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March 10, 1982

GLOUCESTER COUNTY CONCERNED CITIZENS, Reuben Brody, Bruce Dennis and Ruth Z. Dennis, Evans Neale and Carolyn Neale, C. Walter Neale and Esther E. Neale, Daniel Ryan and Susan Ryan, Plaintiffs,
Neil E. GOLDSCHMIDT, Secretary of Transportation; John S. Hassell, Jr., Administrator, Federal Highway Administration; Robert E. Kirby, Administrator, Region I, Federal Highway Administration; and Louis J. Gambaccini, Commissionerof the New Jersey Department of Transportation, Defendants

The opinion of the court was delivered by: GERRY

This case presents a challenge by members of an unincorporated civic association and various individuals to the proposed construction of a freeway in Gloucester County, New Jersey. Plaintiffs seek declaratory and injunctive relief against funding for the planning and construction of Route 55 due to alleged violations of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., and the Federal Aid Highway Act, 23 U.S.C. § 101 et seq.

The federal defendants are Neil E. Goldschmidt, Secretary of Transportation; John S. Hassell, Jr., Administrator, Federal Highway Administration (FHWA); Robert E. Kirby, Administrator of Region I of FHWA. Louis J. Gambaccini, Commissioner of the New Jersey Department of Transportation (NJDOT), is the state defendant.

 Plaintiffs filed their three-count complaint on August 7, 1980. On November 20, 1980, plaintiffs filed a petition for a temporary restraining order and motion for preliminary injunction. The court denied the petition and motion, without prejudice, by order dated December 3, 1980.

 Count I of the complaint alleges that the Final Environmental Impact Statement (FEIS) for Route 55 fails to comply with alleged NEPA requirements of considering secondary impacts of the proposed highway and presenting a cost-benefit analysis.

 Under Count II, plaintiffs claim that the FEIS fails adequately to consider alternatives to the proposed Route 55, within the requirements of NEPA and relevant regulations.

 Count III alleges that defendants should be required to prepare a supplemental FEIS because there has allegedly been a substantial change in the design of Route 55 which significantly affects the environment.

 The complaint is directed at a 20-mile stretch of Route 55 proposed to be constructed as a four-lane freeway. This segment would extend from Route 42 in Deptford on the north to Route 40 in Malaga where it would join an already completed section of Route 55 extending to Port Elizabeth and would roughly parallel Route 47 (Delsea Drive).

 According to the FEIS, the purpose of the route is to relieve congestion along Route 47 and to serve the Vineland-Millville area. The projected traffic volumes for this area are expected to far exceed the capacities of the existing roadways as early as 1990.

 The Route 55 Freeway was originally authorized by the State Legislature in 1964. Location studies for the segment in question began in the late 1960's. Public hearings were held on August 12, 1970 to receive oral and written testimony to evaluate the most feasible and acceptable locations for the project.

 A draft environmental impact statement (DEIS) was prepared under the supervision of the NJDOT and the FHWA and approved by the Assistant Commissioner of Highways on October 10, 1971. The DEIS was prepared and circulated to the public on June 1, 1972. Following the circulation and pursuant to 23 C.F.R. § 790.5, another corridor public hearing was held on July 6, 1972.

 At the hearing, NJDOT presented three feasible corridor locations (S2, R2, R5), R5 being located to the east, R2 in the center and S2 to the west. Apparently, the comments at the hearing favored construction but expressed different preferences for the alternative corridors. Corridor S2 was the location ultimately adopted by the NJDOT.

 Thereafter, comments concerning the DEIS were received from the public and from other governmental agencies, and reviewed by both NJDOT and FHWA. A final EIS was prepared and approved by FHWA on September 2, 1975, at which time it also approved the S2 corridor location.

 Since the approval of the FEIS, defendants have updated it with a Noise Study Report of August 1977, a Cultural Resources Inventory of September 1977, supplemented in September 1978, and public design hearings in November 1978. A design was approved in 1978.

 Recently, NJDOT proposed a change in the highway, allegedly due to the financial realities bearing upon the availability of funds for highway construction. NJDOT proposed to construct the road in two stages: phase I is proposed as an interim stage in the construction of the full freeway, characterized by a reduction in the number of structures (inter-changes and/or over- and underpasses) present on the freeway; phase II will involve completion of the freeway structures as originally planned. FHWA has not yet studied the proposal. To that effect, FHWA has requested that NJDOT prepare and submit the proposed modifications accompanied by an environmental reevaluation. Although NJDOT has made no final or official submission crystallizing the proposed changes, plaintiffs seek, in Count III, a determination that the changes are "substantial," requiring the preparation of a supplemental EIS. Defendants contend that the relief sought by plaintiffs is premature because the FHWA has not yet had the opportunity to evaluate the changes and cannot do so until the environmental reevaluation process has been completed. Thus Count III of the complaint must be dismissed.

 Defendants also move for summary judgment on Counts I and II on the ground that the FEIS is in full compliance with NEPA and gave adequate consideration to secondary impacts, cost-benefit concerns and alternatives to highway construction. Moreover, defendants contend that the scope of the court's review under NEPA is limited to determining whether defendants complied with the requisite statutory procedures. NEPA does not confer upon plaintiffs any substantive rights.

 Plaintiffs take the position that defendants have not complied with NEPA in that the FEIS is inadequate because there is insufficient cost-benefit analysis and because it does not consider secondary impacts of the project. Because of these deficiencies, a new EIS must be prepared prior to initiation of construction. Moreover, the discussion of proposed alternatives in the FEIS is also inadequate because only the three alternative routes are discussed in detail. Thus, a new EIS must be made, and plaintiffs are entitled to summary judgment.

 Committee for the Completion of Route 55 urges, as amicus curiae, that the court consider the economic and social harm to the county if an injunction issues.

 Propriety of Summary Judgment

 F.R.Civ.P. 56 permits the entry of judgment where the moving party has demonstrated that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980).

 Plaintiffs' complaint raises two basic issues:

1) whether alleged deficiencies in a final environmental impact statement amount to non-compliance with NEPA, warranting an injunction against funding for a proposed highway project; and
2) whether a subsequent proposal by the state to undertake construction in two phases constitutes a change in the FEIS, requiring a supplemental environmental study, and whether the federal defendants have had sufficient time to consider the subsequent proposal and to determine its deviation from the original proposal, thus rendering the governmental action ripe for review at this time.

 Both of these issues raised by the complaint may be addressed in the context of the parties' cross-motions for summary judgment. The resolution of the issues does not require consideration of disputed factual issues. Moreover, there are very few facts which are in ...

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