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VINE ST. CONCERNED CITIZENS, INC. v. DOLE

February 28, 1985

VINE STREET CONCERNED CITIZENS, INC.
v.
ELIZABETH H. DOLE, Secretary of Transportation of the United States and THOMAS D. LARSON, Secretary of Transportation of the Commonwealth of Pennsylvania



The opinion of the court was delivered by: SHAPIRO

SHAPIRO, Judge.

 MEMORANDUM AND ORDER

 Plaintiff in this matter sought injunctive relief under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., to prevent proposed pre-construction and construction activities on the Vine Street Transportation Improvements Project (the "Vine Street Expressway" or "Expressway") until defendants have prepared an adequate Supplemental Environmental Impact Statement considering the impact of simultaneous construction of the Vine Street Expressway and the proposed Philadelphia Convention Center.

 Plaintiff Vine Street Concerned Citizens, Inc. ("Concerned Citizens") is a Pennsylvania non-profit corporation; its members include businesses and residents in the vicinity of the proposed Expressway construction. Defendants are Elizabeth H. Dole, Secretary of Transportation of the United States and Thomas D. Larson, Secretary of Transportation of the Commonwealth of Pennsylvania. This Expressway project is to improve that portion of the Vine Street Expressway (I-676) in Philadelphia between 17th and 18th Streets on the west and the Benjamin Franklin Bridge on the east. The project also includes ramps interconnecting with local streets and with the Delaware Expressway (I-95). The total length of limited access highway involved is approximately 1.3 miles.

 Following a hearing on February 7, 1985, this court denied injunctive relief for reasons stated from the bench but retained jurisdiction to consider the merits of this litigation on an expedited basis. This memorandum is an elaboration of the court's bench opinion.

 In 1980, a joint federal, state and city task force was formed to develop alternatives for Vine Street. *fn1" The task force determined that the originally proposed full-scale Expressway could not be achieved without unacceptable displacement of significant community resources and that there should be further consideration of alternatives. Preparation of the Draft Environmental Impact Statement ("DEIS") considering numerous alternatives was completed in December, 1982. Following public hearings, evaluation of all comments received, and further review and analysis, a two-volume Final Environmental Impact Statement ("FEIS") was prepared and approved by the Federal Highway Administration ("FHWA") in September, 1983. The FEIS selected a scaled-down Expressway alternative *fn2" as the basis for design and construction of the project. The FHWA record of decision accepting the final design of the scaled-down alternative was issued on March 6, 1984.

 The Expressway construction is planned for completion under four construction contracts. According to the Affidavit of Vito Genua, Project Manager for the Pennsylvania Department of Transportation, the contracts contemplated for 1985 provide for pre-construction activities; building four noise walls near Chinatown, installing air conditioning and double glazing on the windows at Holy Redeemer Church and School and Roman Catholic High School, removing the Reading Railroad viaduct, building a pumping station at 10th and Vine Streets and modifying one at 22nd Street, building a retaining wall for the 13th Street bridge, building a temporary service road, and relocating some utilities. These pre-construction activities require termination of certain leases for parking lots adjacent to the proposed construction and demolition of some buildings. Work on the pre-construction phase is scheduled to commence in March, 1985, but delays in obtaining necessary federal funds may force at least some postponement. *fn3"

 During the preparation of the Expressway Draft and Final Environmental Impact Statements, the City of Philadelphia was contemplating the use of several sites for a Convention Center. On September 15, 1983, one week prior to FHWA's issuing the FEIS, the City's Convention Center Steering Committee recommended that the Reading Terminal be selected as the site for a new Convention Center. The FEIS's discussion of the proposed Convention Center is limited to the following paragraph:

 
Convention Center -- Two sites are currently being considered by the City of Philadelphia for future consideration of a Convention Center in Center City. These sites, Franklintown (A) and Reading Terminal (B) are within the Vine Street study area. Selection of a site is expected in August, 1983, with construction completed in 1987.

 FEIS, Volume 1, p. 75.

 The Philadelphia City Council approved the Reading Terminal site on October 4, 1984, and the City is currently preparing a DEIS for the Convention Center. According to the Government's testimony at this court hearing, this DEIS should be ready for circulation and public comment by the end of February or beginning of March, 1985.

 The crux of the controversy before us is whether the simultaneous construction of the Expressway and Convention Center so essentially and extensively impacts the affected environment that a supplement to the Expressway FEIS is required. *fn4" The pertinent federal regulation states:

 
The DEIS or FEIS may be supplemented at any time. Supplements will be necessary when there have been significant changes in the proposed action, the affected environment, the anticipated impacts, or the proposed mitigation measures.

 23 C.F.R. § 771.129 (1984). The Concerned Citizens contend that until a supplemental EIS is prepared, all pre-construction and construction activities must cease or members of the Concerned Citizens will suffer irreparable harm. But defendants argue that whether there has been significant change is not properly before the court at this time. Because the Convention Center DEIS is not yet complete, the FHWA has not been able to determine whether the Convention Center plans constitute a significant environmental change meriting a supplemental EIS. Defendants also contend that until FHWA makes this decision, there is no final agency action ripe for review and this case is therefore premature. ...


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