Opinion

Citizens Committee Against Interstate Route 675 v. Lewis

542 F. Supp. 496
13 Envtl. L. Rep. (Envtl. Law Inst.) 20
11 Fed. R. Serv. 334
1982 U.S. Dist. LEXIS 17522

Court: District Court, S.D. Ohio
Filed: Jun 10, 1982
Status: Published
Author: Rice
On the bench: Rice
Cited by: 24 cases
Authority: More cited than 84.6%

holding that it is reasonable to use old population data, even when more recent numbers are available, absent some showing of environmental significance of failure to use more recent data

How later courts described this case

holding that it is reasonable to use old population data, even when more recent numbers are available, absent some showing of environmental significance of failure to use more recent data
merits of claim based on alleged inadequacies of FEIS considered despite plaintiff’s delay in making claim
census data does not require supplementation of EIS

Written by the judges who cited it.

The opinion

RICE, District Judge.

Table of Contents

I. Findings of Fact_______________ 506-521

II. Scope of Review -------------- 521-522

III. Standing_____________________ 522-526

IV. Laches_______________________ 526-538

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V. Socio-Economic Impacts_________ 528-538

VI. Reasonable Alternatives to 1-675-- 538-550

VII. Other Alleged Inadequacies in the FEIS__________ 550-572

A) FEIS Assessment of Need for 1-675 ..... 550-566

B) Adequacy of Discussion of Noise Impacts_____________ 566-571

C) Response to Agency Comments ____________________ 571-572

VIII. The 1981 Lewis Decision________ 572-583

IX. Bad Faith — Count IV___________ 583

X. Alleged Violation of 23 U.S.C. § 134 — Count III_______ 583-585

XI. Footnotes____________________ 506-584

OPINION; EXPANDED OPINION WITH DETAILED FINDINGS OF FACT AND CONCLUSIONS OF LAW; JUDGMENT TO BE ENTERED IN FAVOR OF DEFENDANTS ON ALL ASPECTS OF PLAINTIFFS’ COMPLAINT; PLAINTIFFS’ REQUEST FOR INJUNCTIVE RELIEF DENIED; TERMINATION ENTRY

The captioned cause came on to be heard upon the Plaintiffs’ request for preliminary and permanent injunctive relief, enjoining construction of a 13.5 mile segment of Interstate 675, in Greene and Montgomery Counties, from U.S. 35, south to Interstate 75.

According to prior agreement between Court and counsel, the oral hearing upon the Plaintiffs’ request for a preliminary injunction was combined with trial upon the merits, pursuant to Fed.R.Civ.P. 65(a)(2). The trial upon the merits was held on April 1st and 2nd, 1982, and the captioned cause submitted for decision upon the testimony adduced at trial, the pretrial and post-trial memoranda of counsel and of the amicus curiae, the voluminous administrative record and the exhibits admitted into evidence.

Based upon the reasoning, Findings of Fact and Conclusions of Law set forth in detail below, this Court finds for the Defendants and against the Plaintiffs, on the entirety of the Plaintiffs’ complaint. The Plaintiffs’ request for injunctive relief is, therefore, denied.

Before addressing the specific substantive issues which have been raised herein, the Court will first set forth its Findings of Fact, and the general principles of law which are applicable to review of administrative actions and to claims arising under the National Environmental Policy Act.

Following these matters, the Court will then discuss certain standing issues which have been raised herein, the laches argument presented by Defendants, and the substantive allegations of the Complaint. It should also be noted that the jurisdiction of the Court has not been contested.

I. FINDINGS OF FACT

The following items constitute the Court’s Findings of Fact, based upon the administrative record, testimony, exhibits, and depositions received in connection with the trial of the within case. In addition, all other factual conclusions made throughout the text of this Opinion are incorporated into the Court’s Findings of Fact.

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Chronology

1. In 1957, the United States Bureau of Public Roads (BPR) (predecessor of the Federal Highway Administration) authorized a belt route as part of the interstate system for the Dayton area, which was eventually designated as 1-675. A consulting engineering firm was hired to determine whether the beltway should be located on the east or west side of Dayton. (Gov. Ex. F, § 1.01, p. 1/1.)

2. Late in the Fall of 1959, the State negotiated an agreement with a Consulting Engineering firm for the preparation of a Preliminary Engineering Report which was to investigate the question of location on the east or west side of Dayton, and develop a proposed route for 1 — 675. This agreement was approved by the BPR on March 29, 1960. (Gov. Ex. F, § 1.02, p. 1/1.)

3. In April, 1960, the Ohio Department of Highways (ODH) (predecessor of the Ohio Department of Transportation) and the BPR met with officials from the Montgomery-Greene County Regional Transportation Committee (RTC) (predecessor of the Transportation Coordinating Committee) and local communities to discuss possible route corridor locations of the beltway. (Gov. Ex. F, § 1.03, p. 1/1.)

4. The Consultant prepared and submitted to the State an informal report (dated 31 May 1960) which discussed a number of different physically feasible route corridors west of Dayton and east of Dayton. This report was summarized in a Preliminary Engineering Report. Control factors considered in the Studies were: concentrated residential, commercial or industrial development; public lands such as schools, parks, and military bases; semi-public properties such as churches, cemeteries, and golf courses. Proposed future land uses were not necessarily considered as controlling features, but known major planned developments within the various corridors were considered in the selection of a recommended corridor. This report recommended that the belt route be located on the east side of Dayton. (Gov. Ex. F, § 1.04, p. 1/1; Gov. Ex. S.)

5. In July 1960, the BPR approved the general location of the recommended east corridor location for further engineering studies. (Gov. Ex. F, § 1.05, p. 1/2.)

6. In December 1961, the consulting engineering firm completed and submitted a preliminary engineering report which included a recommended location within the eastern corridor and some minor (non-relevant) alternatives. (Gov. Ex. F, § 1.06, p. 1/2; Gov. Ex. T.)

7. Copies of the consultant’s report were reviewed by the State, the BPR and local officials. (Gov. Ex. F, § 1.07, p. 1/2.)

8. In 1962, local officials took exception to the route location recommended in the 1961 preliminary engineering report. The RTC developed a “close-in” route through Kettering and the eastern section of Dayton, called the Southern Expressway. This recommendation was concurred in by the State. The BPR did not approve the “close-in” route, since it judged that it did not meet the criteria for an interstate belt route. Subsequently, after further studies by the RTC and others, agreement was reached in 1963 on a location which essentially follows the one presently established for 1-675. This location was approved by the BPR in January 1965, subject to additional studies and evaluation of the merits of possible alternate alignments and a public hearing on January 22, 1965. (Gov. Ex. F, §§ 1.08-1.10, pp. 1/2-1/4; Gov. Ex. U.)

9. On March 9, 1965, a public hearing was held on the proposed alignment for 1-675. Many comments and suggestions were presented for consideration by local and state officials. The general alignment of 1-675 was approved by the Director of Highways on April 19, 1965. On July 13, 1965, the BPR approved the routing for 1 — 675 on the general alignment east of Fairborn, Ohio. (Gov. Ex. F, §§ 1.11-1.12, p. 1/4; Gov. Ex. V.)

10. Concurrently with the development of the proposed 1-675 alignment, the RTC was developing a Regional Transportation Plan. “The Regional Transportation Plan, Volume II,” (Gov. Ex. I) was completed in

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September 1965. This plan included 1-675, in its present corridor, as part of the planned system of highways for Greene and Montgomery Counties. (Gov. Ex. F, § 1.13, p. 1/4; Gov. Ex. I.)

11. Two consulting engineering firms were hired by ODOT in 1966 to develop construction contract plans for 1-675. As a result of public comments received at the public hearing and the communications received by the State concerning the alignment, the consultants prepared studies of alternates to the proposed alignment south of U.S. 35, identified at the March 9, 1965 public hearing. A report which took into consideration regional and community growth, public facilities and services, displacement of residents and businesses, fast, safe and efficient transportation and highway costs and user benefits was issued on July 12, 1966. After reviewing this report, the State conducted a second public hearing which was required due to certain minor and nonrelevant alignment changes recommended in the report. On February 10, 1967, the second public hearing was held where the alignment and adjustments were presented. Subsequently, construction plans were prepared for the corridor defined at this hearing, which is essentially the existing alignment of 1-675. (Gov. Ex. F, §§ 1.14-1.17, pp. 1/4-1/5; Gov. Ex. V.)

12. For right of way acquisition and construction purposes, 1-675 was divided into individual Construction Sections. These seven sections are identified on Gov. Ex. N. Construction Sections Nos. 1-3 are south of U. S. 35 and Construction Sections Nos. 4^-7 are north of U. S. 35.

13. On May 23, 1966, the BPR authorized the ODH to proceed with “right of way incidentals” for Construction Sections Nos. 1-6. This authorization enabled the ODH to prepare parcel descriptions and appraisals for the parcels to be acquired, but did not authorize acquisition of the right of way. (Gov. Ex. G, pp. 3, 5.)

14. The Federal Highway Administration (FHWA) authorized the Ohio Department of Transportation (ODOT) to begin full right of way acquisition for the Construction Sections as follows:

Construction Date Section No. Description

3-12-71 6 North Fairfield Road to S.R. 235

6-18-71 3 Wilmington Pike to U.S. 35

12-27-71 7 S.R. 235 to 1-70

8-25-72 5 Kemp Road to North Fairfield Road

11-3-72 4 U.S. 35 to Kemp Road

8-14-73 1 1-75 to Normandy Lane

(Gov. Ex. G, pp. 51, 79, 80, 90, 114.)

15. By August 14, 1973, the FHWA had authorized the ODOT to begin full right of way acquisitions for all of 1-675 with the exception of Construction Section No. 2, from Normandy Lane to Wilmington Pike. With respect to this construction section, a number of advance right of way acquisitions were authorized for hardship and protective buying reasons on a parcel by parcel basis. The first parcel was authorized on October 13, 1969 and the last parcel was authorized on May 6, 1976. A total of 11 parcels were authorized during this period. Of these parcels, only six were authorized subsequent to August 15, 1973. (See paragraph 21, below, for significance of this date) (Gov. Ex. G, pp. 37, 93, 96, 99, 105, 109.)

16. On January 29, 1970, the FHWA authorized the ODOT to advertise for receipt of bids for a bridge project carrying Loop Road over 1-675. This project was within the limits of Construction Project No. 2. The bridge project was completed on October 23, 1970 at a cost of $214,521. (Gov. Ex. F, §§ 1.19, 2.2.13, pp. 1/6, 2.2/4.)

17. On May 17, 1972, the FHWA authorized the ODOT to advertise for receipt of bids for Construction Section No. 6. This 5.83 mile construction section from North Fairfield Road to State Route 235 was opened to traffic on October 30, 1974 at a total cost of $10,856,427. (Gov. Ex. F, § 1.19, p. 1/6.)

18. On April 25,1973, FHWA authorized ODOT to advertise for receipt of bids for

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Construction Section No. 7. This 3.55 mile construction section from State Route 235 to 1-70 was opened to traffic on October 29, 1975 at a total cost of $13,428,389. (Gov. Ex. F, § 1.19, p. 1/6.)

19. These three construction projects discussed in paragraphs 16, 17 and 18, totalling $24,499,337, did not require the preparation of an Environmental Impact Statement (EIS). Therefore, the EPA requirements did not apply to these projects.

20. Concurrently with the preparation of the construction plans, properties along the proposed 1-675 corridor were being purchased and developed by private interests. In many cases these private developments were coordinated with the proposed highway. Ohio Department of Transportation records reveal that at least 56 separate developments were coordinated with the highway plan. The boundary lines of many of the developments are coincident with the right-of-way lines for the proposed freeway. See Exhibit XIV and Exhibit XV. (Gov. Ex. F, § 1.18, p. 1/6.)

21. On June 23, 1973, the FHWA and the National Wildlife Federation entered into a consent agreement whereby FHWA agreed that it would not grant any “proposed FHWA authorization” after August 15, 1973 for major projects without completing an environmental reassessment to determine if an EIS was required. The consent agreement provided that the FHWA could authorize right of way acquisitions in hardship cases or for protective buying in extraordinary circumstances. The consent agreement did not rescind nor restrict prior approvals or authorizations given by the FHWA on active projects. (Gov. Ex. A, pp. 1-3.) Prior to this time, although the NEPA had become effective on January 1, 1970, there was no requirement to file an EIS in a situation in which the FHWA authorization was sought for the building of a highway. Subsequent to this date, the FHWA was required to comply with the requirements of the NEPA, which included the preparation, circulation and approval of an EIS. Pursuant to the consent agreement, the FHWA made an environmental reassessment on October 24, 1973, concluding that an EIS should be prepared for all of 1-675 which was not then under construction; namely, the Construction Sections 1-5, from 1-75 to North Fair-field Road. (Gov. Ex. A, pp. 4-9; Gov. Ex. F, § 1.20, p. 1/6.)

22. As of October 24,1973, approximately 80% of the right of way parcels for project No. 1-675-8(13) had been acquired. On the remaining projects, total right of way acquisition was around 24%.

23. From 1974 through 1976, a Draft Environmental Impact Statement (DEIS) (Gov. Ex. B) was prepared by a consultant under the ODOT’s direction and with considerable input from the FHWA. The DEIS was made available to the public on December 22, 1976 and to the Council on Environmental Equality (CEQ) on December 23, 1976. The notice of submission to CEQ and of public availability was published in newspapers of general circulation in the Montgomery-Greene County area on January 7, 1977. The final deadline for public and agency comments was set for February 10, 1977. (Gov. Ex. A, pp. 11-12, 24-26.)

24. Many comments, both favorable and unfavorable, were received from the public and agencies concerning the DEIS. By memorandum dated February 28, 1977, the Office of the Secretary of Transportation advised the FHWA that it had received the DEIS but had no comments. (Gov. Ex. A, pp. 16-19; Gov. Ex. F, p. 9.2/29.)

25. As a result of comments received from agency and public review of the DEIS, various changes were incorporated into the Final Environmental Impact Statement (FEIS). Those changes included the following:

(A)

Updated population and traffic projections consistent with those used for other programs in the Dayton area planning process

— traffic assignments updated in connection with the development of the year 2000 long range transportation plan by the Transportation Committee (TCC). This plan considered three alternate transportation systems for the year

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2000: high highway-low transit (HH-LT), medium highway-medium transit (MH-MT), and low highway-high transit (LH-HT). Following extensive public input, the MH-MT alternate was supported by all local jurisdictions and selected by the Transportation Coordinating Committee. Although the design year traffic assignments resulting from the year 2000 transportation plan study were seen to be somewhat lower than the design year traffic assignments used in the DEIS, the study concluded that 1-675 was still warranted from a traffic demand standpoint.

(B)

Noise impact

— as the result of the updated traffic volumes referred to above, the number of areas where design noise levels would be exceeded was reduced from 29 to 22. Noise abatement measures had been studied and the construction of nine barriers was recommended as part of the highway improvement.

(C)

1-675 redesigned in order that no land from Grant Park would be used for construction purposes.

(D)

Air quality

— updated

air quality analysis using the latest emission factors.

The previous analysis was updated using emission factors set forth in EPA’s Supplement 8. The results were coordinated with and reviewed by the Ohio EPA and were found to be consistent with the State of Ohio implementation plan as to the attainment and maintenance of desirable air quality conditions.

(E)

Restoration of traffic circulation within the “Concept Four” subdivision by means of a grade separation

—certain design changes made, the major one being provisions for a grade separation structure carrying 1-675 over Vineland Trail in order to restore community cohesion.

(F)

Flood hazard evaluation

—a 100 year frequency storm evaluation concluded that increased width of the Holes Creek Channel relocation was required, thus resulting in redesign of all bridges over Holes Creek to provide greater waterway openings. (Gov. Ex. A, pp. 29-33, and references to EIS, Gov. Ex. F, contained therein.)

(G)

Ecology

— eight separate coordination activities with the United States Fish and Wildlife Service, including two joint field reviews, resulted in agreement on construction of aerators, low flow channels and pools, planting of trees along stream banks and extent of channel work. The relationship between the proposed highway improvement and the pond in Pondview Park was clarified. The section dealing with run-off from deicing chemicals was rewritten.

(H)

Alternatives

— the various references to alternatives were strengthened and updated, mainly by inclusion of the results of the year 2000 long range transportation plan update.

(I)

Public participation and planning process

— reference was made to the discussions on the continuing nature of the transportation plan update and the opportunity for public participation in the planning process.

26. The FEIS was adequate in that:

(A) There was adequate consideration of the need for the highway, including specifically traffic patterns and population growth;

(B) there was adequate consideration of noise abatement programs;

(C) there was adequate consideration of the relationship between 1-675 and development resulting from the construction of the highway;

(D) there was adequate consideration of alternatives to the proposed 1-675; and

(E) there was no necessity for consideration in the FEIS of urban-socioeconomic impacts upon the City of Dayton from the proposed highway. Assuming

arguendo

that socio-economic impacts should have been considered, they were adequately discussed in the FEIS.

27. On October 31, 1978, ODOT formally submitted the FEIS to the FHWA Ohio Division Office. After review by the Division Office, the FEIS was submitted with a recommendation for approval to the FHWA Regional Office on November 9, 1978. (Gov. Ex. A, pp. 27-28). On December 20,

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1978, the FHWA Regional Office transmitted the FEIS to FHWA’s Washington Office with a recommendation that the Washington Office concur in the Regional Office’s proposed approval of the FEIS. The Washington Office of the FHWA found the FEIS adequate and on January 16, 1979, submitted the FEIS to the Office of the Secretary of the Department of Transportation for concurrence. (Gov. Ex. A, pp. 34-36.) DOT Order 5610.1B, ¶ 9(c)(1), (5) provides that for highway projects such as 1-675, prior concurrence of the Regional Office’s approval of an FEIS must be obtained from both the Washington Office of FHWA and the Office of the Secretary. (Gov. Ex. 0.)

28. On March 23, 1979, United States Transportation Secretary Brock Adams advised the ODOT of President Carter’s urban policy, stating that the Federal Government must support the continued vitality of the nation’s urban centers. In light of that urban policy, Secretary Adams requested that the ODOT solicit the views of the Miami Valley Regional Planning Commission (MVRPC) concerning the impact of 1-675 on the City of Dayton, by supplying answers to the following five questions:

(A) What are the expected benefits and adverse impacts to the City of Dayton of the construction of 1-675? In particular, what are the anticipated effects on current business and employment in the city, especially the central business district, and on opportunities for future business and employment growth? In addressing these questions, consideration should be given to possible plans of businesses currently located in Dayton to build in the 1-675 corridor if the road is constructed, as possibly reflected in land ownership in this corridor;

(B) What will be the likely impacts of the proposed project on lower income residents of Dayton, other socially disadvantaged segments of the population, and minority businesses?

(D) What benefits and possible adverse impacts would the completion of 1-675 have on the metropolitan area in general that may reflect directly on the economic and social vitality of Dayton?

(E) In light of all relevant information, including particularly the answers to the above questions, what conclusions does the MVRPC reach regarding the desirability of constructing 1-675 as planned or with modification?

(Gov. Ex. A, pp. 37-38.)

29. On May 24,1979, MVRPC responded to the request of Secretary Adams by submitting a report entitled

“Analysis of Impacts of 1-675 East upon the City of Dayton, Minorities, Low and Moderate Income Persons and Urban Sprawl.”

(Gov. Ex. C.) The report concluded that “there is no impact methodology for assessing” the question of how completion of 1-675 will affect the retail environment of the Central Business District. (Gov. Ex. C, p. 5.) The report goes on to state that “[mjeasuring the price impact of 1-675 East on the City of Dayton housing market is difficult.”

(Id.,

p. 12.) Neither is there a reliable methodology that “permits the prediction of a number of jobs

which will be drawn from the City of Dayton

or identifies the jobs that

would go to the City of Dayton

if 1-675 were not built” ...

(Id.

at 15, emphasis in original.) The report also states that “[i]t is impossible to determine what 1-675 will do to the competitiveness of minority business firms vs. non-minority firms which locate along 1-675.”

(Id.,

p. 24.) The MVRPC Chairman, in a memorandum transmitting the report, frankly conceded that the “technology for undertaking such an urban analysis report is scant.”

(Id.,

May 16, 1979 Memorandum of Nora Lake, p. 4.) The report and accompanying resolution endorsed full completion of 1-675 as proposed and directed that negotiations concerning nine mitigating actions be encouraged between the affected local governments and the applicable state and federal agencies. (Gov. Ex. A, pp. 50-52,

see also,

pp. 43 — 48, staff reports behind letter.) Plaintiff Dean Lovelace submitted comments concerning this report. (Gov. Ex. C, App. A; Lovelace Ans. to Interrog. 22.)

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The nine mitigating factors were as follows:

(A) Encourage the prime contractor on the 1-675 project to subcontract at least 10% of the direct labor to a minority business enterprise (or combinations thereof) in the Dayton area;

(B) Have the U. S. Department of Housing and Urban Development give high priority to earmarking Section 8 new unit funds for planning units in the 1-675 corridor;

(C) Encourage local units of government along the 1-675 east corridor to adopt MVRPC’s areawide housing opportunity plan by resolution prior to approval of any remaining segment of the interstate, if they have not done so already;

(D) Encourage all local units of government having development control along the 1-675 corridor to adopt the regional plan, framework for change, by resolution to assure that intensive land development within their jurisdictions will be limited to urban service areas as shown in the plan;

(E) Encourage all local units of government to submit all developments within a mile radius of 1-675 freeway interchanges to MVRPC and TCC for review and comment;

(F) Encourage all local units of government along the 1-675 corridor to sign MVRPC’s affirmative fair and equal housing plan;

(G) Encourage an expanded regional transit authority (RTA) for Montgomery County;

(H) Encourage local units of government to negotiate agreements or establish mechanisms to share additional tax revenues due to development associated with construction of interstates;

(I) Encourage the City of Dayton to commit itself to developing a transit and pedestrian emphasis on Main Street in the Dayton Central Business District and USDOT to commit urban initiative study funds to this effect.

These nine mitigating factors have been addressed between local, state and federal governmental agencies and entities, with the result that some success has been achieved as of the date of the trial. These nine mitigating objectives have at least been begun or, in the case of the transit expansion objective, implemented. In terms of the other objectives and mitigating factors, there is progress in varying degrees in each of the objectives, even though the objectives were never accepted at the federal level.

(See

testimony of Jack Jenson, Executive Director of the TCC.)

30. The urban impact studies were not made part of the FEIS nor circulated for comment.

31. On June 21,1979, the City of Dayton submitted to Secretary Adams its statement on the mitigating conditions that it thought necessary to minimize what it believed to be the adverse fiscal and economic impacts of 1-675 on the City of Dayton. The City of Dayton advocated building I-675 only north of U. S. 35. (Gov. Ex. A, pp. 64, 67-85.)

32. On October 11, 1979, the FHWA Deputy Administrator, John Hassell, wrote a letter to Ohio Governor Rhodes outlining the three options available to Ohio concerning 1-675. Hassell advised that the State could: (1) proceed with completion of I-675; (2) withdraw the uncompleted portion of 1-675 in accordance with 23 U.S.C. § 103 (e)(4), and transfer funds to support other area transportation needs; or (3) proceed with completion of 1-675 to U. S. 35 and withdraw the remainder. (Gov. Ex. A, pp. 86-90.)

33. On November 29, 1979, Secretary Neil Goldschmidt issued a Decision Memorandum which approved 1-675 only with respect to that segment of the highway south from its present terminus at North Fairfield Road to an intersection with U. S. 35. He disapproved the proposed project south of U. S. 35 to 1-75. Secretary Goldschmidt also requested that state, local and regional officials develop alternative approaches to the transportation needs in the 1-675 corridor south of U. S. 35. He concluded that the FHWA should indicate to Governor Rhodes that it would entertain

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a request from the Governor to initiate withdrawal and substitution proceedings for that portion of 1-675 south of U. S. 35. (Gov. Ex. A, pp. 95-100.)

Secretary Goldschmidt made no determination concerning the adequacy of the final EIS, in terms of its compliance with either NEPA, the regulations enacted thereunder or prevailing case law.

34. On December 11, 1979, Charles Swinburn, Acting Assistant Secretary for Policy and International Affairs, concurred in the FEIS consistent with Secretary Goldschmidt’s November 29, 1979 Decision Memorandum (approving the construction of 1-675, south to U. S. 35) and directed that the Decision Memorandum be made part of the FEIS. (Gov. Ex. A, pp. 101-102.) On December 28, 1979, the FHWA Regional Administrator, through his designee, signed the title sheet of the FEIS and filed the FEIS with the United States Environmental Protection Agency (USEPA). The FEIS which was then filed is the same FEIS which was found acceptable on July 6, 1981 by FHWA Administrator Barnhart, with the concurrence of Assistant Secretary for Policy and International Affairs, Judith Connor. The Plaintiffs did not file any objections to adequacy of the FEIS in 1979. (Gov. Ex. A, pp. 110-111; Pl.Interrog.)

35. On January 7,1980, the FHWA Ohio Division formally notified the ODOT of the FEIS limited approval and Secretary Goldschmidt’s Decision Memorandum. On February 8, 1980, ODOT wrote the USEPA and stated its position on what it considered as the impropriety of Secretary Goldschmidt’s decision. (Gov. Ex. A, pp. 112, lMlie.)

36. The FEIS was published in the

Federal Register

on January 11, 1980, with the review period ending February 11, 1980.

37. On February 22, 1980, the ODOT formally distributed the FEIS to agencies and to the public. In its distribution memorandum, the ODOT stated that the Secretary’s Decision Memorandum and the ODOT’s disclaimer were considered part of the FEIS. (Gov. Ex. A, pp. 117-119.)

38. On March 14, 1980. the FHWA Ohio Division notified the ODOT to stop all preliminary engineering work on construction contract plans for that portion of 1-675 South of U. S. 35. (Construction Sections Nos. 1 through 3.) On May 13, 1980, the FHWA Ohio Division notified the ODOT not to initiate any new right of way negotiations for that portion of 1-675 south of U. S. 35. (Gov. Ex. A, p. 120; Gov. Ex. G, p. 118.)

39. On March 25, 1980, the Transportation Coordinating Committee (TCC) requested the FHWA’s concurrence in its decision to use the previously determined year 2000 socio-economic and land use forecasts for its study of alternatives to construction of 1-675, south of U. S. 35. The TCC’s request was based upon a report

(Analysis of Projected and Proposed Growth in 1-675 Corridor)

which showed that a redistribution of previously forecasted population growth was unnecessary. The TCC’s position was based on observed growth trends in the region to that date and the regional consensus that alternative transportation improvements were needed in the corridor as a first priority. On April 7, 1980, after reviewing the TCC analysis, the FHWA Ohio Division concurred. (Gov. Ex. A, pp. 124^131.)

40. On July 7, 1980, the TCC transmitted to the ODOT a report entitled

“Supplemental Analysis for Interstate Route 675, GRE-675-5.87/675-7.43.”

(Gov. Ex. D; Gov. Ex. A, p. 132.) This report dealt with Construction Section Nos. 4 and 5, from North Fairfield Road to U. S. 35. The report was written in response to Secretary Goldschmidt’s November 29, 1979, decision wherein he requested additional information on improved transit service including high occupancy vehicle lanes (HOV) on U. S. 35 and on the north portion of 1-675 in order to serve Wright-Patterson Air Force Base (WPAFB) and Wright State University (WSU). Major findings of the report included: (a) HOV lanes on U. S. 35 and 1-675 were not justified and (b) transit needs in the 1-675 corridor would be adequately met. The report was forwarded to the Ohio Division FHWA on July 25, 1980

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and to Region 5, FHWA on August 8,1980. (Gov. Ex. A, pp. 132-134, Gov. Ex. D.)

41. On August 12, 1980, the ODOT submitted to the Ohio Division FHWA a summary of comments received as the result of the circulation of the FEIS. The preponderance of comments were in favor of constructing 1-675 as proposed. The ODOT also requested that Secretary Goldschmidt’s November 29,1979 decision be set aside and that the FEIS be approved as submitted. (Gov. Ex. A, pp. 135-149.)

42. On August 6, 1980, the TCC sent a report entitled “An

Analysis of the Year 2000 Demographic Forecasts in Relation to Current Trends

(Gov. Ex. E, App. C) to the Washington Office of the FHWA. This report concluded that no significant change in traffic volumes would occur within the 1-675 corridor if TCC’s year 2000 forecasts were reprocessed in light of the 1980 preliminary census count.

(Id.)

Specifically, the report stated:

In spite of the decrease in population from 1970 to 1980 in the two-county area, the number of dwelling units increased significantly, the number of registered passenger cars increased, labor force increased and both vehicular miles of travel and traffic counts increased. When one reviews our year 2000 projections vs. currently available data, one can see that the travel variables are growing at a trend similar to those projected. The two specific items which are significantly lower than projected are total population and population per dwelling unit. If one compares the rates established by dividing today’s variables by today’s population with the projected variables divided by a population projection adjusted downward to reflect the recent trends, one will find that those rates remain basically constant. The suggestion is that the probable per capita rates with respect to labor force and registered vehicles will remain rather constant for the next twenty years. Since these variables are the controlling factors in trip production, it is our conclusion that the existing year 2000 forecasted trips would not change significantly.

It has been suggested that recent publicity concerning potential job losses in the area are reflective of the need to lower our expectations of travel needs in the year 2000. In the past decade this region has experienced significant loses of industrial employment, yet the total employment picture has remained relatively stable over the past decade. This experience suggests to us that we can expect to recover in the next several years from those job losses presently anticipated. The report shows that our employment has changed from basic industry to service industry, but that the jobs and therefore the trips remain.

The Urban Planning Division of FHWA also analyzed these figures and concluded that the figures on traffic volumes within the 1-675 corridor which were being used to evaluate other alternatives were reasonable. (Gov. Ex. E, p. II — 2.)

43. On September 10, 1980, the ODOT forwarded to the Ohio Division of the FHWA, a report entitled

“An Analysis of Transportation Alternatives In the 1-675 Corridor (US 35 South to 1

— 75).” (Gov. Ex. E.) This report was forwarded to Region 5, FHWA on September 10, 1980. (Gov. Ex. A, pp. 150-153.) The report was prepared by the TCC in response to Secretary Goldschmidt’s Decision Memorandum wherein he requested alternative approaches to the transportation needs in the 1-675 corridor south of U. S. 35.

The report considered 15 alternatives, of which 7 were given detailed review. The opportunity for broad citizen participation concerning alternatives to 1-675 was made available by the TCC. The report contained a discussion encompassing five major elements — urban impact, energy, minority neighborhood effects, alternatives and improvements to existing systems. Such salient topics as demographic patterns, transit service, local input, public participation and criteria for evaluating alternatives were contained therein. A TCC analysis of the developmental growth patterns for the Dayton area indicated no significant effect

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on traffic forecasts whether or not 1-675 was included in the regional transportation plan. The report indicated that, in July of 1980, the TCC had performed another analysis of forecast perimeters based on preliminary 1980 census relation data and concluded no significant changes in traffic volumes would occur in the 1-675 corridor should the 1980 census data be used for forecasting input. In a September 10, 1980, cover letter from the Division Administrator to the Regional Administrator of the FHWA, the following language is contained,

We recognize there are differences between the population forecast for the region and the preliminary 1980 census data. However, all planning for the region including transportation has been based on consistent socio-economic forecasts. In the normal course of the planning process, forecasts are updated as more current information becomes available. The analysis included in the report of the year 2000 demographic forecast shows that the 1980 population within the 1-675 corridor has been growing and is reasonably close to the 1980 forecast for that area. In addition, other facts affecting trip generation, such as vehicle registration, dwelling units and employment after 1975, have been increasing, as has travel. Since the affected corridor has been experiencing growth, we believe the traffic forecasts are within an acceptable range and further analysis at this time would not be productive. Therefore, we recommend that the population and traffic forecast contained in the report be accepted.

Plaintiffs Mione and Righter attended several of these meetings. (Mione Ans.Interrog. 22; Righter Ans.Interrog. 22.) Based upon this report, the TCC’s first priority solution was a request for the Secretary to reverse his decision not to build 1-675 south of U. S. 35. (Gov. Ex. E; Gov. Ex. A, p. 175-6.)

44. On September 26, 1980, Secretary Goldschmidt wrote to Fred F. Frecker, Chairman of TCC, regarding the alternatives report. (Gov. Ex. E.) Secretary Goldschmidt informed the TCC that he believed no evidence had been developed that would justify reconsideration of his November 29,1979 decision to disapprove the FEIS for 1-675 south of U. S. 35. He advised the TCC that a decision to formally withdraw 1-675 was the responsibility of the TCC and the Governor of Ohio and he encouraged the TCC to begin this withdrawal/substitution process. (Gov. Ex. A, pp. 154-156.) This letter was not received by the ODOT at that time.

45. Pursuant to the directions contained in Secretary Goldschmidt’s letter of September 26, 1980, the TCC immediately began consideration of withdrawal/substitution options. (Weir Dep. Ex. 4) but never responded formally to the letter from Goldschmidt. (Larson Dep., pp. 15-16.) The TCC drafted a letter for the signature of Governor Rhodes, requesting withdrawal/substitution on October 14, 1980. (Weir Dep. Ex. 4.)

46. The ODOT did not receive a copy of the October 14, 1980 letter until later in October and on October 23,1980, Defendant Weir mailed a letter to Jack Jenson of the TCC expressing his displeasure at the October 14th letter, and specifically with the implication that it was prepared by the Governor. In his letter, Weir clarified the withdrawal procedure and provided examples of how to accomplish same. (Weir Dep. Ex. 4.)

47. On November 4, 1980, Ronald Reagan was elected President. He was inaugurated on January 20, 1981.

48. On November 6,1980, during a regularly scheduled meeting of the TCC, the TCC voted to proceed with attempts to secure approval of its original objective and first priority, i.e., the construction of 1-675 as initially proposed. The resolution was made because of comments in the press by the new vice-president that the new administration would reconsider the 1-675 project.

49. Leon N. Larson has been Director, Office of Environmental Policy, Washington Office of the FHWA since August of 1980 (Larson dep., p. 4). He is responsible for advancing the FHWA projects through

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the EIS state and assuring compliance with NEPA.

(Id.

at 5.) On or about March 13, 1981, Larson drafted a letter to the ODOT for Federal Highway Administrator Barn-hart’s signature. The letter indicated that it would be appropriate to re-examine the 1-675 proposal, and invited the ODOT to resubmit the FEIS, along with a request for a decision. (Gov. Ex. A, p. 165.) Larson wrote this letter since it was his job to make sure that a decision was made on highway construction projects which were pending. Since no formal project concerning 1-675 south of U. S. 35 had been proposed by the ODOT to the FHWA, Larson wanted the ODOT to advise the FHWA concerning its position on withdrawal/substitution or some other proposal. Neither the TCC nor the ODOT had formally replied to Secretary Goldschmidt’s September 26, 1980 letter and Larson wanted to resolve the issue of 1-675 south of U. S. 35. (Larson dep., pp. 15-16, 18, 24, 26.) In this letter, the ODOT was requested to address the issues raised in the previous decisions of Secretary Goldschmidt.

50. On April 16, 1981, the ODOT submitted the same FEIS which had been filed in 1979 for reconsideration along with supporting information from the TCC. The supporting information from TCC included the study entitled

An Analysis of Transportation Alternatives in the 1-675 Corridor (U. S. 35 south to 1-75)

(Gov. Ex. E), responses received from circulation of the final EIS originally submitted on August 12, 1980 and an April 1,1981, summary position of the Transportation and Coordinating Committee of the Montgomery-Greene County Transportation and Development Planning Program which addresses pertinent issues raised in the Secretary’s November, 1979 and September, 1980 communications. Gov. Ex. A, pp. 168-184. The ODOT requested approval of the 1-675 project south of U. S. 35. (Gov. Ex. A, pp. 168-179.) The ODOT’s submission was reviewed by the Ohio Division FHWA and forwarded to Region 5, FHWA with a recommendation that it be approved, upon the ground that the planning process had continued to demonstrate a need for the complete 1-675 facility. (Gov. Ex. A, pp. ISO-184.)

51. On April 16, 1981, Dayton Mayor James McGee met with FHWA Administrator Barnhart and Secretary Drew Lewis and expressed his views concerning the impacts of constructing 1-675 south of U. S. 35, on the City of Dayton. He reiterated those views in a letter to Secretary Lewis on May 18,1981. (Gov. Ex. A, pp. 185-187.)

52. On approximately June 1,1981, Leon Larson and Richard B. Robertson came to Dayton and inspected the 1-675 project on the ground. (Larson dep., pp. 10-11.) Larson began drafting the decision statement, which was to approve 1-675, in its entirety (south of U. S. 35) on the plane returning to Washington. On June 8, 1981, Richard B. Robertson, FHWA Associate Administrator for Planning and Policy Development asked his staff to analyze whether 1-675 was still justified on the basis of traffic demand. Mr. Robertson noted that “it appears that the City of Dayton and OST (under President Carter) have analyzed the project based on President Carter’s Urban Policy.” He further stated that “. . . OST seems to have utilized some inconclusive material to defend its position under President Carter.” Mr. Robinson went on to ask his staff, in view of the fact that everyone seems to agree that based on a comparison of the 1970 and 1980 census, the long range population forecast by the MPO (TCC) is somewhat optimistic, what appears to be a reasonable assumption for the population in a low-high range? He indicated that he had noted that population in the vicinity of the proposed 1-675 location has been experiencing new commercial, industrial and residential growth of good quality. He pointed out that whether or not 1-675 is built, the area surrounding the 1-675 corridor would continue to develop. He asked his staff to determine whether there was sufficient traffic volume to warrant a bypass freeway. He further indicated that the Dayton Central Business District seemed to be strong and holding its own even if the total city was not. He went on to conclude that he was not convinced, as apparently Secre

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tary Goldschmidt was, that 1-675 was nonessential. (Gov. Ex. P.) His staff responded with an analysis showing that 1-675 to the south of U. S. 35 could be supported even at reduced levels of population growth. (Gov. Ex. Q.)

53. On or about June 9, 1981, Leon Larson drafted a Decision Statement for FHWA Administrator Barnhart’s signature. The Decision Statement was subsequently signed by FHWA Barnhart without any changes being made. (Larson dep., pp. 13-14). The decision statement recommended approval of the resubmitted FEIS and the building of 1-675 in its entirety, “because the State’s request has been fully supported by a viable transportation planning process and has demonstrated a viable transportation need.” On June 9, 1981, the Decision Statement was forwarded to Judith T. Con-nor, the primary policy adviser to the Secretary of Transportation, for her prior concurrence. (Gov. Ex. A, pp. 189-194; Connor dep., p. 6.)

54. On or about June 9, 1981, Mr. R. A. Barnhart of the FHWA called Judith Conner and informed her that he wished review of the EIS to be expedited. Ms. Conner informed Mr. Barnhart that she would expedite the EIS process. There is no indication that Mr. Barnhart indicated that he wished Ms. Conner to render a decision either favoring or disapproving the FEIS. His request was merely that the decision process be expedited.

55. Conner reviewed the material submitted by FHWA which found the EIS acceptable and which approved the section of 1-675 south of U.S. 35. She also reviewed the recommendations of her Staff Office of Environment and Safety. (Conner dep., pp. 20-21, Gov. Ex. R.) Conner viewed her decision as a choice between the FHWA’s justification of the highway in terms of the traffic needs of the area versus using highways as a tool to implement urban policy. (Conner dep., pp. 30-31.) She also believed that it was the policy of the Reagan administration to pay more attention to the actual transportation benefits of a highway as opposed to the urban policy benefits.

(Id.

at 23, 26.) Further, in light of her experience, she felt it important to consider the recommendations which had evolved from the local planning process. (Id at 25.) Conner accepted the FHWA’s decision about the need for the project since they were the experts in transportation and the FHWA believed the traffic forecasts supported the highway.

(Id.

at 37-38.) Conner did not follow the recommendations of her staff for the reason that,

inter alia,

she concluded that her staff was tainted by a vested interest in view of the fact that Marvin Convisser and other staff personnel in the Office of Environment and Policy had previously participated in the Goldschmidt decisions.

56. In recommending approval of the final EIS to the Secretary of Transportation, Ms. Conner relied upon the proposed decision statement prepared by the FHWA and on President Reagan’s policy which advocated the building of highways to meet existing and/or proposed transportation needs as opposed to President Carter’s policy which looked upon highway construction approval as a means of implementing the President’s urban policy.

57. The new population and employment data resulting from the preliminary census report were not significant new information which should have been included in a new or supplemental EIS.

58. Since the issue did present an important policy question, Conner met with Secretary Lewis on July 6, 1981, to get his opinion.

(Id.

at 33.) She advised the Secretary that the highway should be approved because the local planning organization had elected to go ahead with the highway, the justification was adequate and the only argument against the highway was based on urban policy. Secretary Lewis agreed and the five-minute meeting ended.

(Id.

36, 39.) On July 6, 1981, Conner concurred in the Decision Statement approved by the FHWA after changing the signature block. Conner made no other changes.

(Id.

at 20.) Partisan political considerations did not enter into Conner’s decision.

(Id.

at 12, 39-41.)

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59. By July 9, 1981, each of the Plaintiffs had been informed of the July 6, 1981 decision approving the construction of 1-675 south of U.S. 35. (Righter I Ans. Interrog. 24; Lovelace Ans. Interrog. 24.)

60. On July 7, 1981, the FHWA Washington Office notified the FHWA Region 5 Office of the new decision and requested that notice of the decision be announced by the EPA in the Federal Register. On July 21, 1981, FHWA Ohio Division transmitted the July 6, 1981 decision to the ODOT and requested that immediate distribution be made to agencies and the public. Distribution was made by the ODOT on July

23,

1981. (Gov. Ex. A, pp. 197-206.)

61. By memorandum dated July 29, 1981, USEPA notified USDOT that the Notice of Availability of the FEIS would appear in the Federal Register on July 31, 1981 and that the public review period would terminate on August 31, 1981. On August 31, 1981, FHWA Ohio Division confirmed with the ODOT that no significant comments had been received as a result of the 30 day comment period and that detailed design could proceed on 1-675 south of U.S. 35. (Gov. Ex. A, pp. 207-208.)

62. In a letter to the ODOT, dated August 28, 1981, USEPA submitted comments on the FEIS, indicating that its concerns about air and water quality had been resolved, but still questioned the extent of noise mitigation measures and the consideration given to modal alternatives. The ODOT reviewed the comments and concluded that discussion of those items in the FEIS was adequate. (Gov. Ex. A, pp. 219-221.)

63. On August 31, 1981, Plaintiffs’ attorney, on their behalf, wrote to Secretary Lewis and asked him to reconsider the approval of the FEIS. On September 18, 1981, Secretary Lewis responded that other than Plaintiffs’ difference of opinion as to the wisdom of constructing 1-675 south of U.S. 35, they presented no factual basis upon which to base a revised decision. (Gov. Ex. A, pp. 210-218.)

64. On November 13, 1981, the FHWA authorized the ODOT to advertise for receipt of bids for Construction Section No. 5, from Kemp Road to North Fairfield Road. On January 20, 1982, a contract was executed between the ODOT and the contractor. Construction work began on March 8, 1982. The estimated construction cost is $12,588,960.

On December 30,1981, the FHWA authorized the ODOT to advertise for receipt of bids for Construction Section No. 1 from 1-75 to Normandy Lane. The estimated reconstruction cost is $33,896,110. Bids were opened on February 2, 1982.

65. On January 26, 1982, Plaintiffs filed the instant complaint.

The Planning Process

66. In 1960, local officials agreed to proceed with a cooperative transportation planning process by forming the Regional Transportation Committee (RTC), the predecessor of the TCC. This was prior to any Federal requirements for an urban planning process. (Gov. Ex. M, p. 9; Gov. Ex. I, p. V.)

67. The 1962 Federal Aid Highway Act required establishment of a comprehensive, cooperative and continuing (3C) transportation planning process in urban areas over 50,000 population (23 U.S.C. 134). The Dayton urban area fell into this category. Such a process was already underway in Dayton. With adoption in 1963 of the Regional Transportation Plan, Volume I, and in 1965 of the Regional Transportation Plan, Volume II, transportation improvements in the Dayton urban area were based on a planning process. 1-675 was an element of this plan. (Gov. Ex. I; Gov. Ex. F, § 1.13, p. 1/4.)

68. In 1967, the Dayton urban area moved into the continuing phase of transportation planning by reorganizing the Regional Transportation Committee (RTC) into the Transportation Coordinating Committee (TCC) of the Montgomery-Greene County Transportation Planning and Development Program. (Gov. Ex. M, p. 9.)

69. In 1968, the TCC began a major re-evaluation of the transportation plan for

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the Dayton urban area, consisting of extensive reappraisal and re-examination of goals, objectives, assumptions and proposals of the then existing plan in view of changing conditions and public interest in this two-county region. (Gov. Ex. M, p. 10.)

Since that time, the TCC has periodically reevaluated its long range transportation plan for the two-county area. Its monitoring program provides current population, land use, mobility, safety and other data which is used to evaluate current trends thereby leading to priority revisions, if necessary. Many transportation modes — automobile, high occupancy vehicles, transit, pedestrian, bicycle, as well as transportation for the elderly and handicapped — are considered in the reevaluation process. (Gov. Ex. F, § 1.21, p. 1/6.)

70. As part of the FHWA’s review and monitoring of the transportation planning process in urban areas, the FHWA periodically reviewed and certified the adequacy of the process for the Dayton urban area. The Administrative Record identifies some of these actions, covering the period from November 12, 1973 through January 14, 1982. For part of this period, starting with Fiscal Year 1975, a condition was contained in the certification to the effect that no major transportation projects on new locations should be undertaken until the long range transportation plan had been updated and accepted. However, 1-675 was exempted from this condition. Upon adoption of the Year 2000 Plan by TCC in January 1978, the FHWA, on January 18, 1978, lifted the condition relative to the advancement of major new projects. It should also be noted that the joint FHWA/UMTA (Urban Mass Transit Administration) certification actions on May 2, 1980 and April 13, 1981, in recognition of the alternative analysis underway with respect to the Secretary’s November 29, 1979 request, limited advancement of projects affected by the 1 — 675 corridor on a case-by-case basis. This limitation was removed on August 24,1981, after FHWA’s acceptance of the FEIS for the entire section of 1-675. (Gov. Ex. H, pp. 1, 3, 4, 7, 8, 12, 15, 34, 54, 55, 71, 72, 80.)

71. On September 17, 1975, the Federal Highway Administration and Urban Mass Transportation Administration published in the Federal Register joint regulations governing urban transportation planning. The Transportation System Management (TSM) element was incorporated as a requirement in the transportation planning process. In compliance with this requirement, the Dayton urban area transportation planners (TCC) issued annual TSM reports for the Fiscal Years 1976 through 1980. Three of these, for the Fiscal Years 1970, 1979 and 1981 have been included in the Administrative Record as samples. (Gov. Ex. J; Gov. Ex. K; Gov. Ex. L.)

72. By letter dated October 24,1975, the ODOT requested the TCC to revise the Year 2000 population forecast to be consistent with that used in other Dayton urban planning studies, and by memorandum dated January 9, 1976, the ODOT advised the TCC that a two-county (Montgomery and Greene) population control total of 973,000 for Year 2000 had been found acceptable. (Gov. Ex. H, pp. 9-11.)

73. In 1977, the TCC presented its Year

2000 Transportation Plan,

which called for the completion of 1-675 in addition to the construction of other highways. This plan has been adopted by all the local political jurisdictions.

74. By letter dated July 6, 1979, to the Ohio EPA, the TCC submitted a report which addressed the consistency determination between the regional transportation plan, of which 1-675 is a part, and air quality. In this letter, the TCC indicated that the report was developed with the active participation of the Regional Air Pollution Control Agency (RAPCA) and its staff. On July 11, 1979, the Ohio EPA informed the TCC that the report essentially supported the 109(j)/176(c) consistency determination. (Gov. Ex. H, pp. 41-55.)

75. On March 2, 1981, the ODOT submitted a copy of comments on the draft report for the Regional Transportation Plan adopted in 1978. The Ohio Division, FHWA approved these comments on March 3, 1981 (stamped “Approved” and signed). The fi

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nal report was issued in June 1981. (Gov. Ex. M; Gov. Ex. H, pp. 68-69.)

Estimates of Relevant Costs

76. As of March 29, 1982, the sum of $52,859,026 had been expended or committed on 1-675, south from U.S. 35 to 1-75, whereas $61,193,556 remained to be expended. (Def. ODOT Ex. AAA; Def. ODOT Ex. Y.)

77. As of March 29, 1982, the sum of $42,499,976 had been expended or committed on that portion of 1-675 running from U.S. 35 north to 1-70, whereas the sum of $26,558,000 remained to be expended. (Def. ODOT Ex. AAA; Def. ODOT Ex. Y).

In summary, as of March 29, 1982, $95,-673,983 had been expended or committed on the entirety of 1-675, with $87,751,556 yet to be expended. (Def. ODOT Ex. AAA; Def. ODOT Ex. Y.)

78. The following estimated costs of delay to the State of Ohio, on an annual basis, for that portion of 1-675 from 1-75 to Normandy Lane, is or are uncontroverted — $15 million loss per year upon an $8 million increase in contractor’s bid, a $3 million claim of loss by original contractor, a $3,700,000 increase in construction costs due to inflation (computed at 9.8%) and excess cost to inconvenience travelers due to inefficient use of fuel and time, $300,000.

Standing

79. The Plaintiffs in this case are the Citizens Committee Against Interstate Route 675 (Committee), Frank Mione, Dean Lovelace, the Dayton Black Political Assembly (Political Assembly) and Richard L. Righter (See, caption of Complaint, Doc. #1).

80. The Committee is based in the metropolitan area of Dayton, Ohio, and has formed because of concerns about the proposed construction of Interstate 675. (Complaint, para. 6).

81. The Political Assembly is a coalition of black organizations in the City of Dayton, and has, as one of its concerns, the goal of economic development for the black community in Dayton. The Black Political Assembly is one of the constituent members of the Committee.

82. Dean Lovelace is a co-chairperson of the Political Assembly and of the Committee. Mr. Lovelace is a black resident of the City of Dayton.

83. Frank Mione is co-chairman of the Committee. He resides in Kettering, Ohio, one of the towns within the jurisdiction covered by the programs of the TCC.

84. Richard L. Righter is a member of the Committee. He resides in Dayton, Ohio. (Complaint, para. 10.) His property is “about five miles” from 1-675. (Righter Int. # 1.)

85. A portion of 1-675 passes directly behind and next to the Plaintiff Frank Mione’s property.

86. Neither Lovelace nor Righter allege that they will be among those members of the Plaintiff organizations who use portions of the area to be traversed for 1-675 for recreation and will, therefore, be adversely effected by curtailment of their recreational opportunities. (Lovelace Ints. and Righter Ints.)

87. Neither Lovelace nor Righter claim any reduction of enjoyment of property due to noise, air, water and visual pollution produced by highway construction and the use and development induced. (Lovelace Ints. and Righter Ints.)

88. Plaintiffs Lovelace and Righter, both City of Dayton residents, and Political Assembly allege only that the construction of 1-675 will cause a loss of population and jobs in the City of Dayton and will diminish its tax base. Lovelace has asserted that “the construction of the highway will take jobs away from the City of Dayton and move them to the 1-675 corridor. This will reduce the tax base of Dayton and could affect my future employment with the City.” (Lovelace Int. # 17.) Righter’s response to the same interrogatory was “the injury to which I refer would be the reduction of population and jobs caused by the construction of 1-675 and the resultant loss to the tax base of the City of Dayton.” (Righter Int. # 17).

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89. The Political Assembly makes no claim of injury to itself apart from the asserted injury to its members. (Political Assembly Int. # 7.) The only individual Plaintiff who is a member of the Political Assembly is Dean Lovelace. (See Lovelace Int. # 16; Mione Int. # 16; Righter Int. # 16). Political Assembly expressly disclaims as not applicable to it any claim of adverse effect upon its members by curtailment of recreational activities (Political Assembly Int. # 4), by reduction of enjoyment of its members’ property due to alleged noise, air, water and visual pollution produced by the construction of 1-675. (Political Assembly Int. # 5.)

90. Frank Mione is neither a member of the Political Assembly nor has he alleged any claim of injury arising out of potential socio-economic impacts of 1-675 on the City of Dayton.

91. Plaintiff Mione is not a resident of Dayton and confines his claim of injury to an alleged loss in value of his property (which abuts 1-675) due to increased dirt, noise and pollution caused by construction and operation of the highway (Mione Int. # 17), and to an alleged curtailment of recreational opportunities due a threatened destruction of a woodland area abutting his residence. (Mione Int. # 18.)

92. The Committee concedes that it has no members whose claims it might raise (Committee Int. # 1). It has neither alleged nor suffered any distinct injury to itself. The Committee is not a membership organization, claims no members and has no constitution or qualifications for membership. (Committee Int. # 1). Its management structure is “informal, representation from each group, and its leadership, consists solely of the three individual plaintiffs.” (Committee Int. # 8). It claims no organizational participation in the administrative process leading to the challenged actions. (Committee Int. # 13, # 14, # 15).

II. SCOPE OF THIS COURT’S REVIEW

In a case of this wide ranging public interest, it is imperative that this Court point out, most emphatically, that its role in deciding this lawsuit is

not

to determine the legislative, administrative or political wisdom behind the Government’s decision to approve the building of the segment of 1-675 under discussion, or, for that matter, to determine if 1-675 is

really

needed in the greater Dayton community and what its short and long range impacts upon that community might be. Rather, the

sole

task of the Court, in litigation wherein the Plaintiffs seek review of an administrative decision, is to determine if the administrative action was either “arbitrary, capricious and an abuse of discretion, or otherwise not in accordance with law,”

if the action failed to meet statutory, procedural or constitutional requirements. 5 U.S.C. 706(2XA)-(D). If these findings are not made, after a review of the entire administrative record compiled by the agency, and any supplementation allowed by the Court, the agency action must be upheld.

Camp v. Pitts,

411 U.S. 138, 143 , 93 S.Ct. 1241, 1244 , 36 L.Ed.2d 106 (1973);

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402, 414-420 , 91 S.Ct. 814, 822-25 , 28 L.Ed.2d 136 (1971)

(Overton Park). De novo

review, which would allow this Court to examine the wisdom of the merits of the administrative agency’s decision, is not appropriate under the situation as exists in the case at bar. 411 U.S. at 141-142 , 93 S.Ct. at 1243-1244 ; 401 U.S. at 415 , 91 S.Ct. at 823 .

see also,

Gov. Ex. E. Following this submission, the Division Administrator, on April 28,1981, recommended that the 1979 Secretarial decision be rescinded. Gov. Ex. A, p. 181. On June 9, 1981, R. A. Barnhart, the Federal Highway Administrator, approved the proposal and requested the concurrence of the Secretary of Transportation. Gov. Ex. A, p. 190. In a decision statement issued on July 6, 1981, the Assistant Secretary for Policy and International affairs approved the 1-675 project south of U.S. 35,

finding, in relevant part: (1) that the 1979 Urban Impacts Study indicated in general that “impacts on the city of Dayton would be offset by the overall benefits to the region, which includes Dayton,” Gov. Ex. A, p. 192; and (2) that “[ajvailable information does not indicate that the adverse economic impact on the city of Dayton is significant enough to deny the approval of the EIS for the portion of 1-675 south of U.S. 35.”

Id.

In addition, it should be noted that while May- or McGee objected to construction of the southern portion of 1-675 in 1981, the City of Dayton currently supports the project.

See,

Doc. # 49, Amicus Curiae Brief of the City of Dayton, and Exhibit A attached thereto.

As was previously noted, Plaintiffs have contended that the failure of the FEIS to consider the adverse impacts upon the City of Dayton rendered the FEIS inadequate, and constituted a violation of the requirements of NEPA. Defendants, however, have claimed that the sole reason for any discussion of matters related to urban impacts evolved from the politically-based Urban Policy of President Carter, rather than from the dictates of NEPA.

Overton Park, supra,

401 U.S. 402 , 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971), the Supreme Court indicated that the proper standard of review of agency actions is whether “the action was ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ ... or failed to meet statutory, procedural or constitutional requirements.”

Id.

at 414, 91 S.Ct. at 822 (citation omitted). Court review of NEPA actions, in particular, has been held to encompass two inquiries. In

Grazing Fields Farm v. Goldschmidt,

626 F.2d 1068 (1st Cir. 1980), the Court indicated that a reviewing court must evaluate the agencies

*531

compliance with the “ ‘essentially procedural,’ ”

id.

at 1072 , duties placed upon it by NEPA, and must also conduct a substantive review to determine whether the agency’s action was arbitrary or capricious.

Id.

With respect to the latter inquiry, the Court stated:

This substantive review, although conducted on the basis of the entire administrative record, is quite narrow in scope. The Court should only assure itself that the agency has given good faith consideration to the environmental consequences of its actions and should not pass judgment on the balance struck by the agency among competing concerns.

Id.,

citing

Stryker’s Bay Neighborhood Council v. Karlen,

444 U.S. 223 , 100 S.Ct. 497 , 62 L.Ed.2d 433 (1980) (per curiam).

The procedural requirements of NEPA are contained in 42 U.S.C. § 4332 , which provides, in pertinent part, that:

(2) All agencies of the Federal Government shall

* * * * * *

(C) Include in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official 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.

The sole “environmental” effects of 1-675 upon the City of Dayton appear to revolve around allegations that construction of I-675 “will encourage further out-migration of businesses, erosion of the tax base, and loss of employment opportunities.”

See,

Plaintiffs’ Preliminary Memorandum in Support of Preliminary and Permanent Injunction, Doc. # 22, p. 32; Gov. Ex. A, pp. 37-38; Gov. Ex. C. Because these appear to be economic concerns related only to the proposed location of the highway, the first question to be considered is whether economic effects of the type involved herein are within those “environmental impacts” outlined in § 4332(2)(C)(ii).

Defendants have argued, citing

Breckinridge v. Rumsfeld,

537 F.2d 864 (6th Cir. 1976), cert. denied 429 U.S. 1061 , 97 S.Ct. 785 , 50 L.Ed.2d 777 (1977)

(Breckin

ridge), that “in the absence of an impact on the physical environment, socio-economic impacts alone are not within the contemplation of NEPA, and do not require the preparation of an EIS.” (Doc. # 37, p. 40.) Defendants further have stated that based on this concept, and upon the conceded fact that 1-675 will have no significant impacts on the physical environment of the City of Dayton, then “a

fortiori,”

any discussion or no discussion at all of the socio-economic impacts of 1-675 upon the City in the FEIS would be adequate. Plaintiffs, of course, have claimed that NEPA requires discussion of urban impacts of the type involved herein. The primary case cited by Plaintiffs, to support their assertion that the economic effects of 1-675 upon the City of Dayton should have been addressed, is

McDowell v. Schlesinger,

404 F.Supp. 221 (W.D.Mo.1975). At the outset, it should be noted that in

Breckinridge ,

the Sixth Circuit expressly rejected the reasoning of

McDowell v. Schlesinger. See,

537 F.2d at 867 , n.l. Before specifically discussing

Breckinridge ,

however, it is appropriate to consult the legislative history of NEPA, and the regulations promulgated thereunder, to determine whether Defendants violated the procedural requirements of NEPA by failing to evaluate the economic effects of I-675. To begin, the legislative history of NEPA indicates that the overriding Congressional concern in passing the Act was focused upon the apparent inexorable national trend of despoilation of the

physical

environment. In referring to the need for

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the legislation, the House of Representatives report accompanying NEPA quoted as follows from a New York Times Editorial:

By land, sea, and air, the enemies of man’s survival relentlessly press their attack. The most dangerous of all these enemies is man’s own undirected technology. The radioactive poisons from nuclear tests, the runoff into rivers of nitrogen fertilizers, the smog from automobiles, the pesticides in the food chains, and the destruction of topsoil by strip mining are examples of the failure to foresee and control the untoward consequences of modern technology.

H.R.Rep.No.91-378, 91st Cong., 1st Sess., reprinted in [1969] U.S.Code Cong. & Ad. News 2751, 2753. Further, Senator Jackson made the following statements regarding NEPA when he introduced the bill on the floor of the Senate on July 10, 1969:

[T]he National Environmental Policy Act of 1969 ..., is the most significant measure in the area of

national resource policy

ever considered by the Congress.

As reported by the Committee, S.1075 provides a considered Congressional statement of national goals and purposes for the preservation of the quality of America’s future environment.

What is involved is a congressional declaration that we do not intend, as a government or as a people, to initiate actions which endanger

the continued existence or the health

of mankind. That we will not intentionally initiate actions which do irreparable damage

to the air, land, and water which support life on earth.

An environmental policy is a policy for people. Its primary concern is with man and his future. The basic principle of the policy is that we must strive, in all that we do, to achieve a standard of excellence

in man’s relationships to his physical surroundings.

115 Cong.Rec. 19009 (1969) (remarks of Sen. Jackson) (emphasis added).

Senator Jackson also requested that excerpts from the Committee on Insular Affairs Report be printed in the Congressional Record. With reference to the term environmental quality, that report stated:

The expression “environmental quality” symbolizes the complex

and interrelated aspects of man’s dependence upon his environment.

Most Americans now understand, for better than our forebears could the nature of man-environment relationships .... The Nation has in many areas overdrawn its bank account in

life-sustaining natural elements.

For these

elements

— air,

water, soil and living space,

technology at present provides no substitutes.

Id.

at 19012 (emphasis added).

While the above comments place an undisputed emphasis upon purely physical effects, it is apparent that the scope of the NEPA was intended to extend beyond matters such as air and water pollution.

See, Breckinridge, supra,

537 F.2d 864, 866 (6th Cir. 1976), cert. denied 429 U.S. 1061 , 97 S.Ct. 785 , 50 L.Ed.2d 777 (1977). In fact, the report cited above specifically refers to “haphazard urban and suburban growth; crowding, congestion, and conditions within our central cities which result in civil unrest and detract from man’s social and psychological well-being.” 115 Cong.Rec. 19010 (1969). The report also mentions “poor architectural design and ugliness in public and private structures,”

id.,

and “an increasingly ugly landscape cluttered with billboards, powerlines, and junkyards.”

Id.

However, the role of such impacts has been deemed to be limited, and to be significant “only in conjunction with primary environmental impacts.”

National Association of Government Employees v. Rumsfeld,

413 F.Supp. 1224, 1229 (D.D.C.1976), aff’d 556 F.2d 76 (D.C.Cir.1977).

Accord, Metlakatla Indian Community v. Adams,

427 F.Supp. 871, 875 (D.D.C.1977). Moreover, although the preceding recitation of legislative history is helpful to some degree, one searches in vain through the Congressional discussion of NEPA for any consideration of urban impacts of the type involved herein, i.e., of economic effects allegedly caused by the environmentally unrelated decision to place a highway in a location outside a city.

See

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generally,

115 Cong.Rec. 19008-19013; 26569-26590; 29050-29089; 40415-40417 (1969).

With the above analysis in mind, it is now appropriate to consult the pertinent Council on Environmental Quality (CEQ) regulations to determine whether they furnish any guidance for resolution of the present matter. It is also important to bear in mind the Supreme Court’s admonition that “CEQ’s interpretation of NEPA is entitled to substantial deference.”

Andrus v. Sierra Club,

442 U.S. 347, 358 , 99 S.Ct. 2335, 2341 , 60 L.Ed.2d 943 (1979). On April 23, 1971, CEQ published guidelines in the Federal Register,

see,

36 Fed.Reg. 7724 (1971), which provided with respect to the content of environmental statements, that coverage should include:

The probable impact of the proposed action including impact on ecological systems such as wildlife, fish, and marine life. Both primary and secondary significant consequences for the environment should be included in the analysis.

For example, the implications, if any, of the action for population distribution or concentration should be estimated and an assessment made of the effect of any possible change in population patterns upon the resource base,

including

land use, water, and public services,

of the area in question.

Id.

at 7725 (emphasis added). The clear import of this guideline is that population changes, for example, are significant

because

they impact upon, or cause changes in the

physical resource base.

The 1971 CEQ guidelines further provide that the environmental statement should contain discussion of:

Any probable adverse environmental effects which cannot be avoided (such as water

or air pollution, undesirable land use patterns, damage to life systems, urban congestion, threats to health

or other consequences adverse to the environmental goals set out in Section 101(b) of the Act).

Id.

(emphasis added). Again, the emohasis of the guideline is upon those impacts which will impinge upon, or in some way affect, the physical environment.

In 1973, CEQ revised the guidelines, and published them in the Federal Register.

See,

38 Fed.Reg. 20550-20562 (1973) (to be codified at 40 C.F.R. §§ 1500.1-1500.14 ). Therein, CEQ did not explain the changes in specific provisions, but merely noted that in response to recent court decisions, the guidelines regarding the responsibilities of federal agencies had been made more detailed.

Id.

at 20550 . § 1500.8 of the new guidelines contained a description of the required contents of the EIS, and while that section was expanded to include a discussion of secondary impacts,

see,

40 C.F.R. § 1500.8 (a)(3)(ii) (1974), it did not differ substantially from the 1971 guidelines. § 1500.8 provided, in pertinent part, that:

(a) The following points are to be covered ....

(3) The probable impact of the proposed action on the environment.

(ii) Secondary or indirect, as well as primary or direct consequences for the environment should be included in the analysis.

Many major Federal actions,

in particular those that involve the construction or licensing of infrastructure investments (e.g., highways, airports, sewer systems, water resource projects, etc.)

stimulate or induce secondary effects in the form of associated investments and changed patterns of social and economic activities. Such secondary effects, through their impacts on existing community facilities and activities, through inducing new facilities and activities, or through changes in natural conditions,

may often be even more substantive than the primary effects of the original action itself. For example, the effect of the proposed action on population and growth may be among the most significant secondary effects. Such population and growth impacts should be estimated if expected to be significant ... and

an assessment made of the effect of any possible change in population patterns or growth upon the resource base,

including

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land use, water, and public services of the area in question.

(Emphasis added). Although this section refers to changed patterns of social and economic activities, the example furnished, like that in the 1971 regulations, indicates that the relevant focus, for NEPA purposes, is with impacts that are connected in some way to the physical resource base or environment. Furthermore, the impact regulations of the Federal Highway Administration which were in effect at the time of the filing of the DEIS and FEIS herein, echo substantially the wording of the above CEQ guideline on secondary impacts.

See,

23 C.F.R. § 771.18 (i)(1) (1976). Thus, based on the legislative history surrounding the NEPA, and the regulations promulgated thereunder, it does not appear that economic effects of the type herein are significant considerations, particularly where they are not in some way connected with the primary physical action itself. In this context, the situation herein appears to be indistinguishable from that involved in

Breckinridge, supra,

537 F.2d 864 (6th Cir. 1976), cert. denied 429 U.S. 1061 , 97 S.Ct. 785 , 50 L.Ed.2d 777 (1977). While

Breckinridge

involved the preliminary determination of whether the quality of the human environment was affected by the closure of a military base so as to require preparation of an EIS,

see, id.

at 865 , it is difficult to narrow the scope of the Court’s comments on the meaning of human environment under NEPA to merely the facts of that ease. It is also difficult to reject the logic of the position of the Defendants herein, that if the economic impacts of 1-675 upon the City of Dayton would not have initially been sufficient to trigger the filing of an EIS, then such impacts need not be addressed when an EIS is filed

because of other unrelated reasons.

Breckinridge ,

the Sixth Circuit considered whether the district court had erred in enjoining transfers of personnel from an Army depot until a formal environmental statement had been prepared and circulated.

See, id.

at 865 . In that case, the Secretary of Defense had concluded that a formal environmental statement would not be prepared because the elimination of over 2,600 jobs in the Lexington, Kentucky area would not constitute a significant impact on the human environment.

Id.

Specifically, a non-governmental study indicated that the area in question would suffer only a “minimal short term unemployment as a result of the partial closure.”

Id.

The Court noted that the district court had granted a preliminary injunction, but had not ruled on the dispositive issue, i.e., whether “the scope of the term ‘human environment’ extend[s] to the closing of a military base and transfer of personnel and functions by the United States Army.”

Id.

(parenthetical material supplied.) On appeal, the appellees had contended that the term “ ‘human environment’ means environment which directly affects human beings, including unemployment and loss of revenue.”

Id.

The Sixth Circuit clearly rejected this concept in

Breckinridge .

After consideration of the legislative history of NEPA, the Court concluded that it was not “a national employment act,”

id.

at 867 , and reversed the decision of the district court. While the Court found that “personal and economic interests are not

in and of themselves

sufficient to bring the statute into play,”

id.

at 865 , it did point out that “[t]he contention that NEPA goes beyond what might be stated to be the ‘physical environment’ is not in dispute.”

Id.

at 865-866 . The Court further noted that factors other than the physical environment have been considered only when there has been “a

primary impact on the physical environment.” Id.

at 866 (emphasis added).

This Court agrees entirely with the Sixth Circuit’s conclusion that NEPA was not intended to be a national employment act, and that socio-economic factors

alone

will not trigger the requirement of filing an environmental impact statement. This view has been adopted by other courts,

-'-ee. Image of Greater San Antonio, Texas v. Brown,

570 F.2d 517, 522 (5th Cir. 1978);

National Association of Government Employees v. Rumsfield,

413 F.Supp. 1224, 1229 (D.D.C.1976), aff’d. 556 F.2d 76 (D.C.Cir.1977);

Metlakatla Indian Community v. Ad

*535

ms,

427 F.Supp. 871, 875 (D.D.C.1977), and in fact, has been approved by the Council on Environmental Quality, which was created by statute to assist in the implementation of NEPA.

See,

42 U.S.C. §§ 4341 et seq. The most recent regulation promulgated by the CEQ on this subject provides that:

“Human environment” shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. ... This means that economic or social effects are not intended by themselves to require preparation of an environmental impact statement.

40 C.F.R. § 1508.14 (1981). The comments accompanying the publication of the CEQ regulations in the Federal Register furnish additional verification of the Sixth Circuit’s position. Therein, the CEQ stated that comments had been received indicating concern that human environment would be interpreted to be “limited to the natural and physical aspects of the environment.” 43 Fed.Reg. 55978, 55988 (1978). In response, the CEQ stated:

This is not the Council’s intention....

The only line we draw is one drawn by the cases. Section 1508.14 stated that economic or social effects are not intended by themselves to require preparation of an environmental impact statement. A few commentators sought further explanation of this provision reflects the Council’s determination, which accords with the case law, the NEPA was not intended to require an environmental impact statement where the closing of a military base, for example, only affects such things as the composition of the population or the level of personal income in a region.

Id.

at 55988-55989 .

Stripped to its essentials, Plaintiffs’ claim herein is that the decision to locate 1-675 outside the City of Dayton will cause an economic loss to the City and its residents, in that businesses may decide to locate or relocate in the 1-675 corridor as opposed to the City of Dayton. Because these alleged effects are not within the purview of NEPA without a demonstrated relationship with, or impact upon the physical environment, and because the essential grievance herein cannot be distinguished from that involved in

Breckinridge ,

the Court concludes that Defendants were not required to include in the FEIS a detailed statement of potential economic impacts upon the City of Dayton.

Plaintiffs have contended, in a supplemental memorandum on standing, that “urban impacts” should be considered under NEPA, and have cited

Como-Falcon Community Coalition, Inc. v. United States Department of Labor,

465 F.Supp. 850 (D.Minn.1978), modified 609 F.2d 342 (8th Cir. 1979), cert. denied, 446 U.S. 936 , 100 S.Ct. 2154 , 64 L.Ed.2d 789 (1980), as discussing general categories of urban impacts under NEPA, and as containing a collection of 22 cases in which courts 'have held that “urban impacts” must be considered.

See,

Doc. # 47, p. 6. In the cited case, the district court had enjoined establishment of a Jobs Center in Minnesota because it appeared from the administrative record that the Department of Labor either had not considered “the environmental impact of the proposed center on the surrounding neighborhood, or had failed to develop a reviewable record of such environmental impacts.”

Id.

at 852. Pursuant to the Court order, the Department of Labor made a reassessment of the Center’s environmental impact, and determined that an impact statement was not required.

Id.

When this conclusion was challenged in district court, the Court concluded that the Department of Labor had not acted unreasonably in finding that “the impact of the center on the human environment would not be significant.”

Id.

at 867. In reaching its decision, the District Court noted that the complaint had alleged specific environmental harms such as:

Vehicular and pedestrial congestion, demand for increased fire and police protection; increased strain on other services such as public transportation, legal services, emergency health care, and utilities; increased criminal activity; a loss in resi

*536

dential property values; and substantial alteration of the residential character of the neighborhood.

Id.

at 860. The district court clearly felt that these claims should be considered under NEPA, and did interpret “human environment” under NEPA broadly to include categories of “urban or socio-economic impacts” such as impact on community development policy.

Id.

at 859.

On appeal, the Eighth Circuit affirmed the District Court’s ultimate conclusion that the Department of Labor had acted reasonably, but specifically held as follows:

[W]e vacate that portion of the district court’s opinion concerning the evaluation of the Department of Labor’s analysis.

We hold the district court erred in requiring the reassessment. The social and economic factors raised by the Coalition’s complaint are not encompassed within the provisions of NEPA,

and under the circumstances of this case

need not have been considered by the Department in its determination of whether to file an EIS.

609 F.2d at 345 . It would be difficult to formulate a more explicit rejection of the District Court’s conclusions or the contentions of the Plaintiffs herein, than that cited above.

In addition, the Court has read the other cases cited by Plaintiffs,

see,

Doc. # 47, p. 6, and relied upon by the district court in

Como-Falcon Community Coalition, Inc. v. United States Department of Labor, see,

465 F.Supp. at 859, n.4 , and has seen nothing which would alter the conclusions reached herein regarding the non-necessity of including a decision in the FEIS of economic impacts upon the City of Dayton. Without discussing the cases in detail, the Court notes that they were not similar to the present case and did not discuss NEPA’s applicability to situations involving economic impacts only.

See, e.g., Businessmen Affected Severely By Yearly Action Plans, Inc. v. D.C. City Council,

339 F.Supp. 793, 794 (D.D.C.1972) (NEPA held applicable to urban renewal project which involved demolition of existing structures belonging to members of Plaintiff organization);

Morgan v. United States Postal Service,

405 F.Supp. 413 (W.D.Mo.1975) (preparation of an EIS required where construction of mail facility and razing of neighborhood structures would allegedly conflict with local land use plans and historic character of neighborhood in question).

Significantly, in

Maryland-National Capital Park and Planning Commission v. U.S. Postal Service,

487 F.2d 1029 (D.C.Cir.1973), the Court rejected the type of considerations which are involved herein, as being within the contemplation of NEPA. Specifically, the Court stated:

Not all deviations from local zoning will necessarily rise to the level of effecting the “quality of human environment” within the fair meaning of that term. The “overriding” issue underlying MNCPC’s recommended rejection of this project was

“social and economic” and as we Observed, rooted in the prospective loss of real and personal property taxation.

A secondary, and related factor was the prospect of an influx of low-income workers into the County. Concerned persons might fashion a claim, supported by linguistics and etymology, that there is an impact from people pollution on “environment,” if the term be stretched to its maximum. We think this type of effect cannot fairly be projected as having been within the contemplation of Congress.

Id.

at 1037 (emphasis added) (citations omitted). The Court further noted later in the opinion that “[w]e remain troubled, however, by indications that the main concern, ‘the over-riding issue’ of MNCPC [the plaintiff] is

‘social and economic’ rather than environmental.” Id.

at 1042. (emphasis and parenthetical material added).

Accord, Nucleus of Chicago Homeowner’s Association v. Lynn,

524 F.2d 225, 231 (7th Cir. 1975), cert. denied sub. nom.

Nucleus of Chicago Homeowner’s Association v. Hills,

424 U.S. 967 , 96 S.Ct. 1462 , 47 L.Ed.2d 734 (1976).

Based on the fact that it has not been alleged that 1-675 would have primary physical impacts upon the City of Dayton,

*537

and based upon the fact that the sole issue involved in the claims of the City relates to economic effects only, the Court concludes, under

Breckinridge

as well as the other authority cited, that the FEIS herein did not need to include a discussion of the economic impacts of 1-675 upon the City of Dayton. This conclusion is additionally bolstered by the fact that the comments receivéd from the Department of Housing and Urban Development regarding the negative economic health of the City of Dayton were not submitted until almost two years after the comment period for the DEIS ended in February, 1977.

See,

Finding of Fact 23, and Gov. Ex. A, p. 34. This fact alone indicates that the issue of economic impact itself was not a concern under NEPA, but arose from the urban policy program of President Carter. It should also be noted that these conclusions require a finding that Plaintiff Mione and the Committee do not have standing to raise issues relating to the economic impacts of the proposed highway. Although the Court has assumed these Plaintiffs’ standing for the purpose of giving full consideration to the claims herein, it is apparent, under the preceding discussion, that the economic impacts they have asserted are not within the zone of interests protected by NEPA.

As a final matter, the Court notes that while NEPA has been construed as protecting the quality of life for city residents,

see, Hanly v. Mitchell,

460 F.2d 640, 647 (2d Cir.), cert. denied sub nom.

Hanly v. Kleindienst,

409 U.S. 990 , 93 S.Ct. 313 , 34 L.Ed.2d 256 (1972)

(Hanly),

where it has been so construed, the action in question directly impacted in a physical way upon the area for which the urban effects were calculated.

See, e.g., Hanly

(construction of jail in densely populated urban area required consideration of,

inter alia,

traffic, noise, congestion and crime caused by or associated with the facility). The only exception to this occurred in

City of Rochester v. United States Postal Service,

541 F.2d 967 (2d Cir. 1976), in which the Court of Appeals for the Second Circuit held that NEPA applied to the decision of the Postal Service to transfer operations from a downtown site in the City of Rochester to a small town seven or eight miles from the City.

Id.

at 971 . The Court found that “the transfer of 1,400 employees could have several substantial environmental effects,”

id.

at 973 , including an increase in commuter traffic, loss of job opportunities, and perhaps, urban blight through abandonment of a downtown postal facility. Based on the previous discussion of

Breckinridge ,

however, it is apparent that the Sixth Circuit would reject the reasoning and result in this decision, since there is no apparent distinction between closing a military base,

Breckinridge, supra,

537 F.2d 864, 865 (6th Cir. 1976), cert. denied, 429 U.S. 1061 (1971), and closing a post office. Since this Court is bound by the decision in

Breckinridge

it must decline to follow the decision of the Second Circuit.

Assuming,

arguendo,

however, that the economic impacts of the highway were relevant for purposes of NEPA, or should have been considered in the FEIS, and, therefore, that Mione has standing to raise this issue, the next question is whether the discussion in the FEIS, such as it was, was sufficient. Defendants have argued that the FEIS did contain information regarding the economic impacts of the highway, and that any further discussion was not necessary because it would have involved a “crystalball analysis.”

See,

Doc. # 37, pp. 43-44, citing,

Natural Resources Defense Council Inc. v. Morton,

458 F.2d 827 (D.C.Cir.1972). Upon consideration of the record herein, the Court agrees with this assertion and concludes that, even if discussion of economic impacts is required under NEPA, the references to economic impacts in the FEIS were adequate, given the state of the art at the time when the FEIS was prepared. Specifically, the FEIS indicated that an increase in employment and commercial activity was expected in the I-75-I-675 and S.R. 725 interchange, and referred to a 1973 economic analysis performed for that area.

See,

Gov. Ex. F, § 2.8.10, p. 2.8/3; § 3.8.03, p. 3.8/1, and Chapter 10, p. 10/1. In addition, in response to comments regarding the effect of 1-675 upon the City of Dayton and

*538

other existing communities, the FEIS referred to a 1974 USDOT document, “Social and Economic Effects of Highways,”

see, id.

at Comment 222, § 9.3.07, p. 9.3/84 and Chapter 10, p. 10/2, which indicated that a majority of bypassed towns had experienced a decline in retail sales, or less retail growth than areas not affected by bypass construction.

Id.

at Comment 222, § 9.3.07, p. 9.3/84. Specifically, with respect to the City of Dayton, the FEIS stated:

A review of current development and known plans for development show that there will be little area remaining for development immediately adjacent to the corridor. There is a possibility of some movement from the Dayton CBD [central business district] to outlying areas, however it is recognized such migrations will depend on the vitality of the Dayton CBD & rate of development along the corridor. From a review of census data it is evident that the planned highway will serve development that occurred prior to the location hearing.

Id.

at § 9.3.07, p. 9.3/66.

From the above comments, it could be concluded that the economic impact associated with the proposed bypass would be a decline in retail sales, particularly within the City of Dayton, since substantial economic growth was predicted for an area located outside the City, i.e., the I-675-I-75-S.R. 725 interchange area. In addition, it could be inferred that impacts on retail sales would be less than usual because little land remained for future commercial development. The Urban Impacts Study performed at the request of Secretary Adams reaches the same conclusions, and is replete with indications that under current methodology, the effect of the completion of the highway could not be assessed.

See,

Finding of Fact 29;