Conservation Law v. FHA, et al
Case Date: 06/03/1994
Court: United States Court of Appeals
Docket No: 93-1976
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June 3, 1994 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 93-1976 CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., ET AL., Plaintiffs - Appellants, v. FEDERAL HIGHWAY ADMINISTRATION, ET AL., Defendants - Appellees. ____________________ ERRATA SHEET The opinion of this court issued on May 23, 1994 is amended as follows: On the cover sheet, the caption should read: "Conservation Law Foundation, et al., Plaintiffs-Appellants" instead of "Conservation Law Foundation of New England, Inc., et al., Plaintiffs-Appellants." UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 93-1976 CONSERVATION LAW FOUNDATION, ET AL., Plaintiffs - Appellants, v. FEDERAL HIGHWAY ADMINISTRATION, ET AL., Defendants - Appellees. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Francis J. Boyle, Senior U.S. District Judge] __________________________ ____________________ Before Torruella, Cyr and Boudin, Circuit Judges. ______________ _____________________ Stephen H. Burrington with whom Conservation Law Foundation, _____________________ ___________________________ Molly Cochran, Sullivan & Worcester, John Marks and J. William W. _____________ ____________________ __________ _____________ Harsch were on brief for appellants. ______ Thomas F. Holt, Jr. with whom Laura Grant Schwartz, William ____________________ ____________________ _______ C. Nystrom and Kirkpatrick & Lockhart were on brief for appellees __________ ______________________ Dante E. Boffi, Jr., in his official capacity as Director of the Rhode Island Department of Transportation, and the Rhode Island State Planning Council. William B. Lazarus, Attorney, Department of Justice, with ___________________ whom Lois J. Schiffer, Acting Assistant Attorney General, Edwin _________________ _____ J. Gale, United States Attorney, Michael P. Ionnotti, Assistant _______ ____________________ U.S. Attorney, Mary Elizabeth Ward, Beverly Sherman Nash, and ____________________ _____________________ Jacques B. Gelin, Attorneys, Department of Justice, were on brief ________________ for appellees Federal Highway Administration; Gordon G. Hoxie, in his official capacity as Division Administrator for the Rhode Island Division of the Federal Highway Administration; and Arthur E. Williams, in his official capacity as Chief of Engineers of -2- the U.S. Army Corps of Engineers. Daniel R. Barney, Lynda S. Mounts, Ata Litigation Center, _________________ ________________ ______________________ Steven S. Rosenthal, Nancy F. Goodman, and Morrison & Foerster on ___________________ ________________ ___________________ brief for American Trucking Associations, Inc., amicus curiae. ____________________ May 23, 1994 ____________________ -3- TORRUELLA, Circuit Judge. Plaintiffs in this case _____________ appeal the denial of their motion for a preliminary injunction. The district court denied the injunction on the ground that the plaintiffs failed to show a likelihood of success on the merits of their underlying claims. See Narragansett Indian Tribe v. ___ __________________________ Guilbert, 934 F.2d 4, 5 (1st Cir. 1991). We review the district ________ court's denial of the preliminary injunction "'under a relatively deferential glass,'" and will disturb such a ruling only if we find the court made a manifest mistake of law or abused its discretion. Id. (quoting Independent Oil & Chem. Workers of __ _____________________________________ Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st ____________ _________________________ Cir. 1988)). After reviewing the record in this case and the arguments in the briefs, we conclude that the district court did not abuse its discretion or make any manifest errors of law when it found that plaintiffs had failed to establish a likelihood of success on the merits of their claims under the National Environmental Policy Act ("NEPA"), 42 U.S.C. 4321-4347; Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. 1344(a); Section 4(f) of the Department of Transportation Act ("DOTA"), 49 U.S.C. 303(c); and Section 176 of the Clean Air Act ("CAA"), 42 U.S.C. 7506(c). We therefore affirm the district court's denial of plaintiffs' motion for a preliminary injunction. Because the district court's opinion presents a thorough and accurate discussion of the facts of this case, we find it appropriate to incorporate that discussion into our -3- decision. -4- I. Introduction This litigation stems from the proposed construction of the Jamestown Connector, a four-lane, divided, controlled access highway across the island of Jamestown, Rhode Island which will connect the Jamestown-Verrazzano Bridge and the Pell (Newport) Bridge. Jamestown Island, lies in the middle of Narragansett Bay in what is known by some as the Route 138 corridor, a forty (40) mile stretch of roadways running from I- 95 in Richmond, Rhode Island to I-195 in Swansea, Massachusetts. The plaintiffs are the Conservation Law Foundation ("CLF"), Audubon Society of Rhode Island, Clean Water Action, Concerned Island Residents, DOT Watch, Environmental Council of Rhode Island, Save the Bay, Sierra Club, South Kingstown Neighborhood Congress, and West Side Association. Plaintiffs filed two separate actions, which have been consolidated, seeking to enjoin construction of the Jamestown Connector. The defendants are the Federal Highway Administration ("FHWA"), Gordon G. Hoxie in his official capacity as Division Administrator for the Rhode Island Division of the Federal Highway Administration, Arthur E. Williams in his official capacity as Chief of Engineers of the U.S. Army Corps of Engineers ("the Corps"), Dante E. Boffi, Jr. in his official capacity as Director of the Rhode Island Department of Transportation ("RIDOT"), and the State Planning Council. In total, plaintiffs allege violations of five federal statutes: the National Environmental Policy Act ("NEPA"), the Intermodal Surface Transportation Efficiency Act "(ISTEA"), the Clean Water Act ("CWA"), the Department of Transportation Act ("DOT"), and the Clean Air Act ("CAA"). II. Factual Background The history of this highway project dates back to proposed Interstate Highway 895 ("I-895"), which received original approval in December 1969 as part of the -5- Interstate and Defense Highway System. The original proposed 12.1 mile route spanned Narragansett Bay between Warwick and Barrington, Rhode Island. In 1974, FHWA approved a RIDOT proposal which recommended a substitute route. The proposed substitute I-895 essentially tracked Route 138, an undivided roadway dating from the early 1920's, from I-95 in Richmond, Rhode Island to I-195 in either Swansea or Fall River, Massachusetts. Route 138 is the only road crossing Narragansett Bay south of Providence, Rhode Island. In November 1975, RIDOT initiated an Environmental Impact Statement/Corridor Location Study for designated I-895. In April 1979, RIDOT published the I-895 Draft Environmental Impact Statement ("DEIS"). The 1979 DEIS recognized that Route 138 "was not intended to accommodate the types of vehicles, prevailing operating speeds, and the volumes of traffic" that it then carried. Following the publication of the DEIS, community comment was received at four public hearings. On February 5, 1982, the State of Rhode Island requested withdrawal of proposed I-895 from the Interstate Highway System. On December 30, 1982, FHWA approved Rhode Island's withdrawal request because I-895 was not "essential to the completion of a unified and connected Interstate System." (Fed.Def.Exh. 6) Much of the proposed I- 895 corridor, however, remained eligible for federal funds for substitute projects. The 1979 DEIS contained a separate section addressing the construction of a Jamestown Bridge replacement structure. Because of its functional obsolescence, increases in traffic volumes, skyrocketing maintenance costs and the need for a completely new concrete deck, RIDOT determined that the existing two- lane Jamestown Bridge needed replacement. The Surface Transportation Act of 1978 specifically allocated discretionary funding under the Highway Bridge -6- Replacement Program to implement the Jamestown Bridge replacement project. As a result, FHWA authorized the development of a site-specific Jamestown Bridge Environmental Impact Statement ("JBEIS"). The JBEIS, completed in May 1989, proposed a four-lane replacement bridge adjacent to the existing bridge and four- lane access roadways extending from Route 1A in North Kingstown to Helm Street on Jamestown. Following the decision to withdraw I- 895, RIDOT continued to examine the need for improvements throughout the Route 138 Corridor. RIDOT's analysis culminated in 1984 with the issuance of a Final Environmental Impact Statement ("FEIS") for the corridor. FHWA approved the FEIS on September 27, 1984. The 1984 FEIS study area encompassed Washington, Newport, and Bristol Counties in Rhode Island, as well as Swansea, Massachusetts. In Washington County, the FEIS proposed a mixture of upgrades to certain existing portions of Route 138, a no-build option for other portions of Route 138, and construction of new roadways in other areas of the corridor. On Jamestown Island, the FEIS proposed a four-lane reconstruction along the available right of way on Eldred Avenue (1.1 miles) and two possible four-lane alternatives for East Shore Road (1.1 miles). The FEIS recognized that the Jamestown Design Study Committee ("JDSC"), which had been formed in February of 1983, was considering the entire connector roadway system for Jamestown Island. Accordingly, the FEIS contemplated draft and final supplemental EIS documents for the project following decisions by JDSC and RIDOT. On Aquidneck Island, the 1984 FEIS recognized the need for improvements but proposed a no-build alternative and recommended further studies. Finally, the FEIS proposed a no-build option for the East Shore portion of the study area including Bristol County, Rhode Island and Swansea, Massachusetts. -7- Following the 1984 FEIS, the JDSC convened numerous public meetings on Jamestown and collected community reaction to the proposed cross-island roadway. Based upon community input, the JDSC recommended a conceptual plan to RIDOT in June 1984 which, with certain refinements, became known as Alternative B. Alternative B proposed a controlled access four-lane roadway extending from the Jamestown-Verrazzano Bridge along Eldred Avenue with interchanges at Helm Street and North Road and flowing into a new four-lane roadway located west of East Shore Road extending to the Newport Bridge. Based on the JDSC's recommendations, RIDOT completed a draft supplemental environmental impact statement ("DSEIS") in April 1986. The FHWA approved the DSEIS on April 22, 1986. The DSEIS considered six alternatives for a cross- island roadway on Jamestown: a No-Build Alternative, the Transportation Systems Management ("TSM") Alternative, two unlimited access roadways (Alternatives A and A1), and two limited access roadways (Alternatives B and C). The DSEIS identified Alternative B, now known as the "Jamestown Connector", as the preferred alternative. RIDOT circulated the DSEIS on May 23, 1986 and held a public hearing at the Jamestown Elementary School on June 26, 1986. Following the submission of the DSEIS, RIDOT began pursuing necessary permits for Alternative B from the Rhode Island Department of Environmental Management ("RIDEM"). Pursuant to provisions of the Administrative Procedure Act and Rhode Island's Freshwater Wetlands Act, a wetland public hearing was held on February 10, 1987 to resolve issues pertaining to wetland impacts and Alternative B. Following the hearing, RIDOT and RIDEM signed a consent agreement which modified Alternative B to minimize wetlands impact. The RIDEM Wetlands Public Hearing Officer incorporated the conditions of the -8- consent agreement into the final design and order rendered on April 30, 1987. The order specified conditional permit approval to alter freshwater wetlands. RIDOT completed a final supplemental environmental impact statement ("FSEIS") for the Jamestown Connector in July 1987 and FHWA approved the FSEIS on December 18, 1987. The FSEIS responded to comments received on the 1986 DSEIS and investigated the same six design alternatives, with some modifications, considered by the 1986 DSEIS. According to the FSEIS, traffic safety and drainage concerns rendered the No-Build Alternative and the TSM Alternative not viable. The unlimited access upgrade alternatives, A and A1, failed to separate local and through traffic, failed to maintain highway continuity, permitted continued development along the alignment frontage, and allowed for high traffic volumes, congestion and increasing accident rates. Alternative C affected the greatest acreage in the Windmill Hill Historic District and failed to attract support from Jamestown residents because of undesirable local access designs. Alternative B, meanwhile, provided the greatest benefits while minimizing adverse impacts to the residents and surrounding environment according to the FSEIS. As a result, the FSEIS identified Alternative B as the preferred alternative. On May 27, 1988, FHWA issued a Record of Decision ("ROD") on the FSEIS which expressly ratified the selection of Alternative B for further project development. The 1987 FSEIS also found Alternative B to be consistent with six other planned and committed highway projects within the Route 138 Corridor: the I-95 to Route 2 upgrade; the relocation of Route 138 from Route 2 to U.S. 1; the reconstruction of Route 138 from U.S. 1 to the Jamestown Bridge; the Jamestown Bridge Replacement; the Newport Circulator Project; and the Route 138 upgrading along East Main Road from Route 24 to Route 113. The -9- cumulative impacts of the projects located in Washington County and Jamestown (all projects except the Newport Circulator and the East Main Road upgrade) had been previously analyzed in the corridor-wide 1979 DEIS and 1984 FEIS. RIDOT proposed reconstruction of the two-lane roadway from I-95 to Route 2 in three phases. Phase one was completed in 1981 and the other two phases are in the preliminary design stage. RIDOT reevaluated the FEIS for the relocation of Route 138 from Route 2 to U.S. 1 in February 1991 and modified the original alignment. The roadway from Route 1 to the Jamestown Bridge, approved in the 1981 JBEIS, was constructed during 1992. The new Jamestown-Verrazzano Bridge replaced the Jamestown Bridge and opened to traffic on October 19, 1992. The Newport Circulator Project has been replaced by a series of lesser improvements expected to be forwarded with a request for a Finding of No Significant Impact ("FONSI") in Summer 1993. Finally, the FHWA approved improvements to the four-lane East Main Road on December 24, 1991 and selection of a consultant to begin final design is underway. The 1987 FSEIS also examined impacts to parklands and historic resources governed by Section 4(f) of the Department of Transportation Act ("DOT") and Section 106 of the National Historic Preservation Act. This evaluation focuses on the Windmill Hill Historic District and examined four build alternatives, a No-Build Alternative, and an Avoidance Alternative. Although the No-Build Alternative would not impinge upon historic resources, it failed to meet the project goals and was determined to be neither prudent nor feasible. All four of the build alternatives adversely effected the Windmill Hill Historic District. The FSEIS determined that Alternatives A and A1, both four-lane uncontrolled access roadways with at -10- grade intersections, carried far less short-term impacts on historic resources than the preferred alternative. These alternatives, however, failed to meet traffic service and safety concerns and permitted the possibility of future development which could have a far greater long-term impact on the historic district. The FSEIS determined that Alternative C, a limited access highway on a different alignment, required the use of more historic resources than Alternative B without providing offsetting traffic or safety benefits. Finally, although an Avoidance Alternative, designed to avoid all protected Section 4(f) resources on Jamestown Island, was feasible, the FSEIS determined that it was not prudent because of "a number of disruptive consequences involved in this or any alternative that avoids the Windmill Hill Historic District." Although it found that Alternative A1 caused the least impact to the historic district, the Rhode Island Historical Preservation Commission recognized that the separation of through and local traffic achieved with Alternative B necessitated considering this alternative even though it had greater short-term Section 4(f) impacts. The 1987 FSEIS ROD concluded that there was no prudent or feasible alternative to the use of land from the Windmill Hill Historic District and Alternative B included all possible planning to minimize harm resulting from such use. On June 8, 1988, FHWA authorized the acquisition of parcels to establish a right-of-way along Eldred Avenue from Seaside Drive to North Road. By November 7, 1990, RIDOT had acquired at least 143 of the 202 parcels necessary to build the Jamestown Connector. In October, 1986 RIDOT submitted to the Corps the first of a series of applications for a permit for the filling of wetlands in connection with the Jamestown Connector. (Plaintiffs' Exh. -11- 22 and 23.) Although the Corps issued a public notice regarding its permit review for the Jamestown Connector on November 29, 1990, no public hearing was held in connection with the permit application. On May 22, 1992, the Corps completed an Environmental Assessment ("EA") and statement of findings for the purposes of issuing a Section 404 permit to fill wetlands. The EA "considered all factors relevant to th[e] proposal including cumulative effects." The environmental assessment minimized wetlands impacts by replacing the Helm Street overpass with a frontage road to address local access concerns. Based on the evaluation of environmental effects discussed in the 1987 FSEIS, the Corps determined that the "decision on [the Section 404] application [was] not a major federal action significantly affecting the quality of the human environment" and therefore required no separate environmental impact statement. The Corps concluded that Alternative B without the Helm Street overpass was the least environmentally damaging practicable alternative. As a result, on May 21, 1992, the Corps issued a final Section 404 permit authorizing RIDOT to fill approximately 4.6 acres of wetlands to construct the Jamestown Connector. Throughout and following the Corps permit approval process, the JDSC continued to hold periodic meetings to evaluate additional proposed refinements to the Jamestown Connector design. In a JDSC meeting held on May 7, 1992, Thomas Todd, an architect and Jamestown resident, presented an alternative design featuring an at-grade, signalized intersection at the crossing of Eldred Avenue and North Road. Mr. Todd's conceptual layout incuded two travel lanes in each direction and separate left and right turn lanes along Eldred Avenue. Minutes of the meeting reflect that Mr. Todd also had contacted the Jamestown Police and had been informed that there had been 213 accidents (78 involving injury) on Route 138 in Jamestown over -12- the previous five year period. Records at the Newport Bridge Toll Plaza indicated that approximately 31 million trips had been made over that same time period. At the same meeting, the JDSC formed an architectural review committee, with Mr. Todd as a member. Over the next six months, RIDOT incorporated certain profile and architectural adjustments suggested by the architectural review committee into the Jamestown Connector design. FHWA conditionally approved the receipt of bids for the Jamestown Connector on July 31, 1992. Plaintiffs commenced this action on October 8, 1992. RIDOT opened bids for the Jamestown Connector on December 11, 1992. On April 21, 1993, RIDOT issued a conditional notice to proceed with construction activity to its contractor, Tilcon Gammino. After final notice to proceed was given, construction began on May 13, 1993. On May 21, 1993, plaintiffs moved for a temporary restraining order ("TRO") to enjoin further construction. On May 25, 1993, this court granted plaintiffs' TRO application which restrained further construction activity within the frontage road area along Eldred Avenue. The court vacated the TRO on June 8, 1993. Defendants have moved to dismiss plaintiffs' Clean Air Act claim for lack of jurisdiction and failure to state a claim upon which relief can be granted. Plaintiffs, in turn, have moved for summary judgment on their Clean Air Act and Intermodal Surface Transportation Efficiency Act claims. Because these motions raise substantially the same issues as plaintiffs' application for preliminary injunction, the court defers ruling on them and considers all claims under the preliminary injunction standard. Conservation Law Found. v. Federal Highway Admin., 827 F. Supp. ________________________ _______________________ 871, 872-77 (D.R.I. 1993) (footnotes omitted). I. DISCUSSION I. DISCUSSION -13- Plaintiffs challenge the district court's findings under NEPA, 404 of CWA, 4(f) of DOTA, and the CAA. Conservation Law Found., 827 F. Supp. at 877-91. We bear in mind _______________________ that the district court reviewed the actions of several administrative agencies throughout much of its opinion. The actions of such agencies shall not be overturned unless "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A). In particular, the administrative actions taken in this case under NEPA, 404 of CWA, 4(f) of DOTA and 176 of the CAA are subject to a highly deferential abuse of discretion standard of review. Marsh _____ v. Oregon Natural Resources Council, 490 U.S. 360, 377-78 & n.23 ________________________________ (1989) (NEPA); Sierra Club v. Marsh, 976 F.2d 763, 769 (1st Cir. ___________ _____ 1992) (NEPA); Norfolk v. United States Army Corps of Eng'rs, 968 _______ __________________________________ F.2d 1438, 1445-46 (1st Cir. 1992) ( 404 of the CWA); Communities, Inc. v. Busey, 956 F.2d 619, 623-24 (6th Cir.), __________________ _____ cert. denied, 113 S. Ct. 408 (1992) ( 4(f) of the DOTA) (citing ____ ______ Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, ________________________________________ _____ 416 (1971)); Sierra Club v. Larson, 2 F.3d 462, 466-69 (1st Cir. ___________ ______ 1993) (substantial deference given to EPA's interpretation of the CAA); Puerto Rican Cement Co. v. United States EPA, 889 F.2d 292, _______________________ _________________ 296-98 (1st Cir. 1989) (EPA's construction of the CAA given "controlling weight" unless it is "plainly erroneous"). For the following reasons, we uphold the district court's findings in this case. A. NEPA CLAIMS A. NEPA CLAIMS ___________ -14- 1. Logical Termini 1. Logical Termini The district court found that none of the defendants violated its respective obligations under NEPA to prepare proper Environmental Impact Statements ("EISs") for the Jamestown Connector highway project. In particular, the court rejected plaintiffs' argument that the defendants unlawfully segmented the geographic area of analysis in the 1987 Jamestown Connector EIS ("Jamestown FSEIS") and that defendants failed to consider the cumulative impacts of highway projects all along the Route 138 Corridor. Federal Highway Administration ("FHWA") regulations provide that an EIS is of proper geographic scope if the project it analyzes connects "logical termini," has "independent utility" and does not restrict "consideration of alternatives." 23 C.F.R. 771.111(f). The district court found that the Jamestown Connector project satisfied all three criteria and, as a result, the 1987 Jamestown FSEIS was of the appropriate scope. The plaintiffs take issue only with the court's determination of the first prong (the so-called "logical termini" prong). "Termini" include crossroads, population centers, major traffic generators, or similar highway control elements. 37 Fed. Reg. 21,810. The district court found that the two bridges on each side of the Jamestown Connector (entering and exiting Jamestown island) are logical enough termini to uphold the agencies' determination that the connector was a proper geographic area for environmental analysis. In particular, the -15- court accepted defendants' argument that the bridges are traffic generators or traffic control devices. Plaintiffs contend that the bridges do not qualify as "crossroads" or "traffic generators," but instead are merely indistinguishable strips of the highway that happen to pass over water. According to the plaintiffs, because most traffic merely passes over the bridges and through the island on its way to and from cities in Connecticut and Massachusetts, and to and from various highway interchanges that are located several miles away from the bridges, the bridges themselves neither control nor generate any traffic but merely carry it. Thus, the bridges are allegedly not a "beginning or end" such that they could reasonably be considered "termini." Plaintiffs present a strong argument, but, given that we are reviewing this case for an abuse of discretion, we cannot find that the district court erred in upholding the agencies' determination of termini. See Swain v. Brinegar, 542 F.2d 364, ___ _____ ________ 369 (7th Cir. 1976) ("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 bridges may not "control" or "generate" traffic in the strict sense of those words, but they do represent the only way that cars can get onto and off of the island. Thus, traffic passing through southern Rhode Island is controlled by the existence and condition of those bridges. Although the FHWA is not free to consider every bridge or culvert in a highway system to be a -16- suitable end point for purposes of conducting EIS analysis, two bridges over Narragansett Bay, a considerably large body of water, can reasonably constitute a major "highway control element." 37 Fed. Reg. 21,810. Ultimately, when viewed through the lens of basic common sense, two bridges on either side of an island appear to be perfectly logical termini to us. None of the authorities cited by the plaintiffs indicates that "logical termini" must be located at interchanges or major metropolitan areas. We do not believe that those decisions which found indistinguishable strips of highway to be improper termini for EIS purposes apply to the present case. See ___ Swain 542 F.2d at 369-70; Indian Lookout Alliance v. Volpe, 484 _____ _______________________ _____ F.2d 11, 19-20 (8th Cir. 1973); Patterson v. Exon, 415 F. Supp. _________ ____ 1276, 1283 (D. Neb. 1976). We also do not find any authority for plaintiffs' assertion that the district court erred as a matter of law by considering the geographic situation of Jamestown Island in its determination that the bridges are logical termini. Indian Lookout Alliance, 484 F.2d at 18-19, for example, says ________________________ nothing about the propriety or impropriety of considering special geographic features in making logical termini analysis. Rather, the case simply states that courts should look to the nature and purpose of the project in determining which termini are logical. Id. In this case, one of the purposes of the Jamestown Connector __ is to facilitate traffic passing from one side of the island to the other. From this perspective, the bridges are logical endpoints. -17- The district court also considered the two other elements in 23 C.F.R. 771.111(f) ("independent utility" and "reasonable alternatives") when it found that the Jamestown FSEIS was of the proper scope. The court found that these two factors carry more weight in this case than the "logical termini" prong. Plaintiffs argue that this finding is error because courts can only accord "logical termini" less importance where the highway project is in a major metropolitan area. The relevant cases concerning the reduced weight afforded to the "logical termini" prong do involve highway projects in metropolitan areas. See, ___ e.g., Coalition on Sensible Transp. Inc., v. Dole, 826 F.2d 60, ____ ___________________________________ ____ 69 (D.C. Cir. 1987); Piedmont Heights Civic Club, Inc. v. ____________________________________ Moreland, 637 F.2d 430, 440 (5th Cir. 1981). The courts in those ________ cases, however, did not reduce the weight afforded to the termini prong simply because the area in question was urban as opposed to rural. Rather, the courts reduced the importance of the termini factor in those cases because it was difficult to determine where projects began and ended in convoluted urban highway systems. Coalition on Sensible Transp., 826 F.2d at 69; Piedmont Heights, _____________________________ _________________ 637 F.2d at 440. Therefore, the district court did not err in stating that, as a matter of law, the "independent utility" and "reasonable alternative" prongs are more important "where logical termini are not so easily determined." Conservation Law Found., ______________________ 827 F. Supp. at 879. Although the Jamestown Connector does not involve the usual spaghetti of highway interchanges often found in urban centers, it does involve sufficient special -18- circumstances -- the traversing of an island in the middle of Narragansett Bay -- to warrant a finding that "logical termini are not so easily determined." 2. Cumulative Impact 2. Cumulative Impact The plaintiffs next contend that the district court erred in finding that the Jamestown FSEIS properly considered the cumulative effects on the environment of all projects along the entire Route 138 corridor as required by NEPA and the regulations promulgated by the Council on Environmental Quality ("CEQ"). 40 C.F.R. 1508.7 & 1508.25(a). The district court stated that the Jamestown FSEIS "concluded that the Jamestown Connector was consistent with six other planned and committed projects in the Route 138 Corridor." Recognizing that this was not, in itself, a complete cumulative analysis, the court then added that the Jamestown FSEIS also referenced the FHWA's 1984 Route 138 EIS ("1984 FEIS") and the original I-895 draft EIS ("1979 DEIS") which did conduct a sufficient cumulative impact analysis.1 The ____________________ 1 Plaintiffs take issue with the district court's use of a quote, Conservation Law Found., 827 F. Supp. at 880, from _________________________ Fritiofson v. Alexander, 772 F.2d 1225 (5th Cir. 1985), stating __________ _________ that a "full-blown environmental analysis of the impacts of other actions" is not required. Although the plaintiffs are correct that this quote refers to a preliminary Environmental Assessment and not to a more in-depth EIS, the quote does interpret the very same regulations applied in this case. In any event, the quote is not a crucial part of the district court opinion because the court goes on to explain why the EISs do in fact contain a full cumulative effects analysis. Similarly, the following sentence on page 880, referring to a satisfaction of "statutory minima" under Piedmont Heights, 637 F.2d at 441, although pertaining to ________________ the NEPA statute in general instead of the specific CEQ regulations at issue here, is still applicable to this case because it addresses the basic question of what information can be used by agencies to analyze cumulative effects of various -19- district court noted that the 1979 DEIS considered the effects of the entire Route 138 corridor and that the 1984 FEIS analyzed projects in Washington County and Jamestown, including the "general location and mode choice for what would become the Jamestown Connector." Conservation Law Found., 827 F. Supp. at _______________________ 881. Plaintiffs first of all contest the court's conclusion that the 1984 FEIS and the 1979 DEIS conducted the necessary cumulative analysis. They do not take issue with the substance of the analysis in these reports or with the thoroughness of the environmental review conducted by the defendants. Instead, plaintiffs challenge the geographic scope of the area considered in those reports, arguing that because parts of the Route 138 corridor were left out of the various EISs, their analyses cannot be completely cumulative. They claim that the 1984 FEIS did not analyze proposed actions for the Route 138 corridor east of Washington County (which is basically the Newport Rhode Island area where the highway continues east of Jamestown Island after crossing the eastern bridge off the island). While the 1979 DEIS did analyze this area, it did not consider the exact same highway routes and projects that are presently contemplated for the area (i.e., the original projects for that area have since been ____ discarded). Consequently, plaintiffs point out that neither EIS ____________________ projects. We think it is reasonable, and plaintiffs present no caselaw to the contrary, for agencies to consider prior studies, draft or otherwise, in their EISs and to include them by reference. -20- analyzed two of the six projects listed within the Jamestown FSEIS as part of the Route 138 corridor (the Newport Circulator and East Main Road upgrade).2 For us, the bottom line is that the relevant agencies conducted an analysis of the environmental impact of highway construction projects along Route 138. The 1979 and 1984 EISs contain in-depth discussions (300 pages worth in the 1979 DEIS and 200 pages in the 1984 FEIS) covering a wide range of environmental concerns surrounding highway construction in the area of Route 138. For its part, the Jamestown FSEIS explicitly referenced the two prior EISs and placed the Jamestown connector in the context of the entire Route 138 corridor project. The 1979 and 1984 EISs may not have covered precisely the same geographical areas or projects that are now being built or proposed in conjunction with the Jamestown Connector, but they did sufficiently consider the incremental impact of individual ____________________ 2 Plaintiffs also claim that the 1984 FEIS "deferred analysis of the Jamestown Connector," by noting several times that the process for deciding on the construction design and route for the Jamestown Connector was ongoing and that no decision had been made. Therefore, plaintiffs argue, the 1984 FEIS did not properly consider the cumulative impact of all projects taken together in its environmental analysis. This argument strikes us as a red herring. The 1984 FEIS clearly contemplated some kind of highway construction between the two bridges on Jamestown Island and it explicitly discussed the fact that a more in-depth environmental study of the island would be done in a supplemental EIS. A full description of the environment on Jamestown island was included in the 1984 FEIS. The Jamestown FSEIS was subsequently written as a supplement to the 1984 FEIS and both EISs contemplated that the two would be read together. The district court found this to be sufficient to satisfy the cumulative impact analysis requirement and we see no abuse of discretion in this ruling. -21- sections of Route 138 construction "when added to other past, present and reasonably foreseeable future actions." 40 C.F.R. 1508.7. We therefore do not believe the district court abused its discretion in rejecting the plaintiffs' contention that the aforementioned discrepancies in the EISs violated NEPA. Plaintiffs nevertheless maintain that even if the combined analyses contained in all the EISs constitute proper cumulative impact review, the process of referencing them in the Jamestown FSEIS does not comport with the cumulative impact requirements in the CEQ regulations. According to the plaintiffs, a particular EIS cannot incorporate the findings of other EISs unless it is part of a proper "tiering" process as provided for in 23 C.F.R. 771.111(g). Under 777.111(g): For major transportation actions, the tiering of EISs as discussed in the CEQ regulation (40 C.F.R. 1502.20) may be appropriate. The first tier EIS would focus on broad issues . . . . The second tier would address site-specific details . . . . The district court found the "tiering" of the Jamestown FSEIS on top of the 1984 FEIS and 1979 DEIS to be proper in this case. Plaintiffs claim this finding is erroneous because: (1) the 1979 DEIS was just a draft having no legal effect; (2) the 1984 FEIS did not qualify as a programmatic evaluation upon which smaller projects could be tiered; and (3) the Route 138 Corridor is not a sufficiently large, wide-ranging federal project for which tiering is appropriate. Although the plaintiffs are correct that the 1979 DEIS -22- has no legal effect and cannot, by itself, serve as the first tier in the EIS process, nothing that the plaintiffs point to precludes a final EIS from referring to the reports and data contained in a draft EIS to analyze cumulative impacts of governmental actions. Thus, the information in the 1979 DEIS can be considered a part of the cumulative impact analysis for Route 138. The plaintiffs further argue that the 1984 FEIS was not sufficiently comprehensive to constitute a programmatic first tier that can support the second tier in the Jamestown FSEIS. To support this contention, plaintiffs basically restate their earlier argument that the 1984 FEIS failed to analyze all the proposed projects along the entire Route 138 corridor. To briefly restate our rejection of this argument, the 1984 FEIS not only addressed the Route 138 corridor in a comprehensive fashion, it explicitly contemplated that a supplemental EIS, the Jamestown FSEIS, would be prepared in conjunction with the larger EIS. We see no abuse of discretion in finding this to be a proper application of the tiering regulations. Cases relied on by the plaintiff to support its contention that the 1984 FEIS is incomplete, Kleppe v. Sierra Club, 427 U.S. 390, 410 (1976); ______ ____________ National Wildlife Fed. v. Appalachian Reg. Comm'n, 677 F.2d 883, ______________________ _______________________ 888 (D.C. Cir. 1981), discuss when a single, programmatic EIS is required, but they do not dictate the precise manner and content of those programmatic EISs. In this case, it is reasonable to conclude that the 1984 EIS considered together the combined -23- consequences of proposed actions along Route 138. See ___ Appalachian Reg. Comm'n, 677 F.2d at 888. _______________________ Finally, plaintiffs claim that the Route 138 Corridor cannot be tiered because it does not qualify as a "major transportation action." Because plaintiffs point to no case authority for imposing a "major transportation action" requirement in the tiering context, we find this assertion to be unfounded. Plaintiffs cite cases involving "wide ranging federal projects" for which broad "programmatic" EISs have been prepared. See Kleppe v. Sierra Club, 427 U.S. 390 (1976) (development of a ___ ______ ___________ national coal leasing program); Tenakee Springs v. Block, 778 ________________ _____ F.2d 1402 (9th Cir. 1985) (land use plans for the Tongass National Forest); National Wildlife Fed. v. Appalachian Reg. _______________________ _________________ Comm'n, 677 F.2d 883 (D.C. Cir. 1981) (the 13-state Appalachian ______ Highway System). None of these cases say anything about the requirements for tiering, nor do they say anything to indicate that a highway project, like Route 138, cannot qualify as a "major transportation action" or even a "wide ranging federal project." Consequently, plaintiffs provide no basis for us to find a manifest error of law with respect to the district court's tiering ruling. Even if NEPA did require that a first tier EIS must cover a "major transportation action," Route 138 appears to qualify. Plaintiffs describe the Route 138 project as merely a "40-mile state highway that is being upgraded with the help of federal funds." Even if this characterization is accurate, the -24- district court did not abuse its discretion in finding forty miles of highway crossing Narragansett Bay and passing through several different islands to be a "major transportation action." 3. Actions of the Army Corps of Engineers |