Timothy W. Swain and Katherine A. Swain v. Claude S. Brinegar, Individually and as Secretary of Transportation for the United States

542 F.2d 364, 6 Envtl. L. Rep. (Envtl. Law Inst.) 20609, 9 ERC (BNA) 1086, 1976 U.S. App. LEXIS 7944, 9 ERC 1086

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 20, 1976
• Docket: 74-1625
• Status: Published

Opinions

CUMMINGS, Circuit Judge.

Plaintiffs brought this suit to enjoin further action on acquisitions and construction of a 15-mile segment of a proposed Federal Aid Highway project consisting of a 42-mile supplemental freeway connecting Peoria and Lincoln, Illinois. At present, the two cities are connected only by Illinois Route 121, a two-lane highway. The Lincoln-Peoria proposal was designated FAP 406 and divided into two components. The northerly portion runs from Route 1-74 south of Peoria to a point between Delavan and Hopedale, Illinois, on the south. The southerly portion is the immediate subject of this suit and runs 15 miles from the point between Delavan and Hopedale south to an interchange with Interstate 1-55 just northwest of Lincoln. The northern terminus of this 15-mile segment would connect with an already constructed 3V2 mile stretch at the south end of the other segment of FAP 406.

This project developed as a result of a 1967 study of the long-range needs of Illinois for additional highways. That study recommended that the state construct an 1800-mile trunk system of interstate roadways and supplemental freeways designed to connect every Illinois city of over 25,000 population. FAP 406 is one of those connecting roads.

Plaintiffs are the owners of a 440-acre farm, part of which lies in the path of the new highway. Their major contentions are that the defendants, in planning and describing to the public FAP 406, failed to comply with the Federal Aid Highway Act, 23 U.S.C. §§ 101 et seq., and the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq. The plaintiffs argued that the procedure used to select the corridor in which FAP was to be located was arbitrary and in violation of the legislative policy of full public disclosure in the Federal Aid Highway Act. In addition, the plaintiffs challenged the adequacy of the Environmental Impact Statement (EIS) because preparation had been improperly delegated to a state agency and because, in any event, the document was insufficient under the requirements of NEPA. After a hearing, the district court rendered an opinion on the merits in defendants’ favor. Swain v. Brinegar, 378 F.Supp. 753 (S.D.Ill. 1974). Last year a unanimous panel of this Court validated the corridor selection procedures for this part of the 42-mile supplemental freeway to be constructed from Lincoln to Peoria, Illinois. However, by a divided vote, this Court held that there was an improper delegation of authority to the Illinois Department of Transportation with respect to the EIS required by 42 U.S.C. § 4332(2)(C). 517 F.2d 761, 776-779.

Thereafter, Congress amended NEPA by providing in Public Law 94-83 that an EIS “shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official” if (1) the state agency has statewide jurisdiction, (2) the federal official furnishes guidance and participates in its preparation, (3) the federal official independently evaluates such statement prior to its approval and adoption, and (4) after January 1, 1976, the federal official notifies and solicits the views of “any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts” upon such entity.¹ The amendment, however, does not relieve the federal official “of his responsibilities for the scope, objectivity, and contents of the entire” EIS. 89 Stat. 424; 42 U.S.C.

§ 4332(2)(D). To determine the effect of this amendment on our prior ruling, we granted a rehearing en banc.

It is clear that the decision of the panel can no longer stand in light of the NEPA amendment. The EIS was prepared by the Illinois Department of Transportation, an agency having statewide authority. The record reveals that the draft and final statements were adequately reviewed by the Federal Highway Administration (FHWA) and that it furnished sufficient guidance to the state. The federal participation was not limited to the FHWA, for the appendix to the EIS discloses that the document was considered by each federal agency with an interest in the matter. Most importantly, the FHWA complied with the purposes of NEPA, as amended, by accepting and exercising final authority for the evaluation of the environmental impact of the proposal. See Senate Report No. 94-52, pp. 10-11, 2 U.S.Code Cong. & Admin.News, pp. 859, 868 (1975); Conservation Society of Southern Vermont, Inc, v. Secretary of Transportation, 531 F.2d 637, 639 (2d Cir. 1976).

Since the amendment to NEPA contained in Public Law 94-83 overruled our prior holding that the delegation of authority by the federal agency to the Illinois Department of Transportation was unlawful, we must rule on the sufficiency of the final EIS prepared by the Illinois Department of Transportation and approved by the Federal Highway Administration on August 9, 1973. This involves determining not only whether the EIS complied with the requirements of NEPA that it address certain factors, but also whether the scope of the EIS is at least as broad as the scope of “the ‘federal action’ being taken.” Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 322, 95 S.Ct. 2336, 45 L.Ed.2d 191 (SCRAP II). We find no flaw with the EIS to the extent it evaluates the 15-mile segment between Delavan and Lincoln. However, the federal action here concerns the construction of FAP 406, the whole supplemental 42-mile freeway, and not merely the Delavan-Lincoln segment. Since the EIS before us considers only the southern 15-mile segment, it was insufficient under NEPA and the pertinent regulation.

Under Section 102(2)(C) of NEPA, the EIS is to include a “detailed statement” on — :

“(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. * * * (42 U.S.C. § 4882(2X0))

Our study of the present EIS, consisting of forty-six pages of textual material and numerous maps, charts and pictures, persuades us of the statutory adequacy of the EIS if this 15-mile segment of FAP 406 were to be considered alone. The EIS gives the requisite “hard look” at the proposed action. SCRAP II, supra, 422 U.S. at 322, 95 S.Ct. at 2336.

The EIS considered the reasonable alternatives to building the proposed 15-mile segment including:

“a.) upgrading existing Illinois Route 121 to a full-access controlled high speed facility, b.) constructing a full-access controlled Freeway on a new alignment which would serve the same traffic as existing Illinois Route 121 and c.) not to construct the highway improvement.” (Exhibit 2 to Appendix ID)

In the EIS, the need for a new road was specifically explained on the basis of the growth in traffic and the expansion of the communities to be served by the highway. The benefits and drawbacks of the alternative locations, such as upgrading Route 121, were weighed against the advantages and disadvantages of the suggested path. We believe that this section of the EIS fully complies with NEPA’s mandate. Friends of the Earth v. Coleman, 513 F.2d 295, (9th Cir. 1975); Trout Unlimited v. Morton, 509 F.2d 1276, 1285-1286 (9th Cir. 1974); Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289, 296-297 (8th Cir. 1972), certiorari denied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160.

Further, the EIS considered all of the relevant environmental consequences of the proposed highway, including the taking of 700 acres of farmland, the increase in noise and air pollution and the harm caused by any changes in the land grading. An EIS need not review all possible environmental effects of a project. It is sufficient if it considers only those which are “reasonably foreseeable.” Carolina Environmental Study Group v. United States, 166 U.S.App. D.C. 416, 510 F.2d 796, 798-799 (1975); Trout Unlimited v. Morton, supra, 509 F.2d at 1283. Finally, the district judge gave satisfactory reasons for holding that the EIS discussion of the adverse environmental effects was sufficiently detailed. 378 F.Supp. at 759-760. This aspect of the EIS therefore meets the standards set forth in Sierra Club v. Froehlke, 486 F.2d 946, 952-953 (7th Cir. 1973); see also Fayetteville Area Chamber of Commerce v. Volpe, 515 F.2d 1021, 1027-1028 (4th Cir. 1975), certiorari denied, 423 U.S. 912, 96 S.Ct. 216, 46 L.Ed.2d 140; Daly v. Volpe, 514 F.2d 1106, 1111-1112 (9th Cir. 1975); Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 851-853 (8th Cir. 1973).

However, we cannot agree that it was proper to confine the EIS to this 15-mile segment. Based on the standards articulated in NEPA, the regulation and the cases, it is clear that under the facts of this case, the proposed federal action being taken includes funding the entire 42 miles of FAP 406. Therefore, the judgment of the district court must be reversed.

Initially, the state defendants assert that this point was neither raised in the pleadings nor “at any time in the proceedings before the filing of Appellants’ brief following the hearing before the trial court” (Br. 21). But plaintiffs fully attacked the EIS with respect to this project in paragraphs 15, 17(i) and 18 of their complaint; this very point was argued before the trial court judge and was considered in his opinion. 378 F.Supp. at 760. Therefore, it is ripe for decision here.

We are supported in our conclusion that “the proposed action” within the meaning of Section 102(2)(C) of NEPA covers the entire 42 miles of FAP 406 by the pertinent regulation contained in the Federal Highway Administration’s Policy and Procedure Memorandum (PPM) 90-1, setting forth guidelines for implementing Section 102(2)(C) of NEPA. Section 6 of that PPM provides:

“The highway section² included in an environmental statement should be as long as practicable to permit consideration of environmental matters on a broad scope. Piecemealing proposed highway improvements in separate environmental statements should be avoided. If possible, the highway section should be of substantial length that would normally be included in a multiyear highway improvement program.” (See 23 C.F.R. § 771.5(a) for the current wording.)

The purpose of the PPM standards and those fashioned by the courts is to insure that any assessment of the environmental impact of the project will be meaningful. Segmentation of highway projects, although necessary to make their design and construction more manageable, can limit the usefulness of environmental impact studies in two significant ways. First, the project can be divided into small segments; although the individual environmental impact might be slight, the cumulative consequences could be devastating. Second, the location of the first segment may determine where the continuation of that roadway is to be built. In such a case, preparation of the EIS for the extension is no more than a formal task because the decision-maker’s ability to choose a different route no longer exists. On the other hand, an EIS need not consider the long-term visions of highway designers and urban engineers when they suggest comprehensive plans which may take years to construct, if they are to be built at all. The information contained in an EIS for such a comprehensive plan is likely to be speculative, irrelevant to the specific question before the decision-maker, and outdated by the time the choice must be made. To require the preparation of such an EIS would surely impose an undue burden on the state and federal agencies.

The purpose of NEPA is to require that federal decision-makers consider the environmental consequences of their actions before deciding to proceed. Their source of information, the EIS, must therefore take a pragmatic and realistic view of the scope of the action being contemplated. The view must be one neither confined by the literal limits of the specific proposal nor one unbounded except by the limits of the designer’s imagination. The task of the court is not to decide where to draw the line, but to review the matter to ascertain whether the agency has made a reasonable choice. The courts which have faced this problem — determining the scope of a proposed highway project — have looked for certain key attributes of the highway proposal: whether the highway has an independent utility, whether it has logical termini, and whether it forecloses any avenues for expansion. Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, supra, 531 F.2d at 639; Daly v. Volpe, supra, 514 F.2d at 1108-1109 (9th Cir. 1975); Indian Lookout Alliance v. Volpe, 484 F.2d 11, 17 — 20 (8th Cir. 1973); Named Individual Members of San Antonio Conservation Society v. Texas State Highway Department, 446 F.2d 1013, 1022-1024 (5th Cir. 1971), certiorari denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136.

For instance, in Indian Lookout Alliance v. Volpe, supra, the district court had held that an EIS was required for 14 miles of the Freeway 518 project to run from Missouri line at Keokuk, Iowa, north and westerly to the Minnesota line. In reversing and requiring a longer “umbrella” EIS, the Eighth Circuit held that the 14-mile segment was an inappropriate one for an EIS because “it does not have an independent utility of its own, which would require that it end in major termini, i. e. present major highways or cities.” 484 F.2d at 19. Therefore, the court concluded that the EIS would have to include another project and an extension thereof, apparently 38 miles in all, so that the proposed Freeway 518 would intersect with U.S. 218, a major highway. 484 F.2d at 20.

In his well-reasoned opinion in Indian Lookout Alliance, Judge Gibson agreed with the plaintiffs there that division of a highway into segments such as here “precludes meaningful compliance with the statutory mandate to assess in detail environmental impacts, as each segment that is approved limits the alternatives for each succeeding segment.” 484 F.2d at 17-18. In language exactly fitting our situation, the court added:

“If the major objective of a proposal is to connect two cities by expressway, then these two termini should determine the proper scope of the EIS” (idem).

Taken together, the factors used by the courts and PPM 90-1 suggest that the scope of the proposed project can be determined by applying the following three standards:

1. Does the proposed segment have a substantial utility independent of future expansion?

2. Would its construction foreclose significant alternative routes or locations for an extension from the segment?

3. If, as here, the proposed segment is part of a larger plan, has that plan become concrete enough to make it highly probable that the entire plan will be carried out in the near future?

The answers to these questions in the instant case require us to hold that the EIS must cover the entire 42-mile freeway.

In this case, the proposed 15-mile segment would have no utility independent of the connection of 1-74 between Peoria and Morton in the north. The northern terminus of this segment is near no major crossroad, population center or traffic generator or similar major highway control element as specified in Section 3(a) of PPM 90-1 (note 2 supra). The northern terminus ends in the country at no logical or major terminus. Unlike the district court, we cannot consider the 3V2 mile completed segment as a “major highway control element” and therefore a logical terminal within the regulation, for its south and north ends are merely nearby points in the country.

Second, the history of this project indicates that building the southern section would effectively limit choices for building the northern part. The routing of this segment was chosen to meet the 3V2 mile completed segment of the northern component of FAP 406. Obviously, the location of the northern component will be determined because of the placement of the southern component, thus tainting any separate environmental evaluation of the northern component.

Third, the southern component is part of a firm 42-mile supplemental freeway. The United States has advised us that “Another project [the remaining northern component of FAP 406] is underway to connect that [3V2 mile] completed freeway³ to Interstate 74 near Morton [in the Peoria area], Illinois,” and that a draft EIS for that project has been approved and adopted by the Federal Highway Administration. The Government concedes that the 15-mile segment under review here “is a part of a highway which will eventually connect 1-55 [at Lincoln] with 1-74 [at Peoria]” (Government Br. 16-17). Federal funding has been or will be sought for all of the 42-mile supplemental freeway. Therefore, it is clear that all of FAP 406 is an ongoing project which constitutes the “ ‘federal action’ being taken” under SCRAP II (422 U.S. at 322, 95 S.Ct. 2336) or the “proposed action” under NEPA. The two components are really one enterprise.

While, as seen, FAP 406 is part of an overall 1800-mile trunk system of interstate highways and supplemental freeways designed to connect every Illinois city of over 25,000 population, we agree with the Eighth Circuit in Indian Lookout Alliance that the overall project is not subject at the outset to the requirements of NEPA. Such plans are still visionary and subject to revision. 484 F.2d at 18-19. However, the 42-mile stretch of FAP 406 is a sufficiently final proposal to require an EIS under NEPA and PPM 90-1, supra. See SCRAP II, 422 U.S. at 320, 95 S.Ct. 2336; Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, supra, 531 F.2d at 639; Named Individual Members of San Antonio Conservation Society v. Texas Highway Dept., supra, 446 F.2d at 1023-1024 (5th Cir. 1971).⁴

Although we have been advised that another EIS has been prepared with respect to the northerly component of FAP 406, its contents are not in this record. It is no answer to say that together the two make up for any deficiency in the present EIS, for the combined statements of course do not consider the overall environmental effects of the 42-mile freeway.

It is thus apparent that the scope of the proposed federal action is the funding of a highway connecting Interstate 55 near Lincoln in the south with Interstate 74 near Peoria in the north. Since the potential environmental impacts of the two components are interrelated, they must be evaluated together. This will not place a great burden on the draftsmen of the new EIS, for most of the work has been done in preparing the separate statements. All that is needed is a supplement to this EIS to consider the overall environmental effect of the proposed 42-mile freeway.

Judgment reversed and cause remanded to the district court with directions to retain jurisdiction pending submission of a proper EIS by the Federal Highway Administration. Upon submission of that EIS, the district court shall make such further order as it deems appropriate, consistent with this opinion.

1 . With respect to this fourth condition, the statute also provides if there is any disagreements on such impacts, the federal official must prepare a written assessment of such impacts and views for incorporation into the EIS.

2 . Section 3(a) of that PPM defines a highway section as:

“A substantial length of highway between logical termini (major crossroads, population centers, major traffic generators, or similar major highway control elements) as normally included in a single location study.” For the current version, see 23 C.F.R. § 771.3(g).

3 . This refers to the completed southern stretch of the northerly component of FAP 406.

4 . See also our earlier opinion. 517 F.2d at 776, n.12. Daly v. Volpe, supra, 514 F.2d at 1111, is not to the contrary, for the challenged segment had independent utility and met various criteria set out in PPM 90-1, supra.