The Robinswood Community Club v. Jones A. Volpe, as Secretary of the United States Department of Transportation

506 F.2d 1366 6 ERC 1401 , 4 Envtl. L. Rep. 20 ,378 The ROBINSWOOD COMMUNITY CLUB et al., Plaintiffs-Appellants, v. Jones A. VOLPE, as Secretary of the United States Department of Transportation, et al., Defendants-Appellees. No. 72-2251. United States Court of Appeals, Ninth Circuit. March 26, 1974, Rehearing Denied Dec. 23, 1974. John A. McGary (argued), of Seattle, Wash., Gene Duncan (argued), Bellevue, Wash., for plaintiffs-appellants. Jacques B. Gelin (argued), Kent Frizell, Thomas L. Adams, Dept. of Justice, Washington, D.C., Thomas R. Garlington, Asst. Atty. Gen. of Wash., (argued), Olympia, Wash., Albert E. Stephan, Asst. U.S. Atty., Seattle, Wash., Robert B. Rutledge, Regional Counsel, Federal Highway Administration, Portland, Or., for defendants-appellees. OPINION Before CHOY and WALLACE, Circuit Judges, and LYDICK, * District Judge. WALLACE, Circuit Judge: 1 Robinswood Community Club and a class comprised of its members (Robinswood) appeal from the denial of a preliminary injunction to enjoin federal and state officials from completing construction of the Eastgate interchange on a segment of Interstate Highway Project I-90 near Seattle, Washington. Robinswood alleges…

Robinswood Community Club and a class comprised of its members (Robins-wood) appeal from the denial of a preliminary injunction to enjoin federal and state officials from completing construction of the Eastgate interchange on a segment of Interstate Highway Project 1-90 near Seattle, Washington. Robins-wood alleges noncompliance with section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332 (2)(C), the Federal-Aid Highway Act, 23 U.S.C. § 109 (b) and FHWA Policy and Procedure Memorandum (PPM) 20-8, 34 Fed.Reg. 728 (1969).

The design for the Eastgate interchange was conceived in 1962, though program and route approval by the Secretary of Transportation was not given until several years later. This controversy centers around the engineering design stage. 1

The State of Washington, pursuant to PPM 20-8, held numerous meetings with community groups to explain the Richards Road to Lake Sammamish segment of 1-90, of which the Eastgate interchange is an integral part. Comments and suggestions were solicited resulting in revisions to the state developed design. Several meetings were held in 1969 with representatives of the Robinswood Community…

(concurring):

I concur with my Brothers Wallace and Lydick in all of the foregoing majority opinion save that portion of it fixing the date of final design approval by the Secretary of Transportation as the controlling criterion for determining the applicability of NEPA to ongoing highway projects. Withal, I concur in the result reached by them affirming the judgment of the district court.

It strikes me as too mechanical, as well as wrong, to peg the date of final design approval for the purpose of applying NEPA to a highway project such as is involved here. I prefer the approach adopted in a number of recent decisions which determine the application of § 102(2)(C) of NEPA, 42 U.S.C. § 4332 , not solely on the basis of the date of final design approval, but according to Council on Environmental Quality (CEQ) guidelines. Northside Tenants’ Rights Coalition v. Volpe, 346 F.Supp. 244 (E.D.Wis.1972); Indian Lookout Alliance v. Volpe, 345 F.Supp. 1167 (S.D.Iowa 1972); Southern Vermont, Inc. v. Volpe, 343 F.Supp. 761 (DVt.1972); Environmental Law Fund v. Volpe, 340 F.Supp. 1328 (N.D.Cal. 1972); Morningside-Lenox Park Asso *1372 ciation v. Volpe, 334 F.Supp. 132 (N.D. Ga.1971).

As…