inform the public that the agency has considered environmental concerns in its decisionmaking process." (Citations omitted)

 Township of Lower Alloways Creek, 687 F.2d 732 at 739.

 Furthermore, NEPA requires only that an agency "consider" the environmental consequences of its decisions. Hence, once an EIS is prepared, it does not dictate any substantive outcome; the EIS is intended to make decision makers aware of the potential environmental ramifications of their actions. Township of Lower Alloways Creek, 687 F.2d 732 at 739 n. 13.

 C. Scope of Review

 There are two aspects to a court's review of an agency decision subject to the requirements of NEPA. First, a reviewing court must assess the agency's compliance with the duties NEPA places upon it. These duties are essentially procedural. The procedures are designed to insure that the agency takes a hard look at the environmental consequences of its proposed action. Bosco v. Beck, 475 F. Supp. 1029, 1033-34 (D.N.J.1979) aff'd mem., 614 F.2d 769 (3d Cir.), cert. denied, 449 U.S. 822, 101 S. Ct. 81, 66 L. Ed. 2d 24 (1980).

 
NEPA does set forth significant substantive goals for the Nation, but its mandate to the agencies is essentially procedural. It is to insure a fully informed and well-considered decision, not necessarily a decision the judges of the Court of Appeals or of this Court would have reached had they been members of the decision-making unit of this agency. Administrative decisions should be set aside in this context, as in every other, not simply because the Court is unhappy with the result reached. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S. Ct. 1197, 1219, 55 L. Ed. 2d 460 (1978).

 Vermont Yankee recognizes the impropriety of federal courts engrafting additional procedural or substantive standards onto the statutory requirements for administrative action. See North Slope Borough v. Andrus, 206 U.S. App. D.C. 184, 642 F.2d 589, 598-99 (D.C.Cir.1980). This court believes that its review of agency procedures within the requirements of NEPA is governed by the Administrative Procedure Act, 5 U.S.C. § 706(2)(D) which permits a court to set aside agency action found to be "without observance of procedure required by law." Gloucester County Concerned Citizens v. Goldschmidt, 533 F. Supp. 1222 (D.N.J.1982); Hovsons, Inc. v. Secretary of Interior of U.S., 519 F. Supp. 434, 443 n. 2 (D.N.J.1981).

 Second, the court makes a substantive review of the agency's action. This substantive review is quite narrow in scope. The court should only determine if the agency has given good faith consideration to the environmental consequences of its actions. The court should not pass judgment on the balance struck by the agency among competing concerns. Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068 (1st Cir.1980). This second review was set out in Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S. Ct. 497, 500, 62 L. Ed. 2d 433 (1980) (per curiam):

 
once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot "interject itself within the area of discretion of the executive as to the choice of the action to be taken."

 Another issue raised in this case concerning the court's scope of review of agency compliance with NEPA requirements involves the admissibility of evidence outside of the administrative record. Plaintiffs asserted in their brief opposing defendants' motions for protective orders and motions for summary judgment that the court should hear evidence outside of the administrative record in order to evaluate the alleged inadequacies of the FEIS. In support of their position plaintiffs principally relied on County of Suffolk v. Secretary of Interior, 562 F.2d 1368 (2nd Cir.1977), cert. denied, 434 U.S. 1064, 98 S. Ct. 1238, 55 L. Ed. 2d 764 (1978) where the sufficiency of an EIS was under attack. In that case the Second Circuit stated that:

 
Allegations that an EIS has neglected to mention a serious environmental consequence, failed adequately to discuss some reasonable alternative, or otherwise swept stubborn problems or serious criticism under the rug . . . raise issues sufficiently important to permit the introduction of new evidence in the district court, including expert testimony with respect to technical matters, both in challenges to the sufficiency of an environmental impact statement and in suits attacking an agency determination that no such statement is necessary. (Footnotes and Citations omitted)

 County of Suffolk, 562 F.2d at 1384-85.

 The Second Circuit, however, limited the probative value of such new evidence. Such evidence was relevant in the case before the court only insofar as it tended to show the agency's research or analysis was clearly inadequate or that the agency failed to set forth opposing views widely shared in the relevant scientific community. 562 F.2d at 1385.

 In further support of their position plaintiffs cited two other circuit cases: Izaak Walton League of America v. Marsh, 210 U.S. App. D.C. 233, 655 F.2d 346 (D.C.Cir.1981), cert. denied, 454 U.S. 1092, 102 S. Ct. 657, 70 L. Ed. 2d 630; Citizens for Balanced Environment and Transportation, Inc. v. Volpe, 650 F.2d 455 (2d Cir.1981).

 Defendants Montage, Inc., et al. and the federal defendants argued that the court's review was limited to the administrative record and that a de novo review was impermissible. Defendant Montage, Inc., et al. cited among other cases, Dry Color Manufacturers' Association, Inc. v. Department of Labor, 486 F.2d 98 (3d Cir.1973) and Philadelphia Council of Neighborhood Organizations v. Coleman, 437 F. Supp. 1341 (E.D.Pa.1977), aff'd mem., 578 F.2d 1375 (3d Cir.1978). *fn5" In Dry Color the Third Circuit reviewed Department of Labor emergency temporary standards under the substantial evidence in the record test required by 29 U.S.C. § 655(f). The court found that a report which appeared to constitute substantial evidence for the DOL action was not part of the administrative record. The court stated in a footnote:

 
It has long been settled that in reviewing an agency's action and the adequacy of an agency's articulation of its action, including findings of fact and reasoning processes, courts must look to the record that was considered by the agency and to the factual findings and reasoning of the agency -- not to post hoc rationalization of counsel or even agency members ...

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