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Swain v. Brinegar

decided: July 20, 1976.

TIMOTHY W. SWAIN AND KATHERINE A. SWAIN, PLAINTIFFS-APPELLANTS,
v.
CLAUDE S. BRINEGAR, INDIVIDUALLY AND AS SECRETARY OF TRANSPORTATION FOR THE UNITED STATES, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Southern District of Illinois, Peoria Division - No. P CIV 74 53. ROBERT D. MORGAN, Judge.

Fairchild, Chief Judge, Swygert, Cummings, Pell, Sprecher, Tone and Bauer, Circuit Judges.*fn* Swygert, Circuit Judge. Tone, Circuit Judge, with whom Pell and Bauer, Circuit Judges, join, dissenting.

Author: Cummings

CUMMINGS, Circuit Judge.

Plaintiffs brought this suit to enjoin further action on acquisitions and construction of a 15-mile segment of a proposed Federal Aid Highway project consisting of a 42-mile supplemental freeway connecting Peoria and Lincoln, Illinois. At present, the two cities are connected only by Illinois Route 121, a two-lane highway. The Lincoln-Peoria proposal was designated FAP 406 and divided into two components. The northerly portion runs from Route I-74 south of Peoria to a point between Delavan and Hopedale, Illinois, on the south. The southerly portion is the immediate subject of this suit and runs 15 miles from the point between Delavan and Hopedale south to an interchange with Interstate I-55 just northwest of Lincoln. The northern terminus of this 15-mile segment would connect with an already constructed 3-1/2 mile stretch at the south end of the other segment of FAP 406.

This project developed as a result of a 1967 study of the long-range needs of Illinois for additional highways. That study recommended that the state construct an 1800-mile trunk system of interstate roadways and supplemental freeways designed to connect every Illinois city of over 25,000 population. FAP 406 is one of those connecting roads.

Plaintiffs are the owners of a 440-acre farm, part of which lies in the path of the new highway. Their major contentions are that the defendants, in planning and describing to the public FAP 406, failed to comply with the Federal Aid Highway Act, 23 U.S.C. §§ 101 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. The plaintiffs argued that the procedure used to select the corridor in which FAP was to be located was arbitrary and in violation of the legislative policy of full public disclosure in the Federal Aid Highway Act. In addition, the plaintiffs challenged the adequacy of the Environmental Impact Statement (EIS) because preparation had been improperly delegated to a state agency and because, in any event, the document was insufficient under the requirements of NEPA. After a hearing, the district court rendered an opinion on the merits in defendants' favor. Swain v. Brinegar, 378 F. Supp. 753 (S.D. Ill. 1974). Last year a unanimous panel of this Court validated the corridor selection procedures for this part of the 42-mile supplemental freeway to be constructed from Lincoln to Peoria, Illinois. However, by a divided vote, this Court held that there was an improper delegation of authority to the Illinois Department of Transportation with respect to the EIS required by 42 U.S.C. § 4332(2)(C). 517 F.2d 761, 776-779.

Thereafter, Congress amended NEPA by providing in Public Law 94-83 that an EIS "shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official" if (1) the state agency has statewide jurisdiction, (2) the federal official furnishes guidance and participates in its preparation, (3) the federal official independently evaluates such statement prior to its approval and adoption, and (4) after January 1, 1976, the federal official notifies and solicits the views of "any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts" upon such entity.*fn1 The amendment, however, does not relieve the federal official "of his responsibilities for the scope, objectivity, and contents of the entire" EIS. 89 Stat. 424; 42 U.S.C. § 4332(2) (D). To determine the effect of this amendment on our prior ruling, we granted a rehearing en banc.

It is clear that the decision of the panel can no longer stand in light of the NEPA amendment. The EIS was prepared by the Illinois Department of Transportation, an agency having statewide authority. The record reveals that the draft and final statements were adequately reviewed by the Federal Highway Administration (FHWA) and that it furnished sufficient guidance to the state. The federal participation was not limited to the FHWA, for the appendix to the EIS discloses that the document was considered by each federal agency with an interest in the matter. Most importantly, the FHWA complied with the purposes of NEPA, as amended, by accepting and exercising final authority for the evaluation of the environmental impact of the proposal. See Senate Report No. 94-52, pp. 10-11, 2 U.S. Code Cong. & Admin. News 859, 868 (1975); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 531 F.2d 637, 639 (2d Cir. 1976).

Since the amendment to NEPA contained in Public Law 94-83 overruled our prior holding that the delegation of authority by the federal agency to the Illinois Department of Transportation was unlawful, we must rule on the sufficiency of the final EIS prepared by the Illinois Department of Transportation and approved by the Federal Highway Administration on August 9, 1973. This involves determining not only whether the EIS complied with the requirements of NEPA that it address certain factors, but also whether the scope of the EIS is at least as broad as the scope of "the 'federal action' being taken." Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 322, 95 S. Ct. 2336, 45 L. Ed. 2d 191 (SCRAP II). We find no flaw with the EIS to the extent it evaluates the 15-mile segment between Delavan and Lincoln. However, the federal action here concerns the construction of FAP 406, the whole supplemental 42-mile freeway, and not merely the Delavan-Lincoln segment. Since the EIS before us considers only the southern 15-mile segment, it was insufficient under NEPA and the pertinent regulation.

Under Section 102(2) (C) of NEPA, the EIS is to include 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))

Our study of the present EIS, consisting of forty-six pages of textual material and numerous maps, charts and pictures, persuades us of the statutory adequacy of the EIS if this 15-mile segment of FAP 406 were to be considered alone. The EIS gives the requisite "hard look" at the proposed action. SCRAP II, supra, 422 U.S. at 322.

The EIS considered the reasonable alternatives to building the proposed 15-mile segment including:

"a.) upgrading existing Illinois Route 121 to a full access controlled high speed facility, b.) constructing a full-access controlled Freeway on a new alignment which would serve the same traffic as existing Illinois Route 121 and c.) not to construct the highway improvement." (Exhibit 2 to Appendix 1D)

In the EIS, the need for a new road was specifically explained on the basis of the growth in traffic and the expansion of the communities to be served by the highway. The benefits and drawbacks of the alternative locations, such as upgrading Route 121, were weighed against the advantages and disadvantages of the suggested path. We believe that this section of the EIS fully complies with NEPA's mandate. Friends of the Earth v. Coleman, 513 F.2d 295, 297-298 (9th Cir. 1975); Trout Unlimited v. Morton, 509 F.2d 1276, 1285-1286 (9th Cir. 1974); Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289, 296-297 (8th Cir. 1972), certiorari denied, 412 U.S. 931, 37 L. Ed. 2d 160, 93 S. Ct. 2749.

Further, the EIS considered all of the relevant environmental consequences of the proposed highway, including the taking of 700 acres of farmland, the increase in noise and air pollution and the harm caused by any changes in the land grading. An EIS need not review all possible environmental effects of a project. It is sufficient if it considers only those which are "reasonably foreseeable." Carolina Environmental Study Group v. United States, 166 U.S. App. D.C. 416, 510 F.2d 796, 798-799 (1975); Trout Unlimited v. Morton, supra, 509 F.2d at 1283. Finally, the district judge gave satisfactory reasons for holding that the EIS discussion of the adverse environmental effects was sufficiently detailed. 378 F. Supp. at 759-760. This aspect of the EIS therefore meets the standards set forth in Sierra Club v. Froehlke, 486 F.2d 946, 952-953 (7th Cir. 1973); see also Fayetteville Area Chamber of Commerce v. Volpe, 515 F.2d 1021, 1027-1028 (4th Cir. 1975), certiorari denied, 423 U.S. 912, 96 S. Ct. 216, 46 L. Ed. 2d 140; Daly v. Volpe, 514 F.2d 1106, 1111-1112 (9th Cir. 1975); Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 851-853 (8th Cir. 1973).

However, we cannot agree that it was proper to confine the EIS to this 15-mile segment. Based on the standards articulated in NEPA, the regulation and the cases, it is clear that under the facts of this case, the proposed federal action being taken includes funding the entire 42 miles of FAP 406. Therefore, the judgment of the district court must be reversed.

Initially, the state defendants assert that this point was neither raised in the pleadings nor "at any time in the proceedings before the filing of Appellants' brief following the hearing before the trial court" (Br. 21). But plaintiffs fully attacked the EIS with respect to this project in paragraphs 15, 17(i) and 18 of their complaint; this very point was argued before the trial court judge and was considered in his opinion. 378 F. Supp. at 760. Therefore, it is ripe for decision here.

We are supported in our conclusion that "the proposed action" within the meaning of Section 102(2) (C) of NEPA covers the entire 42 miles of FAP 406 by the pertinent regulation contained in the Federal Highway Administration's Policy and Procedure Memorandum (PPM) 90-1, setting forth guidelines for implementing Section 102(2)(C) of NEPA. Section 6 of that PPM provides:

"The highway section*fn2 included in an environmental statement should be as long as practicable to permit consideration of environmental matters on a broad scope. Piecemealing proposed highway improvements in separate environmental statements should be avoided. If possible, the highway section should be of substantial length that would normally be included in a multiyear highway improvement program." (See 23 C.F.R. § 771.5(a) for the current wording.)

The purpose of the PPM standards and those fashioned by the courts is to insure that any assessment of the environmental impact of the project will be meaningful. Segmentation of highway projects, although necessary to make their design and construction more manageable, can limit the usefulness of environmental impact studies in two significant ways. First, the project can be divided into small segments; although the individual environmental impact might be slight, the cumulative consequences could be devastating. Second, the location of the first segment may determine where the continuation of that roadway is to be built. In such a case, preparation of the EIS for the extension is no more than a formal task because the decision-maker's ability to choose a different route no longer exists. On the other hand, an EIS need not consider the long-term visions of highway designers and urban engineers when they suggest comprehensive plans which may take years to construct, if they are to be built at all. The information contained in an EIS for such a ...


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