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CITIZENS' COMM. FOR ENVTL. PROTECTION v. UNITED ST

June 9, 1978

The CITIZENS' COMMITTEE FOR ENVIRONMENTAL PROTECTION, an unincorporated association, Delaware & Raritan Canal Coalition, a non-profit corporation, New Jersey Citizens for Clean Air, Inc., a non-profit corporation, the League for Conservation Legislation, an unincorporated association, New Jersey Public Interest Research Group, a non-profit corporation, and Lake Nelson Association, a non-profit corporation, Plaintiffs
v.
UNITED STATES COST GUARD, United States Army Corps of Engineers, New Jersey Department of Transportation, and United States Environmental Protection Agency, Defendants



The opinion of the court was delivered by: BARLOW

On August 22nd, 1977, the plaintiffs applied for an order to show cause and a temporary restraining order with respect to the project bids, which were scheduled to be opened by the state defendant on August 24th, 1977. The order to show cause regarding the issuance of a preliminary injunction was made returnable for September 6th, 1977. The application for a temporary restraining order was denied upon the state defendant's representation that construction would not begin before September 6th. On September 6th, the plaintiffs' renewed application for a temporary restraining order was denied. Evidentiary hearings on the plaintiffs' application for a preliminary injunction were held on September 6th, October 5th-6th, November 1st-3rd, and November 9th, 1977. By the consent of all counsel, the proceedings on the plaintiffs' application for a preliminary injunction were consolidated with the trial on the merits. Transcript, filed January 23rd, 1978, at 636 (hereinafter cited as "T"). See Fed.R.Civ.P. 65(a)(2). By April 24th, 1978, all parties had submitted proposed findings of fact and conclusions of law.

 I. FACTS

 The Court's findings of fact are based on a review of the testimony presented at the evidentiary hearing and on a review of the numerous documents submitted by the parties. After setting out the general purposes of the Route 18 project, we will discuss those facts relevant to the plaintiffs' primary challenges to the project namely, the sufficiency of the two federal permits authorizing certain aspects of the project and the sufficiency of the Environmental Impact/Section 4(f) Statement (hereinafter cited as EI/Section 4(f) Statement).

 A. Purposes of Route 18 Project.

 Chapter 102 of the 1966 New Jersey Session Laws authorized the State Highway Commissioner to:

 
as soon as practical . . . add to the State highway system a new route beginning at Route 18 in New Brunswick and taking a northwesterly direction generally parallel to the Raritan river crossing the river in the Leupp lane-Metlars lane area and continuing to Route 22 in the vicinity of the westerly terminus of Greenbrook road, Greenbrook township, Somerset county together with spur to Route 287 in the vicinity of Metlars lane in the township of Piscataway.

 Chapter 291 of the 1971 New Jersey Session Laws provided that the road established would be designated as a freeway. See N.J. Stat.Ann. 27:6-1 & 27:7A-1 to 7A-9.

 The major long-term purpose of the Route 18 freeway extension project is to reduce the severely congested traffic patterns presently existing in the New Brunswick-Piscataway area. At the present time, all traffic on the completed Route 18 highway empties onto Albany Street, a city street. Through traffic on Route 18 and the New Brunswick central business district is now required to pass through a complex, rotary-type intersection at the New Brunswick end of the Albany Street Bridge and follow the stop-and-go city street routes through Highland Park and then onto River Road bordering Johnson Park. Neighborhoods south of the river in New Brunswick which are affected by this traffic are heavily populated and contain schools, churches, and residential and commercial buildings.

 In addition, the new route will improve access among the five campuses of Rutgers University. At present, intercommunication among the Rutgers University campuses, located on opposite sides of the river and in New Brunswick, is by private car and University-sponsored shuttle buses, and these vehicles must compete with in-city and Route 18 traffic across the four-lane Albany Street Bridge or traffic on the narrow two-lane Landing Lane Bridge. The project, therefore, will relieve the stop-and-go traffic flow which contributes heavily to noise, engine emission pollution, and congestion and which increases the safety hazards to pedestrians. The highway is also expected to aid in conserving vehicle petroleum fuel. By providing a more direct route through the area, it will relieve the energy-consuming stop-and-go traffic conditions on the congested arterials and collector streets which now carry the Route 18 traffic.

 The project will provide Rutgers University with a vital link between its five campuses within the New Brunswick area. In light of the fact that approximately 21,000 students are moved between these five campuses by the University's bus system or by private automobile, the absence of an adequate connection across the Raritan River creates severe traffic congestion and significant time loss for the students, faculty and staff who must move between these campuses in order to conduct routine business. This constricted crossing of the river has further resulted in the impairment of efficiency of numerous University operations. Additionally, decisions regarding the location of key University facilities, such as the University's new 8,400 seat athletic center in Piscataway Township adjacent to the projected right of way of proposed Route 18, have been closely tied to the expectation that the highway would be built to link these campuses. Delay in the construction of the instant project would serve to exacerbate the University's existing problems and frustrate the future development of the institution.

 Additionally, a trend of serious deterioration is presently in evidence in the City of New Brunswick. Ever-increasing numbers of residents have fled the city and a substantial number of once-attractive neighborhoods are now slums or about to be slums. Large numbers of private businesses have left the New Brunswick area, thereby increasing unemployment and decreasing the tax base. Testimony adduced at trial delineates the aggressive effort of Johnson & Johnson and numerous groups of private citizens, businesses, the State University and other institutions to revitalize the City of New Brunswick. At present, more than one million dollars in private capital has been raised in the effort to formulate a comprehensive plan for the renewal of the city. The cornerstone of such plan is the decision by Johnson & Johnson to remain in the city and erect its new worldwide headquarters therein. Such decision would result in Johnson & Johnson's investment of more than $ 40,000,000. and yield more than one thousand new jobs for the area. Such investment is also expected to trigger private capital investment in the City of New Brunswick of more than $ 100,000,000. However, the very linchpin of all of the above plans for revitalization was the commencement of the instant project. In fact, Chairman Burke had indicated that if construction had not commenced on the Route 18 project in the fall of 1977, Johnson & Johnson would regrettably have been forced to pursue alternate plans to expand its facilities outside of New Brunswick, thereby eliminating all of the benefits to the city set forth above.

 The proposed Route 18 project involves the construction of a bridge across the Raritan River and the placement of fill in both the Raritan River and the Delaware and Raritan Canal. Consequently, the project calls into play the provisions of Sections 9 and 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 401 & 403. *fn1" In the view of the state and federal defendants, the bridge across the Raritan River required the Coast Guard to issue a permit pursuant to Section 9 *fn2" and the fill to be placed in the Raritan River and the Delaware and Raritan Canal required the Army Corps of Engineers to issue a permit pursuant to Section 10.

 The history of the state defendant's Section 9 permit for the bridge to cross the Raritan River began in 1965. In that year, the state defendant was informed by the Army Corps of Engineers *fn3" that a point downstream of the proposed bridge site had long been accepted as the effective head of navigation of the Raritan River. In reliance upon this information, the state defendant thereafter sought a permit to place bridge piers from the New Jersey Department of Conservation and Economic Development (presently the New Jersey Department of Environmental Protection). The permit was issued on April 7th, 1970, and the state defendant commenced and completed the pier construction in 1970.

 Coast Guard investigation also included determination of the scope of Coast Guard responsibility for the project. More particularly a Memorandum of Agreement between the Coast Guard and the United States Army, Chief of Engineers, had been executed in order to clarify their respective areas of jurisdiction and responsibilities regarding the construction of bridges in navigable waters of the United States. See Plaintiffs' Trial Exhibit 1, Final EI/Section 4(f) Statement, Appendix F, at 13-17. The Coast Guard indicated that, in accordance with this Memorandum of Agreement, one permit was to be issued under Section 9 for the subject Route 18 project. It was further indicated that the permit to be issued by the Coast Guard would include the bridge in its entirety and work associated therewith, as defined in Sections 4.A and 4.B of the Memorandum of Agreement. Id. at 15.

 The Coast Guard also indicated to the state defendant that the Coast Guard had responsibility under the National Environmental Policy Act, 42 U.S.C. § 4321, Et seq. (NEPA), and Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f), to assess the potential environmental impact of the permit action, including identification and assessment of impacts causally related to the bridge project. Since the Route 18 upgrading project was complete through the New Street intersection in New Brunswick, that intersection was determined by the Coast Guard to be the logical, most southerly beginning of its scope of responsibility. Route 18 had actually been constructed between New Street and the more northerly Albany Street Bridge; however, the Coast Guard was aware that approximately 1,000-1,500 feet of this portion was to be reconstructed to facilitate an interchange at the entrance to the Albany Street Bridge. The proposed intersection at Sutphen Road and Metlars Lane was determined by the Coast Guard as the logical northerly termination of Coast Guard scope of responsibility.

 Pursuant to its responsibilities under NEPA, the Coast Guard met with state and local officials and concerned interest groups throughout investigation of the permit application and analyzed comments and information submitted to fully evaluate the opposing concerns and to seek, with the state defendant, methods of mitigating identified adverse impacts of the proposal. On June 29th, 1973, a draft EI/Section 4(f) Statement for the project was filed by the Coast Guard and made available to appropriate federal, state and local agencies and the general public in order to obtain their comments. The draft EI/Section 4(f) Statement thereafter accompanied the permit proposal through the Coast Guard's review processes. On July 16th, 1976, the project's final EI/Section 4(f) Statement was filed with the Council on Environmental Quality and likewise made available to the public. In addition, a supplement to the final EI/Section 4(f) Statement was prepared by the Coast Guard. The express purpose of this supplement was to provide additional information in order to permit the Commandant of the Coast Guard, as the delegatee of the United States Secretary of Transportation, to determine if there was any feasible and prudent alternative to the project and if all possible planning to minimize damage to parkland and historic properties had been performed. On August 18th, 1976, after completion of the Coast Guard's NEPA-mandated environmental assessment process, Bridge Permit 36-73 was granted, approving the location and construction at the Route 18 bridge structure. See Plaintiffs' Trial Exhibit 14.

 The history of the state defendant's Section 10 permit is somewhat less complicated. On September 20th, 1972, the state defendant applied to the Army Corps of Engineers for a permit authorizing, in general, the placement of fill along the Raritan River and in a section of the Delaware and Raritan Canal. On July 6th, 1977, the Army Corps of Engineers issued its Statement of Facts and Findings in relation to the state defendant's application. The Corps' findings were based, in part, on the final and supplemental EI/Section 4(f) Statement prepared by the Coast Guard and on the Corps' own investigation. See Plaintiffs' Trial Exhibit 12. On July 8th, 1977, the Secretary of the Army authorized the state defendant to place fill and rip-rap and to construct a roadway, bikeway, walkway, retaining walls, water conduit, discharge and overflow pipes, spillway and portage area, all of which are in conjunction with the extension of Route 18. See Plaintiffs' Trial Exhibit 7.

 C. The Environmental Impact/Section 4(f) Statement.

 At the hearing, the plaintiffs introduced testimony bearing on the adequacy of the final EI/Section 4(f) Statement's analysis of alternative alignments and analysis of hydrologic data. As for alternative alignments, the plaintiffs produced two witnesses: Mr. Willis Klotzbach and Mr. Cooper Bright. Mr. Klotzbach, a professional engineer, testified that, in his opinion, certain alternatives to the project had not been considered. However, Mr. Klotzbach also testified that he had not reviewed any of the supporting documentation to the final EI/Section 4(f) Statement, nor had he done any independent traffic analysis to support his conclusion that certain ramps of the project in the vicinity of the Rutgers campus should be eliminated. Mr. Klotzbach acknowledged that had he reviewed the study prepared by the consulting engineers to the state defendant, King and Gavaris, he would also have seen that, contrary to his original statement that only one interchange at the intersection of River Road and Metlars Lane was reviewed, in reality six separate configurations were studied.

 Mr. Bright's testimony focused on the adequacy of the Coast Guard's analysis of a plan submitted by the now-defunct Center for Transportation Studies of the Eagleton Institute of Politics, Rutgers University. The plan was completely embodied in a document dated April 3rd, 1972, known as Center for Transportation Studies Report No. 28, An Alternate Highway Bridge Plan for Improving Route 18. This document was submitted to the Coast Guard and the state defendant and was thoroughly reviewed and evaluated by the consulting engineers, King and Gavaris, in preparing its analysis of alternatives to the project. Report No. 28 proposes widening the existing Albany Street Bridge, widening the existing two-lane River Road to four lanes from Raritan Avenue to Metlar's Lane, and, optionally, rebuilding the existing Landing Lane Bridge to accommodate the traffic which the project is designed to handle. The consulting engineer prepared, during the course of its environmental analysis, a rendering of the route advocated by Report No. 28, which was included in the final EI/Section 4(f) Statement.

 Mr. Bright, who was responsible for the preparation of Report No. 28, believed that the route advocated in Report No. 28, as drawn by the consulting engineer, was not the route that his present organizations, the Rutgers Student Committee on Route Eighteen (RSCORE) and the Citizens Committee to Preserve the Delaware and Raritan Canal, Raritan River and Johnson Park had wanted evaluated. Mr. Bright did testify, however, that if Report No. 28 was evaluated by the consulting engineer, then the RSCORE plan was evaluated because every element of the RSCORE plan was contained within the report. The comments on the draft EI/Section 4(f) Statement by these two groups are included in the final EI/Section 4(f) Statement. The comments advocate a configuration which conforms to the description contained in Report No. 28. At no time prior to the issuance of the Coast Guard permit on August 18th, 1976, did Mr. Bright or any of his organizations supply a drawing which delineated the specific proposal that he contends was not evaluated by interested governmental agencies. More than six months after the Coast Guard permit was issued, such a drawing was finally prepared and submitted on April 29th, 1977, to the Coast Guard and the Corps of Engineers. Comparison of the drawing, as explained by Mr. Bright's testimony, with the comments contained in the final EI/Section 4(f) Statement reveals considerable change in the RSCORE Report No. 28 proposal. For example, Report No. 28 advocated widening the Albany Street Bridge and a roadway passing Under Raritan Avenue to deliver westbound traffic to River Road. This proposal was fully and carefully analyzed by the consulting engineer and the Coast Guard. The RSCORE drawing, however, advocates an Overpass to accomplish the same function. At no time prior to the presentation of the RSCORE drawing to the Coast Guard is there any emphasis by Mr. Bright or his organizations on an overpass.

 Further, the Coast Guard gave extensive and careful consideration to the various options contained in Report No. 28 and to their environmental detriments. With the exception of Mr. Bright, who is not a highway engineer and who has never built or designed highways, there is no evidence that the plan advocated in Report No. 28 was not analyzed and evaluated in accordance with applicable federal environmental laws. Indeed, even after the permit was issued the Coast Guard met with Mr. Bright on several occasions, reviewed and reanalyzed his plan, and even sought additional information from other governmental bodies. The end result was that the plan, with all its options, advocated by Report No. 28 was rejected as unable to fulfill the requirements of the project in an environmentally acceptable and functionally workable manner. Nonetheless, there was full and comprehensive evaluation.

 Plaintiffs' criticism of the EI/Section 4(f) Statements' analysis of hydrologic data concerns the project's impact on flooding in the area. Separate hydrologic analyses were prepared by the consulting engineer and the Corps of Engineers. Review was also conducted by the Federal Highway Administration. All three groups concluded that the bridge construction and fill in the Raritan River will have negligible effect on floodwater levels and flood ...


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