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VINE ST. CONCERNED CITIZENS, INC. v. DOLE

August 28, 1985

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



The opinion of the court was delivered by: SHAPIRO

NORMA L. SHAPIRO, J.

 MEMORANDUM and ORDER

 The parties to this action have filed cross-motions for summary judgment. Plaintiff Vine Street Concerned Citizens, Inc. ("Concerned Citizens") moved to enjoin construction of the Vine Street Transportation Improvements Project ("Vine Street Expressway" or "Expressway") until defendants Elizabeth H. Dole, Secretary of Transportation of the United States, and Thomas Larson, Secretary of Transportation of the Commonwealth of Pennsylvania, prepared a Supplemental Environmental Impact Statement ("SEIS") to the Vine Street Final Environmental Impact Statement ("VSFEIS" or "FEIS"). This SEIS would evaluate the impact of the proposed Philadelphia Convention Center Complex at Reading Terminal ("Convention Center") on the Expressway, including any adverse impact of increased traffic flow and air and noise pollution. Defendants' cross-motion argued that there was no genuine issue as to any material fact and that defendants were entitled to judgment in their favor as a matter of law. The court heard oral argument on July 1, 1985 and granted the parties leave to supplement the record until August 9, 1985. The court now grants summary judgment in favor of the federal and state defendants.

 PROCEDURAL HISTORY

 On February 25, 1985, the City of Philadelphia issued the Convention Center DEIS. The FHWA reviewed the DEIS, evaluated the project's possible potential impact on the Vine Street Expressway, and determined on April 15, 1985 that a supplement to the Vine Street FEIS was not necessary. See Reevaluation, Vine Street Transportation Improvements Final Environmental Impact Statement, April 15, 1985 ("Reevaluation") (Administrative Record 269).

 This court called a conference with counsel on May 16, 1985 to discuss the court's tentative impression that this Reevaluation considered the impact of Convention Center traffic on Vine Street Expressway through traffic but not the impact on ingress and egress in the area from 8th to 15th Streets. On May 17, 1985, defendants supplemented the record with a Traffic Update to the Reevaluation of April, 1985 ("Traffic Update") that corrected an error in the Reevaluation and illustrated presumed traffic flows between the Convention Center and Expressway service roads on the entrance and exit ramps of the present plan.

 On May 31, 1985, plaintiff filed its motion for summary judgment and state and federal defendants subsequently filed responses and cross-motions. Concerned Citizens claimed that a SEIS was required as a matter of law; defendants claimed that because they had fully complied with both the letter and the spirit of the National Environmental Policy Act of 1969 (42 U.S.C. §§ 4321-47), they were entitled to summary judgment. At oral argument on July 1, 1985, plaintiff withdrew its contentions regarding air and noise pollution and simultaneous construction and stated on the record that the only issue remaining in contention was that of traffic flow and access to/from the Expressway from/to the Convention Center. *fn1" Because the court believed the Reevaluation and Traffic Update inadequately considered the issue of truck access to the Convention Center and because the Government did not make of record information regarding the speculative nature of the Convention Center, the court granted leave to the parties to supplement the record further. Defendants supplemented the record on July 29, 1985 with a Declaration of the Project Director for the Convention Center stating the tentative nature of the present designs for the Convention Center Complex and an additional analysis by project engineers of truck access via the Reading Viaduct to/from the Expressway from/to the Convention Center. Plaintiff responded to defendants' supplemental information on August 9, 1985.

 DISCUSSION

 The National Environmental Policy Act of 1969 ("NEPA") articulates "a national policy [to] encourage productive and enjoyable harmony between man and his environment." 42 U.S.C. § 4321. Although NEPA establishes "significant substantive goals for the Nation," its mandate is "essentially procedural," Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S. 519, 558, 55 L. Ed. 2d 460, 98 S. Ct. 1197 (1978). NEPA requires that agencies prepare a detailed draft and final Environmental Impact Statements ("EIS") concerning environmental consequences in connection with "every recommendation or report or proposal for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(c).

 Because even an accepted final EIS may be rendered inadequate when new circumstances arise that affect the environmental impacts of a proposed project, the Council on Environmental Quality ("CEQ") has set standards governing when an agency must supplement its EIS. *fn2" According to CEQ regulations:

 
Agencies shall prepare supplements to either draft or final environmental impact statements if . . . there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.

 40 CFR 1502.9(c)(1)(ii) (1985). See also 23 CFR 771.129 (1985).

 The "significance" of new circumstances or information is to be determined based on considerations ...


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