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PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY v. FH

March 20, 1995

PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC.; ENVIRONMENTAL DEFENSE FUND AND NEW JERSEY ENVIRONMENTAL LOBBY, Plaintiffs,
v.
FEDERAL HIGHWAY ADMINISTRATION; RODNEY SLATER, ADMINISTRATOR; RUSSELL A. ECKLOFF JR., DIVISION ADMINISTRATOR; UNITED STATES DEPARTMENT OF TRANSPORTATION; FEDERICO PENA, SECRETARY AND FRANK J. WILSON, COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF TRANSPORTATION, Defendants.



The opinion of the court was delivered by: ALFRED J. LECHNER, JR.

 LECHNER, District Judge

 This action is brought by plaintiffs, Public Interest Research Group of New Jersey, Inc., Environmental Defense Fund and New Jersey Environmental Lobby (collectively "the Plaintiffs"), seeking declaratory and injunctive relief under the National Environmental Policy Act, 42 U.S.C. §§ 4321-4370(d) (the "NEPA"), and the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (the "APA"). Plaintiffs seek to enjoin the defendants, Federal Highway Administration (the "FHWA"); Rodney Slater, Administrator; Russell A. Eckloff Jr., Division Administrator; United States Department of Transportation; Federico Pena, Secretary; and Frank J. Wilson, Commissioner of New Jersey Department of Transportation (the "NJDOT") (collectively "the Defendants") *fn1" , from constructing two High Occupancy Vehicle ("HOV") lanes on Route 287 in Morris County, New Jersey (the "Project"). See Complaint for Declaratory Judgment and Injunctive Relief (the "Complaint"), PP 1, 28.

 Currently before the court are Plaintiffs' motion for permanent injunction (the "Motion for Permanent Injunction") and both the Federal and State Defendants' motions for summary judgment (the "Summary Judgment Motions"). *fn2" For the reasons set forth below, Plaintiffs' Motion for Permanent Injunction is denied; Defendants' Summary Judgment Motions are granted.

 Procedural History

 On 1 September 1994, Plaintiffs filed the Complaint, seeking a declaratory judgment and injunctive relief. Complaint at 2. The Complaint seeks an order requiring the NJDOT to prepare an environmental impact statement ("EIS") or an environmental assessment ("EA") for the Project. Id. The Complaint alleges the FHWA's decision to grant a Categorical Exclusion ("CE") to the Project was arbitrary and capricious, and violated the NEPA. Id. at 2 to 3. Plaintiffs also seek to enjoin the FHWA from allocating any Federal funds to the Project, and to prohibit the NJDOT from soliciting bids or performing any further work on the Project. Id. at 3.

 On 22 September 1994, the Plaintiffs filed an Order to Show Cause, seeking a Temporary Restraining Order barring Defendants from proceeding on the Project. The application was denied. See Docket Sheet. At the 22 September 1994 hearing, it was agreed Plaintiff would file a motion seeking a permanent injunction pursuant to Rule 12N, Appendix N of the Rules Governing the United States District Court for the District of New Jersey (the "Local Rules").

 On 13 December 1994, the 1-287/78 Corridor Coalition (the "Coalition"), submitted a motion to file an amicus curiae brief (the "Amicus Brief"). On 20 January 1995, the motion was denied. See opinion and Order, denying the Coalition's motion for leave to file an Amicus Brief.

 On 7 February 1995, the parties filed, pursuant to Local Rule 12N, the Motion for Permanent Injunction and Summary Judgment Motions. *fn3" Oral argument was heard on 20 March 1995, at which time all counsel were given an opportunity to argue their positions with respect to this matter.

 Facts

 A. The History of the Project

 1. The Original Proposal

 In the mid-1980's, the NJDOT proposed the Project, which called for the construction of an additional lane in the east and west directions of Route 287 in portions of Somerset and Morris Counties. A.R. Vol. IA-27; Hamby Declaration at P 2. The Project was proposed in response to numerous "citizen complaints" regarding traffic congestion and related problems. A.R. Vol. IA-42. The new lanes were to be added in the existing Route 287 median, and would continue for a distance of 21.7 miles. A.R. Vol. IA-25 to 27; Hamby Declaration at P 2.

 In reviewing a project with any potential environmental impact, the FHWA provides three classifications that control the level of documentation required before construction may begin:

 
(a) Class I (EIS's). Actions that significantly affect the environment require an EIS (40 C.F.R. § 1508.27)....
 
--(b) Class II (CE's). Actions that do not individually or cumulative[ly] have a significant environmental effect are excluded from the requirement to prepare an EA or EIS. A specific list of CE's normally not requiring NEPA documentation is set forth in § 771.117(c). When appropriately documented, additional projects may also qualify as CE's pursuant to § 771.117(d).
 
(c) Class III (EA's). Actions in which the significance of the environmental impact is not clearly established. All actions that are not Class I or II are Class III. All actions in this class require the preparation of an EA to determine the appropriate environmental document required.

 23 C.F.R. § 771.115.

 At the time of the original Project proposal, the NJDOT's level of action determination indicated an EA would be prepared for the Project, pursuant to NEPA regulations. A.R. Vol. IA-25. An EA is a document examining the environmental impacts of a project. 23 C.F.R. § 771.119; Hamby Declaration at P 2. The EA was indicated because, at the time of proposal, the Project did not qualify for a CE, pursuant to 23 C.F.R. § 771.117. *fn4" The FHWA concurred in the NJDOT's decision to prepare an EA. A.R. Vol. IA-29; Hamby Declaration at P 2.

 Subsequent to the Defendants' decision to prepare an EA, however, the FHWA amended 23 C.F.R. § 771.117. The regulation, as amended, provides, in pertinent part:

 
Additional actions which meet the criteria for a CE in the [Council on Environmental Quality (the "CEQ")] regulations (40 C.F.R. [§ ] 1508.4) *fn5" and paragraph (a) of this section [see n.2, supra] may be designated as CE's only after Administration approval. The applicant shall submit documentation which demonstrates that the specific conditions or criteria for these CE's are satisfied and that significant environmental effects will not result. Examples of such actions include but are not limited to:
 
(1) Modernization of a highway by resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes (e.g. parking, weaving, turning, climbing).
 
(2) Highway safety or traffic operations improvement projects including the installation of ramp metering control devices and lighting....

 At that point, the NJDOT determined that the Route 287 Project would not have significant environmental impacts and should qualify for a CE. The NJDOT, therefore, in compliance with the mandate of 23 C.F.R. § 771.118(d), submitted documentation justifying a CE for the Project. A.R. Vol. IV-2642 through 2664. The documentation provided information indicating: no significant socioeconomic impact was expected because all widening was to be done within the existing right-of-way; no significant archaeological impacts were expected because all construction was to take place on land previously disturbed by highway construction; no historical structures are on the site of the Project; the construction of the Project would comply with all regulations governing construction in the Buried Sole Source Aquifer Recharge Zone; all unavoidable impacts to wetlands would be mitigated and comply with the United States Army Corps of Engineers Section 404 Permit and with the New Jersey Freshwater Wetlands Act; and a noise study would be completed to determine the extent of noise impacts and determine whether noise barriers were feasible and cost-effective. Hamby Declaration at P 4. The NJDOT concluded:

 
With the inclusion of noise barriers at locations where they are found to be feasible and cost effective the proposed I-287 lane addition project will not have any significant social, economic or environmental impacts.

 A.R. Vol. IV-2658.

 Based on the documentation submitted by the NJDOT in accordance with 23 C.F.R. § 771.118(d), in July of 1988, the FHWA concurred in finding no significant environmental impact would result from the Project. Accordingly, the FHWA also concurred in granting a CE to the project. A.R. Vol. IV-2645; Hamby Declaration at P 5. *fn7"

 2. The HOV Lane Proposal

 Based on the findings of the study, the decision was made to redesign the Project, which would now constitute constructing HOV lanes on Route 287 between Route 78 and Route 80. Hamby Declaration at P 7. The Project was to receive some Federal funding through the Intermodal Surface Transportation Efficiency Act of 1991 (the "ISTEA"). A.R. Vol. IB-105 to 106.

 The NJDOT, accordingly, submitted new documentation to the FHWA, justifying a CE for the Project, which now was designed solely to construct the HOV lanes on Route 287. A.R. Vol. IB-103 to 243. Hamby Declaration at P 7. The NJDOT's justification for the CE classification was as follows:

 
This project comes from an approved State Transportation Improvement Program (STIP). This project is included in the year 1993-1997 Transportation Improvement Program (TIP) of the North Jersey Transportation Coordinating Council (NJTCC). The NJTCC TIP is part of the STIP. As required by the [Clean Air Act Amendments] of 1990, the NJTCC TIP was analyzed to determine its effect on the regional pollutant[s] such as Ozone. The analysis was performed in close consultation with the [United States Environmental Protection Agency] and the New Jersey Department of Environmental Protection Agency [sic] (NJDEPE). The results of this analysis showed that there will be reduction in the total burden of Ozone precursors in analysis years 1996 and 2007 with the build TIP scenario compared to no-build. The TIP and the TIP ...

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