Citizens for Balanced Environment and Transportation, Inc., Successor in Interest of Committee to Stop Route 7 v. John A. Volpe

503 F.2d 601, 4 Envtl. L. Rep. (Envtl. Law Inst.) 20798, 6 ERC (BNA) 2089, 1974 U.S. App. LEXIS 6844

• Court: Court of Appeals for the Second Circuit
• Decided: September 16, 1974
• Docket: 1241, Docket 74-1730
• Status: Published

Opinions

PER CURIAM:

This is an appeal from an order which denied a motion seeking to enjoin the construction of the segment of Route 7 north from Danbury to New Milford, Connecticut until an environmental impact statement (EIS) has been filed in accordance with the National Environmental Policy Act, 42 U.S.C. § 4332(2)(C). The order is affirmed on the opinion of Judge Newman below.¹ 376 F.Supp. 806 (D.C.Conn.1974).

In Conservation Society of Southern Vermont, Inc. v. Secretary of Transp., 362 F.Supp. 627 (D.Vt.1973), appeal docketed, No. 73-2629 (2d Cir. 1973), Judge Oakes held that the EIS prepared under the supervision of the defendant Secretary of Transportation covering the Bennington to Manchester, Vermont segment of Route 7 was insufficient and barred construction of that portion until an EIS for the entire Route 7 corridor from Burlington, Vermont to Norwalk, Connecticut had been prepared. In his opinion, Judge Oakes made a general finding that federal highway officials have knowledge of the overall planning process by the state officials and that the states have taken advantage of federal highway planning money in connection with Route 7 improvement. 362 F. Supp. at 636. He further found “that there is no overall federal plan for improvement of the Route 7 corridor in the three states into a divided limited access superhighway.” Id.

The question before Judge Newman was whether or not the construction of the segment of Route 7 between Danbu-ry and New Milford constituted “federal action” within the meaning of 42 U.S.C. § 4332(2) (C). In a thorough opinion, he concluded that this portion of Route 7 was not to be deemed “federal action” since only state funds are to be used in its construction, and that therefore no EIS was required.

Judge Newman was fully aware of Judge Oakes’ opinion in Conservation Society. Since, the segment in Connecticut was specifically before the Connecticut District Court and not before the Vermont District Court (the State of Connecticut was not a party and did not appear in that action), we are not persuaded that Judge Oakes’ general findings override the specific finding below that no federal action was present. Thus we agree with Judge Newman that no EIS for this portion of Route 7 (Danbury to New Milford) is necessary prior to the construction of this challenged project.

The order below is affirmed.

1 . A permanent injunction preventing construction of Route 7 soutli from Danbury to Norwalk, Connecticut, until an EIS was prepared was issued by Judge Newman in Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731 (I).Conn.1972).