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Township of Springfield v. Lewis

March 15, 1983

THE TOWNSHIP OF SPRINGFIELD, PARKLAND PRESERVATION FUND, A NEW JERSEY NON-PROFIT CORPORATION, AND WATCHUNG NATURE CLUB, A NEW JERSEY NON-PROFIT CORPORATION, APPELLANTS
v.
DREW LEWIS, INDIVIDUALLY AND AS THE PRESENT SECRETARY OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION, THE UNITED STATES DEPARTMENT OF TRANSPORTATION, RAY BARNHART, INDIVIDUALLY AND AS THE PRESENT FEDERAL HIGHWAY ADMINISTRATOR, THE FEDERAL HIGHWAY ADMINISTRATION, JOHN G. BESTGEN, JR., INDIVIDUALLY AND AS THE PRESENT REGIONAL ADMINISTRATOR OF REGION ONE OF THE FEDERAL HIGHWAY ADMINISTRATION, JOHN S. KESSLER, JR., INDIVIDUALLY AND AS THE DIVISION ADMINISTRATOR OF THE NEW JERSEY DIVISION OF THE FEDERAL HIGHWAY ADMINISTRATION, LOUIS J. GAMBACCINI, INDIVIDUALLY AND AS THE COMMISSIONER OF TRANSPORTATION OF THE NEW JERSEY DEPARTMENT OF TRANSPORTATION; AND THE NEW JERSEY DEPARTMENT OF TRANSPORTATION, APPELLEES



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Author: Becker

Before: WEIS and BECKER, Circuit Judges, and VAN DUSEN, Senior Circuit Judge

Opinion OF THE COURT

BECKER, Circuit Judge.

This case involves a challenge by environmental groups and local governmental units to the construction of a 5-1/2 mile long, six-land high-speed segment of Interstate Route 78 ("I-78"), a federally financed highway scheduled to run through a 2,000-acre New Jersey park known at the Watchung Reservation. Plaintiff-appellants are the Township of Springfield, the Parkland Preservation Fund, and the Watchung Nature Club. Defendant-appellees are Drew Lewis, Secretary of the United States Department of Transportation ("USDOT"); USDOT; Ray Barnhard, Administrator of the Federal Highway Administration ("FHWA"); FHWA; John G. Bestgen, Jr., Regional Administrator of Region One of FHWA; John S. Kessler, Jr., Division Administrator of the New Jersey Division of FHWA; Louis J. Gambaccini, Commissioner of Transportation of the New Jersey Department of Transportation ("NJDOT"); and NJDOT. Appellants sued for declaratory and injunctive relief to compel appellees to stop work on the proposed highway until they held additional hearings and prepared additional reports allegedly required by federal and state law. The District Court for the District of New Jersey, in four written but unpublished opinions, granted summary judgment for appellees on all nine claims of the complaint.

The case requires us to construe and apply three federal statutes: the National Environmental Policy Act of 10769 ("NEPA"), 42 U.S.C. §§ 4321-4370 (1976 & Supp. IV 1980); and the Federal-Aid Highway Act ("FAHA"), 23 U.S.C. §§ 101-156 (1976 & Supp. V 1981). We also must construe and apply the New Jersey Environmental Rights Act ("ERA"), N.J. Stat. Ann. §§ 2a:35A-1 to -14 (West 1982); and the New Jersey Action Plan ("Action Plan"), adopted pursuant to FAHA by FHWA and NJDOT. Appellants claim that appellees have violated each of these statutes and that the district court erred in not ruling, inter alia, (a) that appellees should have supplemented or redrafted the federally mandated Environmental ImpactStatement ("EIS"); (b) that appellees should have held new public hearing before deciding upon the location of, and even the desirability of constructing, the highway;*fn1 (c) that appellees gave inadequate consideration to the environmental impact of and alternatives to the proposed roadway; and (d) that appellees improperly approved the advance acquisition of a quarry adjacent to the site of the future highway without holding public hearings or waiting for the EIS to be approved.

For the reasons that follow, we conclude that: (a) appellees were not required to redraft or supplement the EIS; (b) they were not required to hold additional location hearings; (c) they adequately evaluated alternatives to the proposed highway as well as that roadway's effect on the environment; and (d) they lack standing to sue to enforce the "advance acquisition" regulations governing the purchase of the quarry. We therefore will affirm in full the judgment of the district court.

Because of the complexity of the statutes and regulations involved in the case, we will begin our discussion with a survey of the three principal statutes at issue: NEPA, FAHA, and DOTA. Against this statutory background, we then will develop the extensive factual and procedural history of this litigation. Our discussion of the merits of appellants' numerous claims will follow. While we will accord some of those claims summary treatment, we will consider several of them -- those dealing with redrafting the EIS, holding further hearings, evaluating alternatives to the proposal, and purchasing the quarry -- at length because of the significance of the issues and the importance to the litigants of this highway project.

I. Statutory Background

A. NEPA

NEPA represents the culmination of legislative efforts to

declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will p revent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Enviornmental quality.

42 U.S.C § 4321 (1976). The Act mandates that this environmental policy animate "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment,"*fn2 id. § 4332(2)(C), and provides that the "responsible official" in charge of each such major action must file a "detailed statement" (the EIS) discussing

(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.

Id. The responsible federal official must "consult with and obtain the comments of any Federal agency which has jurisdiction by law or special e xpertise with r espect to any environmental impact involved; and must make available the EIS and the related comments thereon to the President, the Council on Environmental Quality ("CEQ"), and the public.*fn3 Id. The official also must "study, develop, and describe appropriate alternatives to recommended courses of action in any a proposal which involves unresolved conflicts concerning alternative uses of available resources. . . ." Id. § 4332(2)(E).

The goal of NEPA, therefore is "to control the more destructive effects of man's technology on his environment. . . ." Pennsylvania Environmental Council, Inc. v. Bartlett, 454 F.2d 613, 624 (3d Cir. 1971). The EIS is the device that promotes the fulfillment of the statutory objective.

B. DOTA

Section 4(f) of DOTA decrees:

It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sights. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or Local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.

49 U.S.C. § 1653(f) (1976). Thus was engendered the "section-4(f) statement," which usually accompanies the EIS and demonstrates that the Secretary has made the two determinations set out in the statute. The Secretary's scrutiny must not be cursory, for DOTA's compass is broad:

Congress articulated in § 4(f) a disparate weighting against the use of parkland for highway projects. It said, don't use greenlands, but if you must do so, be practical and cut harm to the minimum. It did so in recognition of the fact that it is always easier to build highways through publicly owned parks because people and their homes, businesses, schools and churches will not have to be displaced and its acquisition costs little or nothing. This thumb-on-the-scale approach is required whenever the parkland is to be used. If courts were to interpret this section to permit an initial appraisal of whether the use was substantial, it would infuse consideration of elements (such as the degree of harm to the park, animal life, environment, etc.) which Congress did not want considered when it said, if there is another way, take it. Any park use, regardless of its degree, invokes § 4(f).

Louisiana Environmental Society, Inc. v. Coleman, 537 F.2d 79, 84 (5th Cir. 1976) (emphasis added).

C. FAHA

FAHA establishes rules and standards to which federal and state officials must adhere before a highway may be planned and constructed with 90-percent federal funds as a part of the federal Interstate System.*fn4 The Act reiterates the environmental concerns expressed in DOTA,*fn5 supra, and provides that

(a) Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of or, going through any city, town, or village, either incorporated or unincorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effect of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community. Any State highway department which submits plans for an Interstate System project shall certify to the Secretary that it has had public hearings at a convenient location, or has afforded the opportunity for such hearings for the purpose of enabling persons in rural areas through or contiguous to whose property the highway will pass to express any objections they may have to the proposed locations of such highway. Such certification shall be accompanied by a report which indicates the consideration given to the economic, social, environmental and other effects of the plan or highway location or design and various alternatives which were raised during the hearing or which were otherwise considered.

(b) When hearings have been held under subsection (a), the State highway department shall submit a copy of the transcript of said hearings to the Secretary, together with the certification and report.

23 U.S.C. § 128 (1976).*fn6 These public hearings are of two types:

Both a corridor public hearing and a design public hearing must be held, or an opportunity afforded for those hearings, with respect to each Federal-aid highway project that:

(1) Is on a new location; or

(2) Would have a substantially different social, economic, or environmental effect; or

(3) Would essentially change the layout or function of connecting roads or streets.

23 C.F.R. § 790.5(a) (1980) (emphasis added).*fn7

Considered together, NEPA, DOTA, and FAHA thus require a complex of reports and studies -- including an EIS, a section-4(f) statement, and public hearings -- before a federally financed highway such as I-78 can be built. Against this statutory and regulatory background, we now may consider the facts of the case before us.

II. Factual and Procedural Background

I-78 roughly parallels or replaces Route U.S. 22 and extends from the Holland Tunnel, in New York City, to Interstate Route 81, near Harrisburg, Pennsylvania, a distance of approximately 160 miles. Except for the area upon which we shall focus and a proposed 36-mile section bypassing Phillipsburg, New Jersey, and Allentown, Bethlehem, and Easton, Pennsylvania, I-78 has been completed and is open to traffic.

The subject of this case is a 5-1/2 mile gap (the "Watching Gap") in the New Jersey stretch of I-78 between the Township of Berkeley Heights and the Borrough of Watchung, on the west, and the Township of Springfield, on the east.*fn8 The Final Environmental Impact Statement ("FEIS") characterizes the area as suburban residential, with several large campus type industrial establishments interspersed among well defined neighborhoods. Notable among the land uses within this area are: the Bell Telephone Laboratories, the John E. Runnells Hospital, the Governor Livingston Regional High School and the Watchung Reservation, a 2,000+acre public park operated by the County of Union Department of Parks and Recreation.

2 FEIS at I-A-2.

The planning of I-78 began in 1956, when Congres enacted legislation providing for an interstate system of highways. Detailed location studies for the section from Newark to Annandale, New Jersey, (including the Watchung Gap) commenced in 1958, and the authorities involved presented the selected location (the "original alignment") at a public hearing held on June 30, 1958. 2 FEIS at I-B-2 to -4. On January 23, 1959, NJDOT wrote to the Bureau of Public roads (now the FHWA) and requested its "concurrence and approval in the alignment as presented at the hearing." Letter from James J. Malloy to H. P. Beschenbossel (Jan. 23, 1959) (requesting location approval), App. at A556. The Bureau approved the original alignment on February 11, 1959, and instructed NJDOT to proceed with detailed design plans. Letter from H. P. Beschenbossel to J. J. Malloy (Feb. 11, 1959) (granting location approval), App. at A634. NJDOT received final Plan, Specifications and Estimate approval of its design and contract plans in December 1965 and March 1966, and NJDOT then completed the acquisition or condemnation of all of the highway's right-of-way except for that land located within the Watchung Reservation. 2 FEIS at I-B-1. NJDOT "invested several years in negotiating with the Union County Park Commission [hereinafter the "Park Commission"] in an attempt to acquire the Watchung Reservation [right-of-way]." Id.

In July 1970, however, the project snagged: the Bureau of Public Roads rescinded its design approval because of lapse of time and because "significant design revisions required as a result of meetings with the . . . Park Commission." Id. An agreement between NJDOT and the Park Commission was not executed until April 10, 1972, by which time FHWA policy mandated that an EIS be prepared for any highway section "which receives or received design approval . . . on or after February 1, 1971." Id. (quoting FHWA Policy and Procedure Memorandum 90-1, Transmittal 202, Aug. 24, 1971). Moreover, FHWA determined that NJDOT would also have to file a section-4(f) statement, as section 4(f) of DOTA had been enacted prior to the rescission of design approval. Id.

NJDOT submitted its first Draft Environmental Impact Statement ("DEIS") and section-4(f) statement*fn9 to the CEQ and circulated it to the public in November 1973. Ensuing comments and technological changes revealed the need for further study, and a new DEIS was distributed on May 17,1 976. Id.

The 1976 DEIS studied the impact of the proposed highway segment on traffic, air quality, noise, water quality, flooding, and "socio-economics. " Also featured were analyses of nine principal alternatives, including a "no-build" alternative, as well as a series of design modifications introduced to mitigate adverse environmental impacts. 2 FEIS at I-B-5 to -7.

NJDOT held public hearings on the project from June 27 through July 1, 1976, and continued to receive written comments for the official record until November 1, 1976. 2 FEIS at I-A-2. NJDOT then began to prepare the FEIS and included therein updated studies relating to air quality, noise, ecosystems, industrial impact, traffic, and engineering. Id. at I-B-7 to -8.

The period from January 1977 through August 1978 saw a steady stream of letters between NJDOT and FHWA, with NJDOT submitting further studies and revising the EIS in response to information or changes requested by FHWA. App. at A557-83. On September 25, 1978, NJDOT submitted copies of the FEIS to FHWA and requested "early approval to print." Letter from F. Howard Zahn to John J. Kessler, Jr. (Sept. 25, 1978) (requesting approval to print FEIS), App. at A584. FHWA was not yet satisfied, however, and further comments and revisions flowed between the parties.*fn10 App. at A585-626. FHWA granted conditional approval to print the FEIS, Letter from John J. Kessler, Jr., to J. F. Andrews (April 15, 1980) (conditioning approval upon two revisions), App. at A635, and, on June 2, 1980, NJDOT transmitted to FHWA fourteen copies of the FEIS "for approval and adoption," Letter from F. Howard Zahn to John J. Kessler, Jr. (June 2, 1980) (requesting adoption of FHWA), App. at A105. Final approval was given on January 26, 1981. Letter from John J. Kessler, Jr., to Robert Innocenzi (Jan. 26, 1981) (approving FEIS), App. at A661.

The construction of I-78 through the Watchung Reservation, as approved by FHWA and USDOT, offers a number of benefits: the roadway is expected to improve the flow of vehicular traffic, saving both travel time and fuel; to reduce accident rates; and to lower "total vehicle pollutant emissions" because of smoother traffic flows and reduction in overall vehicles miles travelled. 1 FEIS at S-3 to -4. The adverse impacts, on the other hand, also are significant: the construction and presence of the six-lane highway will intrude upon the natural setting; will require the excavation of approximately 4.4 million cubic yards of rock and earth, mostly within the park; will necessitate the decimation of at least seventy acres of hardwood forest; will destroy animal habitat; will "cause noise in much of the Reservation"; will degrade water ...


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