THE NEW RIVER VALLEY GREENS, THE SIERRA CLUB, THE NEW RIVER VALLEY :ENVIRONMENTAL COALITION Plaintiffs, vs. CIVIL ACTION U.S. DEPARTMENT OF TRANSPORTATION; No. 95-1203-R FEDERICO F. PENA, SECRETARY OF : TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; RODNEY SLATER, ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION; ROBERT E. MARTINEZ :ADMINISTRATOR, VIRGINIA DEPARTMENT OF TRANSPORTATION Defendants. _________________________________________________________________

BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND FINAL INJUNCTIVE RELIEF _________________________________________________________________

I. INTRODUCTION Ellett Valley is home to many small communities, including Ellett, Ironto, Mount Tabor, Lafayette, and Elliston, many of which have survived into this century from their beginnings in the early 1800's. Ellett Valley is als o home to a truly diverse spectrum of plant and animal species, several of which have already been threatened by development-caused habitat destruction and which have received federal or state protection as a result. Aesthetically, Ellett Valley has been described by many travelers and by those who have made a home in the Valley as the most beautiful location they have known. As important as the small, rural communities and the diversity of both game and wildlife species in the Valley is the unique character of the landowners. Many of those who inhabit the Valley have stories to tell -- of White Sulfur Springs, which served as a Confederate Hospital in the Civil War, and of ancestors who established homes in the Valley more than a century ago. Through these stories and intergenerational history comes a picture of independent, hardworking, and proud individuals who depend upon their land for their survival and who prize the forests, streams, and wild nature of the lands that surround them. This is Ellett Valley and these are the people that reside in this unique locale. This is not a case about preservationists versus developers, nor is this a case of upper income environmentalists versus state and federal highway agencies. Instead, this litigation centers on a much simpler thesis, that of an urban population refusing to live within its own means, and determined to build another framework for growth that will destroy the rural character of the region and that promises to destroy those items -1- within the Comprehensive Land Use Plan which promise that the "people of Montgomery County, both present and future, shall have clean air, pure water and the use and enjoyment of adequate recreational lands." (FEIS, III-6 ) In this respect, the natural environment and the rural inhabitants' futures are intertwined and interdependent. Succumbing to the accommodations of urbanization, the defendants in this case would have this court destroy both of these invaluable and irreplaceable resources. In many ways, this case presents the perfect example of public monies being used for private benefit -- the construction of a highway intended primarily for use by the largest University in the region - VPI & SU. In fact, the only beneficiaries of this highway will be the University for the first twenty years of the road 's existence, as only $6 million of the $98 million required for construction of the road has been allotted. See Special Notice and Application Form For the Virginia Department of Transportation: Smart Road, Montgomery County, p. 26,50 (May 3, 1996) (Exhibit #1) This case involves a challenge to the defendants' proposal to construct a multi-lane highway that will serve as a test bed for "Smart" Highway technologies and as a direct route between Roanoke and Blacksburg, Virginia . The roadway, as proposed, would force the condemnation of 140 acres of Agricultural and Forestal District (AFD) land, the displacement of six families, and the landlocking of seventy acres. See Addendum to the Final Environmental Impact Statement, prepared September 21, 1995. These are only the impacts that have been explored and which can be weighed by the decisionmaker in making an intelligent decision concerning the environmental impacts of the project and whether other alternatives should be considered. In addition, numerous impacts, including those to wildlife populations, bird populations, and plant impacts, are completely unknown, due to the failure of the defendants to prepare an adequate, comprehensive, and legal survey of these environmental -2- impacts. The "need" for the project is also called into question by this litigation because of the failure of the defendants to provide the public with information concerning the traffic models used by them. In short, the defendants have failed to meet the requirements of the National Environmental Policy Act (NEPA) and its implementing regulations by failing to properly follow the procedural mandates of the Act and its regulations. Regardless of what the real environmental impacts are, in the absence of a proper study and without supporting documentation and preparers, the commenting agencies and the participating public were unable to make an informed decision concerning the environmental impacts and the alternatives to the proposed action. The Board of Supervisors, in a carefully reasoned and supported opinion and in recognition of the unique rural character of the Valley and its wildlife, denied the Virginia Department of Transportation's attempt to condemn Agricultural and Forestal District Land for the construction of the road. This November 20th vote was a referendum of sorts, due to the intense public involvement from citizen organizations who were appalled at the waste of money, from environmental organizations who were enraged at the attempt to place an 1000+' bridge through the heart of the Valley, and from those families that owned land along the route who were never consulted by the state or federal defendants. The Board, the author of the Comprehensive Land Use Plan for Montgomery County, recognized these concerns and voted against the road and for the inhabitants and the unique rural character of the region. Although the Board eventually voted to re-consider this vote on the grounds that VDOT had submitted insufficient evidence to permit a reasoned decision, they made clear their concerns surrounding the EIS by submitting an additional list of 92 questions to the defendants for clarification and explanation of the impacts discussed within the EIS. This list of 92 questions clearly shows that the Environmental Impact Statement is not -3- the comprehensive document claimed by the federal and state defendants, but a document replete with gaps, omissions, and attempts to circumvent public involvement at every stage of its development.
II. STATEMENT OF THE FACTS The proposal for this highway, dubiously named the "SMART" highway, due to Virginia Tech's promotion of the installation of "SMART" or IVHS technologies in the roadbed, began on June 21, 1990, when the Commonwealth Transportation Board directed the Department of Transportation to begin planning a road that would serve as a link between Blacksburg and Roanoke and that would reduce congestion on Route 460 between Christiansburg and Blacksburg. As part of the overall plan to reduce congestion, project 3A was approved, which consists of a proposed connector between the Christiansburg Bypass and the Blacksburg Bypass. The Virginia Department of Transportation then began planning the "SMART " highway and produced three alternative location routes for the proposed siting of the roadway. Due to the fact that the construction of the highway was a "major federal action" significantly affecting the human environment, because of agreements for federal financing, the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. A44332 were applied to the project. In accordance with these mandates, the state defendant released a Draft Environmental Impact Statement in August of 1991. To receive comments upon the DEIS, the state defendant requested comments from state and federal agencies and held a public hearing to receive comments from individuals. At the public hearing, 217 persons attended. Of those, 139 persons announced opposition to the project, and 14 persons announced support for the project as proposed. At this meeting, the plaintiffs submitted written and oral comments -4- on the project. On February 20, 1992, the Commonwealth Transportation Board selected Alternative 6 as the best alternative for the highway. Alternative 6 consists of a five mile route extending between Interstate 81 and Alternative 3A. On March 5, 1993, a Final Environmental Impact Statement was issued which contained the comments made by comment-makers and brief responses. Alternative 6, as described in the FEIS, would result in the forced condemnation of 120.68 acres of Agricultural and Forestal District land (FEIS xii), the displacement of two families (FEIS xii), and a total cost of $80 million (FEI S, xii). The FEIS listed present traffic volumes and predicted future traffic volumes, but failed to disclose the traffic model used to generate the predictions, or the land use and individual habit assumptions used within the traffic model to generate future traffic projections. This conclusory projection was used as the central argument for the "necessity" of the project. On August 13, 1993, the FHWA and the Virginia Department of Transportation signed the Record of Decision (ROD) for the Blacksburg/Roanoke Connector. The planning process was halted by the defendants, however, when concerns were raised by the Department of the Interior concerning the presence of an endangered plant species and a possible historical landmark, a confederate cemetery. The state and federal defendants then "re-drew" half of the length of the original proposed highway and proposed a Northern and Southern Alignment for the road that avoided the plants. A biological opinion was issued by the Department of Interior on June 5, 1995 which suggested several conservation recommendations for adoption by the state and federal defendants, while stating that the defendants could proceed with construction of the highway on the Southern Alignment. On October 5, 1995, a "location" public hearing was held by the state defendant, at which an "Addendum" was released which purported to include all new information -5- and circumstances that had arisen since the issuance of the FEIS. Copies were not made available to the plaintiffs or to other interested individuals, and therefore, public comment upon the document was rendered impossible. The "Addendum" contained significant new information that was not included within the FEIS, including the change in highway alignment, the results of the Biological Opinion, additional noise impacts, changes in traffic projections, new relocation estimates, new, higher estimates of AFD land to be condemned, and a one-sentence statement concluding that the Executive Order on Environmental Justice did not apply, because no disproportionate impacts on minorities or low-income individuals would occur as a result of the project. Plaintiffs submitted extensive comments at this hearing. On October 18th, 1995, a "design" public hearing was held at which more public comments were received by the state defendant. At this hearing, the plaintiffs submitted more extensive comments, including objections to the issuance of the "addendum". Plaintiffs requested the preparation of a Supplemental Environmental Impact Statement (SEIS) that would comply with the requirements of NEPA. On November 20th, 1995, the Montgomery County Board of Supervisors voted 4 -3 to prohibit the state defendant from condemning land to enable the construction of Alternative 6. Under Virginia law, the state defendant was forced to file a "Notice of Intent to Acquire" the lands within the AFD Districts. At a meeting attended by over 140 individuals, the Board voted for the preservation of the lands within the AFD District and against the construction of the highway. Since the original filing of the complaint, the Board of Supervisors re-opened the vote, and established an Advisory Committee, which submitted ninety-two questions to the defendants to determine the effect of the project on AFD lands and forced them to submit a new Notice of Intent to Acquire AFD land. A new Notice of Intent, along with a copy of VD OT's answers to the ninety-two questions, were submitted on May 3, 1996. (See Exhibit #1) -6- Plaintiffs filed the instant suit on November 15th, 1995 requesting final injunctive relief and a judgment ordering the defendants to complete a Supplemental Environmental Impact Statement (SEIS). Plaintiffs also requested an order declaring the Final Environmental Impact Statement to be fatally deficient and a violation of federal law.

III. THE FEIS SHOULD BE REMANDED BACK TO THE DEFENDANT AGENCIES AND DEFENDANT FOR THE PREPARATION OF A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT TO ADDRESS THE CRUCIAL CONCERNS AND NEW CIRCUMSTANCES THAT HAVE ARISEN SINCE THE PREPARATION OF THE FINAL ENVIRONMENTAL IMPACT STATEMENT (FEIS) In applying the requirement that an Environmental Impact Statement be prepared, it is essential that the information relied upon be timely, to ensure that the outlined environmental impacts are accurate and precise. To ensure that accurate information is before the decisionmakers prior to the final decision to approve the project, NEPA devised a mechanism that called for the preparation of a Supplemental Environmental Impact Statement (SEIS) that would compile additional information that had been gained since the preparation of the Final Environmental Impact Statement (FEIS) and to subject the material to the notice and comment procedures provided in NEPA and its implementing regulations. See 40 CFR A41502.19 "Circulation of the environmental impact statement"; 40 CFR 1503.1 "Inviting Comments", 40 CFR A4 1503.2 "Duty to Comment", 40 CFR A41503.4 "Response to Comments". Courts have long recognized the importance of public input to the NEPA process. See People Against Nuclear Energy v. U.S. Nuc. Reg. Com'n, 678 F. 2 d 222, 234 (1982) (stating that NEPA was designed to ensure that environmental information is available to public officials and citizens before decisions are made.") -7- In fact, NEPA specifically requires agencies to prepare SEIS's whenever "the agency makes substantial changes in the proposed action that are relevant to environmental concerns" or "there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 CFR A41502.9(c). The agencies must "prepare, circulate, and file a supplement to a statement in the same fashion . . . as a draft and final statement." 40 CFR A41502.9 (c)(4). The Federal Highway Administration regulations implemented this mandate into their regulations governing the preparation of Supplemental Impact Statements. Under 23 CFR A4771.130, entitled "Supplemental environmental impact statements", the regulation declares that supplemental statements are required "whenever the Administration determines that . . . changes to the proposed action would result in significant environmental impacts that were not evaluated in the EIS; or (2) New information or circumstances relevant to environmental concerns and bearings on the proposed action or its impact would result in significant environmental impacts not evaluated in the EIS. In addition, the regulation states that a draft EIS, a final EIS, or a supplemental EIS "may be supplemented at any time." The FHWA regulation continues to outline the situations in which a supplemental environmental impact is not necessary. These situations are ones in which a "lessening of adverse impacts" will occur without causing "other environmental impacts" or a situation in which an alternative which was fully evaluated within the FEIS is chosen. However, in the latter situation, a "revised ROD" must be "prepared and circulated." Clearly, given the additional environmental effects that arose after the FEIS was issued, including the "re-drawing" of half the entire length of the roadway, and the fact that one of the other explored alternatives was not chosen, these categories would not permit the defendants to avoid the preparation of an SEIS. -8- In the instant litigation, the Final Environmental Impact Statement was signed in May of 1993 and the Record of Decision [R.O.D.] was signed in September of 1993. From the date in which the R.O.D. was signed to the date of the approval of the "addendum", which purported to cover additional information, two full years had expired. In addition, the original route of the highway had been altered to a Northern and a Southern Alignment (which affects two miles of the five mile route), in response to the discovery along the original route of a Federally protected Endangered plant species. Because of this route change, the amount of acreage of Agricultural and Forestal District (AFD) lands to be condemned by the route increased by 20% of its original total - to between 140 and 142 acres. The number of families to be dislocated by the project increased, and the impact of the new route upon headwater streams and consequently, potential water supplies was increased. In addition, nearly seventy acres (70) were reported to be landlocked as a result of the revised project. (See Addendum to the Final Environmental Impact Statement). Since the preparation of the original FEIS, the Virginia Department of Transportation had also prepared additional Cultural Resources studies, Water Quality studies, Wetlands research, and revised Air, Noise, and Relocation studies. All of these updates and revisions are recognized and admitted by the defendants, because they are explicitly mentioned within the "Addendum" to the FEIS which was prepared September 21, 1995. The "Addendum", however, carries no legal significance. The National Environmental Policy Act (NEPA) makes no mention of an "addendum". Nor do the Federal Highway Administration regulations make any references to an "addendum". In short, the issuance of an "addendum" is simply a mechanism by which the defendants have attempted to evade the notice and comment procedures explicitly mandated by NEPA and their own regulations for the careful, reasoned review of additional, new information that becomes available after the issuance of the FEIS. -9- In this case, the court is not presented with plaintiffs' merely "procedural" injuries incurred through the avoidance of public comment upon the Addendum. The avoidance of the preparation of an SEIS was a blatant attempt by the defendants to eviscerate public scrutiny of the additional information that has come to light following the issuance of the Final Environmental Impact Statement. This maneuvering has denied the plaintiffs' organizational members an opportunity to thoroughly evaluate the alternatives presented by the defendants and it allows the defendants to continue with the project in the absence of public comment concerning the highway project. To allow "addendums" to be prepared in the absence of the public notice and comment mechanism established by NEPA is to eviscerate the emphasis placed upon public involvement in the NEPA process. This includes the law's requirement that agencies must "request comments from the public, affirmatively soliciting comments from those persons or organizations who may be interested or effected." 40 CFR A41503.1 (a)(4). In short, the issuance of the "addendum" to avoid public notice, comment, and scrutiny was a breach of the law by the defendants in an attempt to facilitate the development and construction of a highly controversial roadway in the complete absence of public involvement. This attempt to evade the dictates of NEPA concerning the preparation of an SEIS is even more dangerous in situations such as this, where the public has become heavily involved in the decisionmaking process, and the project has aroused great public opposition to the projected benefits and actual costs of the project. To not give full scrutiny to new information and to fail to invite public comments on environmental considerations, is to evade, at the very least, the intent of NEPA to ensure that a "hard look" is taken at the environmental effects of the proposal. See N.W. Resource Info. C tr. v. NMFS, 56 F. 3d 1060 (9th Cir. 1995). The U.S. Supreme Court dealt with an agency's refusal to prepare a -10- Supplemental Environmental Impact Statement (SEIS) in Marsh v. Oregon Natur al Resources Council, 490 U.S. 360 (1989). In Marsh, the Supreme Court reviewed the Corps of Engineer's decision not to prepare a second Supplemental EIS to address what the plaintiffs alleged was significant new information. The original Environmental Impact Statement for the project, which consisted of the construction of three large dams, was completed in 1971, and the first Supplemental EIS was prepared and released in 1980. In the interim between the release of the SEIS and the bringing of the suit, two documents that studied the effects of the dam were released. One of the documents was an internal memorandum prepared by two Oregon Department of Fish and Wild life biologists that "suggested that the dam [would] adversely affect downstream fishing." Id. at 1857. The second document was prepared by the United States Soil Conservation Service and concerned possible downstream turbidity. Id. at 1857. The Plaintiffs claimed that the information contained within these documents constituted "significant new information" that mandated the preparation of a second Supplemental Environmental Impact Statement. The District Court concluded that "the Corps acted reasonably in relying on the opinions of independent and Corps experts discounting the significance of the new information." 628 F. Supp. 1557, 1567-68 (1986). The Court of Appeals reversed, and declared that the two documents "brought to light significant new information" that the Corps' experts had "failed to evaluate . . . with sufficient care." 832 F. 2d 1489, 1494-96 (CA9 1 987). Accordingly, the Court of Appeals concluded that a "second supplemental EIS should have been prepared." 490 U.S. at 1857. The case was appealed to the U.S. Supreme Court. The Supreme Court declared that although "an agency need not supplement an EIS every time new information comes to light after the EIS is finalized ", NEPA "does require that agencies take a 'hard look' at the environmental effects of their planned -11- action, even after a proposal has received initial approval." Id. at 1859 . The Court explained that a reviewing court must examine whether there has been a "clear error of judgment" by the agency concerning whether to prepare an SEIS. Id. at 1861. The Court then discussed the two documents raised by the Plaintiffs. The Court focused on the contents of the two research reports and stated that the Corps, through their preparation of an SIR had "carefully scrutinized the proferred information." Id. at 1864. The Court carefully analyzed the contents of the documents in an inquiry directed at discovering whether the Corps decision not to supplement the EIS was "reasonable." The Corps independent and in-depth analysis of the accuracy and significance of the information within the two documents convinced the Court that the decision by the Corps was not unreasonable. However, in a forceful statement, the Court declared that "there is li ttle doubt that if all of the information contained in the [two documents] was both new and accurate, the Corps would have been required to prepare a second supplemental EIS." Id. at 1865. The Court also held that the agency "had a duty to take a hard look at the proffered evidence", and make a determination "based on careful scientific analysis." Id. Therefore, the primary analysis of this Court should be directed at a determination of whether the defendants took a hard look based on careful scientific evidence in their decision not to supplement the EIS, and whether the new information that was produced after the preparation of the EIS was " significant." The information, unlike that in Marsh, is clearly "new" and "accurate" because it was acknowledged as such through the production of the "Addendum" by the defendants. Fourth Circuit caselaw also bears out the contention of the plaintiffs in this case that a Supplemental Environmental Impact Statement (SEIS) should have been prepared. In Hickory Neighborhood Defense League v. Skinner, 893 F. 2d 58 (4th Cir. -12- 1990), the most recent pronouncement of the Fourth Circuit on SEISs, the court declared that a "new circumstance" that presents a "seriously different picture of the environmental impact of the proposed project from what was previously envisioned" demands the preparation of an SEIS by the agency. Hickory Neighborhood at 63 (quoting Sierra Club v. Froehlke, 816 F. 2 d 205, 210 (5th Cir. 1987)). More importantly, the court stated that the reviewing court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. at 63 (emphasis added). In addition, the court explained th at this inquiry must be "searching and careful'". (quoting Marsh v . Oregon Natural Resources Defense Council, 109 S. Ct. 1861 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). In Hickory, the Circuit Court found that the discovery of two new historical landmarks, the impact upon which were "adequately and thoroughly considered in the original FEIS", was not sufficient to require a remand for the preparation of an SEIS. In the instant case, unlike Hickory, there is absolutely no reason to believe that the enlarged impacts caused by the roadway, and admitted in the "Addendum", were thoroughly considered and a "hard look" taken at the data produced after the R.O.D. and FEIS were released. The D.C. Circuit dealt with the issue of the preparation of an SEIS in People Against Nuc. Energy v. U.S. Nucl. Reg. Com'n, 678 F. 2d 222 (1982). In PANE, the court was faced with the Nuclear Regulatory Commission's decision to reopen TMI -1 at the Three Mile Island nuclear reactor in Middletown, PA. PANE alleged that the NRC was required to prepare an SEIS to evaluate two distinct environmental effects of reopening TMI-1." Id. at 226. PANE alleged that the renewed operation of the nuclear reactor "would cause 'severe psychological distress' to persons living in the vicinity of the reactor." Id. In addition, PANE contended that a "resumption of operations at TMI- would cause severe harm to the 'stability, cohesiveness and well being of the -13- communities in the vicinity of the reactor.'" Id. In ordering the agency to make an informed decision concerning the preparation of an SEIS, the court declared that "NEPA was designed to 'promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.'" Id. at 227 (citing 42 U.S.C. A44321(197 6)). The court thus remanded the administrative record back to the agency to determine whether to prepare a supplemental EIS. To guide the agency in making a reasonable determination of whether to prepare the document, the court quoted the Ninth Circuit's decision in Warm Springs Dam Task Force v. Gribble, 621 F. 2d 1017, 1024 (9th Cir. 1980), in which that court declared that. When new information comes to light, the agency must consider it, evaluate it, and make a reasoned determination whether it is of such significance as to require implementation of formal NEPA filing procedures. Reasonableness depends on such factors as the environmental significance of the new information, the probable accuracy of the information, the degree of care with which the agency considered the information and evaluated its impact, and the degree to which the agency supported its decision not to supplement with a statement of explanation or additional data. 621 F. 2d at 10 24 (emphasis added). Furthermore, the court stated that "NEPA procedures are designed to ensure that environmental information is available to public officials and citizens before decisions are made, so that environmental considerations are part of the agency's decisionmaking process." Id. at 234 (citing Weinberge r v. Catholic Action of Hawaii/Peace Education Project, 102 S.Ct. 197, 200- 203 (1981); Realty Income Trust v. Eckard, 564 F. 2d 447, 456 (D.C.Cir. 197 7); 40 CFR A41500.1(b), 1502.2(g) (1981). Finally, the court concluded that "government must not proceed to make decisions that might have a momentous effect . . . on community well-being of its citizens without first -14- giving careful, responsible consideration to the consequences its actions might have. By enacting NEPA, Congress meant to assure that no federal decision -- especially one of this importance -- would be made in the shadow of environmental ignorance." Id. at 235. The Ninth Circuit recently examined the requirement for the preparation of an SEIS in Laguna Greenbelt, Inc. v. U.S. Dept. of Transp., 42 F. 3d 517 ( 9th Cir. 1994). In Laguna Greenbelt, the Court dealt with a challenge to a proposed tollroad that was planned to extend through an ecological reserve and an undeveloped greenbelt. The plaintiffs alleged that the defendants violated NEPA "by deciding not to prepare an SEIS" after fires had erupted in the Greenbelt. Id. at 529. The court focused on whether the agencies had taken a "hard look" at the effects of the fire prior to their decision not to prepare an SEIS. The court reviewed the defendants' "reinitiation" of consultation with the Fish and Wildlife Service (to review the status of two endangered species after the fires), and the cooperation between the defendants and the Army Corps of Engineers on "runoff management" and erosion control" measures. Id. at 529. Through this analysis, the court declared that the decision by the defendants not to supplement the EIS was not "arbitrary and capricious". Id. at 530. More importantly, however, is the focus of the courts' examination, which is aimed at a determination of whether the defendant took a "hard look" at the evidence when deciding to prepare a Supplemental Environmental Impact Statement. A. THE FEIS DOES NOT EXPLAIN THE APPLICATION OF THE EXECUTIVE ORDER CONCERNING ENVIRONMENTAL JUSTICE. On February 11, 1994, after the FEIS and ROD had been issued, President Bill Clinton issued Executive Order 12898, entitled "Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations." The -15- Executive Order declared that each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States." See 59 Fed.Reg. 7629 (February 16, 1994). On September 21, 1995, in the issued "addendum" to the FEIS produced by the defendants, the Virginia Department of Transportation devoted two sentences to a discussion of the impact of the Executive Order and the DOT's own regulations on the proposed highway project. In the "addendum", the defendants stated that there will be no disproportionate impacts to minorities or low income families as a result of this project. Therefore, the requirements of EO 12 898: Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations do not apply to this project. (Addendum to the FEIS, issued September 21, 1995) Of the forty-four words expended to explain and define the issue, fifteen words are simply a re-iteration of the title of the Executive Order. No explanation exists, even within the "addendum", of the analysis or the basis for the making of this decision by the defendants. As with other portions of the FEIS, only a conclusory statement remains within the "addendum" , which was not subjected to notice and comment by the public and other state and federal agencies. Most importantly, there is absolutely no evidence that the defendants performed surveys or data collection to substantiate their conclusions that the Executive Order did not apply. At the very least, the defendants breached their statutory duty under the National Environmental Policy Act (NEPA) to "rigorously explore and objectively evaluate all reasonable alternatives" (40 CFR A41502.14) and to discuss the -16- environmental impacts" of the project. (40 CFR A41502.16). Blanket, conclusory statements of this sort have been struck by the courts as not fulfilling the mandates of NEPA and of circumventing judicial review of the decisionmaking process. See Coalition for Canyon Preservation, 632 F. 2d at 7 82 (holding that the EIS violated NEPA by making an unsupported and conclusory statement that pollution would increase with or without the project); City of Davis V. Coleman, 521 F. 2d 661, 674-77 (9th Cir. 1975) (stating that the EIS violated NEPA when the agency simply stated that the highway was accessory to inevitable industrial development.)) Further, to allow the defendants to supplement the record contemporaneously with additional information to explain the conclusory statements made within the "Addendum" simply invites "ad hoc rationalizations" of the sort prohibited by the Supreme Court in the Overton Park litigation. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). The defendants have also breached their obligations under the Executive Order to effectuate a regulatory framework under which to evaluate the effects of agency projects upon low-income and minority populations. The Executive Order mandated that the defendants, within twelve months of the issuance of the E.O., finalize its environmental justice strategy and provide a copy and written description of its strategy to the Working Group. During the 12 month period from the date of this order, each Federal agency, as part of its environmental justice strategy, shall identify several specific projects that can be promptly undertaken to address particular concerns identified during the developmen t of the proposed environmental justice strategy, and a schedule for implementing those projects. As of the date of the filing of this complaint, the defendants had failed to finalize their proposed order on Environmental Justice, entitled "Department of Transportation Proposed Order to Address Environmental Justice in Minority Populations and Low- -17- Income Populations", 60 FR 33899 (June 29, 1995). Since the Executive Order was issued on February 16, 1994, the final order was required to have been promulgated by February 16, 1995. Due to the defendants' failure to comply with the mandates of the Presidential Order, key projects, such as the SMART Highway project which is the subject of the instant litigation, were never identified. Most importantly, as a result of this delay, the possible effects of environmental injustice on the project area were never analyzed and mitigated. Thus, at the very least, the court should either remand the conclusory statement back to the defendants for an explanation of the inapplicability of the Executive Order within a Supplemental Environmental Impact Statement, or the court should issue a final injunction halting any further commitment of resources to the project, until the framework is established under the E.O. to mitigate these impacts. Otherwise, the Executive Order is meaningless, and the effects of environmental injustice will remain unanalyzed and unmitigated.

IV. THE FEIS SHOULD BE REMANDED BACK TO THE DEFENDANT AGENCIES AND DEFENDAN T FOR THE PREPARATION OF A WILDLIFE SURVEY, AN ADEQUATE BIRD SURVEY, AND AN ADEQUATE PLANT SURVEY, TO ENABLE THE DECISIONMAKERS TO MAKE INTELLIGENT, I NFORMED DECISIONS CONCERNING ALTERNATIVES TO THE PROPOSED HIGHWAY. The National Environmental Policy Act requires the inclusion in the Environmental Impact Statement (EIS) of "a detailed statement" on "the environmental impact of the proposed action" and "any adverse environmental effects which cannot be avoided should the proposal be implementee" 42 U.S.C. A44332(i) - (ii). The regulations promulgated to carry out the mandates of NEPA require that the information used within the EIS be of "high quality" and contain " accurate scientific analysis, expert agency comments, and public scrutiny 2E" 40 CFR A41500.1. In addition, -18- "environmental impact statements shall be concise, clear, and to the point, and shall be supported by evidence that agencies have made the necessary environmental analyses." 40 CFR A41500.2. Each agency must also "identify environmental effects and values in adequate detail so they can be compared to economic and technical analyses." 40 CFR A41501.2. In implementing NEPA, agencies are required to prepare Environmental Impact Statements that "serve as the means of assessing the environmental impact of proposed agency actions, rather than justifying decisions already made." 40 CFR A41502.2. Most importantly, the EIS must present the affected environment and the environmental consequences of the project. The affected environment section must "succinctly describe the environment of the area(s) to be affected or created by the alternatives under consideration. . . Data and analyses in a statement shall be commensurate with the importance of the subject, with less important material summarized, consolidated, or simply referencee" 40 CFR A41502.15. Under the CEQ Regulations, the "Environmental Consequences" section of the EIS "forms the scientific and analytic basis for the comparisons" of alternatives and must include "direct effects" of the chosen alternative, "indirect effects" of the chosen alternative, and the environmental effects of alternatives. 40 CFR A41502.16. Finally, agencies are mandated to explicitly recognize when there is "in complete" or "unavailable" information by making "clear that such information is lacking." 40 CFR A41502.22(a). In addition, if the missing or incomplete information is "relevant" to adverse impacts and is "essential to a reasoned choice among alternatives" and the costs of obtaining the information is not "exorbitant", the agency is required to include the information in the EIS. 40 CFR A41502.22(b). Agencies are also required to monitor the quality as well as the quantity of the material placed within the Environmental Impact Statement. Under 40 CFR A41502.24 -19- "Methodology and scientific accuracy", the agencies must "insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement." 40 CFR A41502.24. The importance of these requirements is evidenced by the court's interest in ensuring that the goals of NEPA are furthered by the agencies. In Sierra Club v. United States Army Corps. of Eng., 772 F. 2d 1043 (2nd Cir. 1985 ), the court stated that the "detailed statement" required under NEPA " is procedurally required because its presence evidences the fact that environmental consequences were factored into the planning stage of agency deliberations." Ie at 1049 (quoting Andrus v. Sierra Club, 442 U.S. 347, 350- 51 (1979)). In addition, the court explained that the statement "insures the integrity of the agency process by forcing it to face those stubborn, difficult-to-answer objections without ignoring them or sweeping them under the rug." Ie at 1049. The defendants, in the instant case, failed to prepare a wildlife survey for inclusion within the FEIS. Neither the pages of the FEIS nor the "Addendum" prepared to bypass SEIS mandates, contain a listing or a survey of wildlife species that will be impacted by the SMART Highway project. In light of the importance of wildlife species to the citizens of Virginia, either in a consumptive (hunting and fishing) capacity, or in a non-consumptive (bird watching, aesthetic interests) capacity, it would seem a gross omission to not conduct a wildlife survey to determine which species inhabit the study area for the project. It seems incongruent that the defendants acquiesced to the inclusion of a bird survey and the preparation of a plant survey, but omitted any consideration of the presence of wildlife species. Indeed, under the Endangered Species Act, agencies are mandated to "insure that any action authorized, funded, or -20- carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. A4153 6, ESA A47 "Interagency Cooperation". In the absence of a wildlife survey, it is impossible to discover whether the proposed activity would have an adverse impact on specific wildlife species. As Dr. Donald Linzey, a member of the Citizens' Advisory Committee for the Smart Road, states in his affidavit prepared for this litigation, Wildlife studies are a completely different matter. NO studies were ever done by the Virginia Department of Transportation nor by anyone else under contract to VDOT for this project. [See Affidavit by Dr. Donald Linzey, page 1] (Exhibit #2) The defendants did prepare a plant survey for the proposed route. The survey, however, must be held to be "arbitrary and capricious" due to the methodologies and time span used within the studies. First, the primary researcher, Ted Bradley, investigated the entire route (six miles) within a four day time period (AR-339). VDOT's contentions that 3000' on either side of the roadway corridor had been analyzed (AR-379) for environmental impacts is expressly contradicted by a scrawled sidenote on one of Bradley' s letters that reads "100 yds on either side of corridor." (AR-339). Even if this 3000' measurement were correct, and assuming that Bradley traversed 1.5 miles of the roadway length per day, he would have surveyed an improbable 47,520,000 square feet each day (3000' on either side multiplied by 1.5 miles in feet) - an improbable task for an army of botanists. In addition, as noted by the affidavit submitted by Dr. Donald Linzey, I took a wetland botanist to one site along the proposed route and, within 30 minutes he identified one rare plant that had not been included in the -21- original survey. He also questioned the identifications of several other state-monitored species, one of which is known only from Lee County in Southwest Virginia. (Affidavit of Dr. Donald Linzey, p. 1). The defendants also summarized previous bird nesting data into a bird "survey" that was placed into the pages of the FEIS. Defendants had initially failed to even prepare a cursory review of the species present, and were forced to include the information within the FEIS when the United States Department of the Interior stated that the draft statement is deficient because it does not address the requirements of the Migratory Bird Treaty Act (MBTA). Included in the Final Environmental Impact Statement should be a list of breeding birds inhabiting the project area. In order to avoid and minimize the taking of migratory birds, time-of-year restrictions must be incorporated into the project design for any activities. (AR-245) To comply with this requirement, VDOT obtained a copy of the Atlas Bird Breeding Project from the Virginia Department of Game and Inland Fisheries. VDOT pursued no independent or comprehensive survey of its own even though the Bird Survey was clearly inadequate on its face. The decision to use this survey to comply with the necessity for a comprehensive bird survey was " arbitrary and capricious" due to the outdated nature of the data, and from the obvious deficiencies of the bird "survey". First, the data used by the defendants to prepare the bird survey informat ion was derived from the Atlas Bird Breeding Project, which was conducted between 1984-1989. VDOT was aware of the deficiencies of the use of the Bird Breeding Data. Lisa Sausville, a wildlife analyst with the Commonwealth of Virginia's Department of Game and Inland Fisheries, wrote to VDOT's Paul Johnson on April 5, 1995, The Atlas project occurred from 1984-1989. . . . All quads in Virginia were divided into 6 blocks and each quad had at least 1 block surveyed -22- for breeding birds. (AR-361). Dr. Ken Cooper, an individual who has "carried out breeding bird censuses" in Montgomery and Floyd County, Virginia, declared that the FEIS breeding-bird list is a mediocre and deceptive attempt to satisfy the request of the U.S. Department of Interior without doing a thorough survey of the SMRT-6 [SMRT Highway project] corridor. (Affidavit of Dr. Ken Cooper, p. 3) (Exhibit #3). Dr. Cooper explains that the Smart Highway, as proposed, would run through Blacksburg block 4 and Ironto blocks 3 and 5. (See Cooper Affidavit, p.2). Dr. Cooper notes that Ironto blocks 3 and 5 were "surveyed in only the most cursory manner." Dr. Cooper notes that only 9 (nine) bird species were identified in both Ironto blocks. Finally, Dr. Cooper concludes that " by no stretch of the imagination could an expert survey of the area traversed by this corridor end up with only nine confirmed, probable, or possible bird species. Yet this is what the breeding-bird atlas indicates for Iron to blocks 3 and 5." (Affidavit, p. 2). Susan Leslie, a member of VDOT's CAC and participant in the breeding bird studies, explained the "non-scientific" method in which the bird data was collected. She stated that volunteer observers recorded data for blocks as species were observed, sometimes in a casual or informal manner. For example, I observed a redheaded woodpecker in the yard of a friend during a visit to her home. Because the bird had not been reported in that block, I submitted the sighting to be included in the Atlas. I did not conduct a thorough field study of the block, only noted the presence of a species that is seldom seen in our area. (Affidavit of Susan Leslie, p. 2)(Exhibit #4). In addition, Leslie noted that -23- the extremely limited information for blocks 3 and 5 of the Ironto quadrangle (i.e. one species in block 5, and eight species in block 3) indicates that bird data for a significant portion of the road are not provided in the FEIS. Data for the section of the road proposed to travel between Route 723 and Route 641, which includes portions of Ellett and Den Hill Valleys and the ridge between, are not in the report. (Affidavit of Susan Leslie, p. 2). Finally, Leslie declared that in summary it appears that a large portion of the project area has not been surveyed for the presence of specific bird species. It is my opinion that the bird data listed in the FEIS do not provide adequate information to assess the impact on the breeding birds in the area and to allow for planning to minimize the taking of migratory birds. (Affidavit of Susan Leslie, p. 3-4). This data, although deficient "on its face", was neither correlated nor independently evaluated by the defendant agencies. As stated by Dr. Donald Linzey, in his affidavit declaring the bird survey to be deficient, It [the Breeding Bird Survey] gives no information about which areas are covered, no information about the time periods during which observations were made, no information concerning the seasons of the year, nor the names and qualifications of the persons who compiled the lists. . . . No agency would identify the persons who compiled the data; thus, no one evaluating these data can verify anything contained therein. [Affidavit of Dr. Donald Linze y, page 2]. Dr. Linzey's affidavit points out that "one main quadrant involving Den Creek and a major portion of the right-of-way has only one bird listed as being present - the turkey vulture." (Affidavit of Dr. Linzey, p. 2). This shortcoming, Dr. Linzey concludes, is absolutely absurd and ridiculous and illustrates the utter lack of commitment on VDOT's part for the environmental degradation that will be severe in such rough terrain. (Affidavit, p. 2). -24- Clearly, even while reliance upon a governmental agency for such evidence is a constant practice for those preparing Environmental Impact Statements, the deficiency of the bird surveys "on their face" to offer reliable, comprehensive evidence of the impacts on the bird population, makes the decision to use the data by VDOT "arbitrary and capricious". Even VDOT's own promises to mitigate within the FEIS, in their response to the Department of the Interior comments, cannot be kept because the underlying data is incomplete. In their response to the comments submitted by the Department of the Interior, VDOT states that VDOT will coordinate potential time-of-year restrictions with DGIF- Environmental Section; and, any recommended restrictions will be considered by VDOT prior to the advertisement of the project (FEIS - Response to DOI Comments). An agency cannot use the defense of reliance upon agency information to sh ield themselves from judicial scrutiny when the information presented is clearly non-comprehensive and erroneous, as the Bird data clearly was.

V. THE FEIS SHOULD BE REMANDED BACK TO THE DEFENDANT AGENCIES AND DEFENDANT FOR A FULL ANALYSIS OF THE "NO-BUILD" OPTION AND A CONSIDERATION OF TH E REASONABLE ALTERNATIVE OF WIDENING HIGHWAY PROJECT 3A NEPA expressly requires that the EIS contain a detailed statement on alternatives to the proposed action. 42 U.S.C.S. A44332(2)(C)(iii). Courts have interpreted this provision to mandate a consideration of all reasonable alternatives. See Township of Springfield v. Lewis, 702 F.2d 426, 442 n. 29 ( 3d Cir. 1983) (Becker, J.); Natural Resources Defense Council, Inc. v. Callaway, 524 F. 2d 79, 92-93 (2d Cir. 1975); Coalition for Canyon Preservation v. Bowers, 632 F. 2d 774, 783 (9th Cir. 1980) -25- (Kennedy, J.); 40 C.F.R. A41502.14 (requiring that the EIS shall "rigorously explore and objectively evaluate all reasonable alternatives"). Courts have recognized the pivotal nature of this discussion in declaring that the discussion of reasonable alternatives is the "heart" or "linchpin" of the EIS. Natural Resources Defense Counsel v. Callaway, 524 F.2 d at 79,92 (2d Cir. 1975) ("It is absolutely essential to the NEPA process that the decisionmaker be provided with a detailed and careful analysis of the relative environmental merits and demerits of the proposed action and possible alternatives, a requirement that we have characterized as 'the linchpin of the entire impact statement.'" I-291 Why? Ass'n v. Burns, 372 F. Supp. 223, 247 (e Conn. 1974), aff'd per curiam, 517 F.2d 1077 ( 2d Cir. 1975) (stating that the requirement for a thorough study and a detailed description of alternatives "is the linchpin of the entire impact statement") (citing Monroe County Conservation Council v. Volpe, 472 F.2d 6 93, 697-98 (2d Cir. 1972)). In the end analysis, therefore, agencies are required, under the NEPA and its regulations, and an overwhelming body of precedent, to present a detailed, thorough, and careful study of all reasonable alternatives to the action. Courts have applied the concept of "reasonable alternatives" as a mandate to agencies to consider improving an existing highway as a "reasonable alternative" to building a new one. Coalition for Canyon Preservation v 2E Bowers, 632 F.2d 774, 783-84 (9th Cir. 1980)(Kennedy, J.); Farwell v. Brinegar, 5 Env't Rep Cas. (BNA) 1939, 1945 (W.e Wisc. 1973); Rankin v. Coleman, 394 F. Supp. 647, 658 (E.eN.C. 1975); I-291 Why? Ass'n v. Burns, 372 F. Supp. 223, 248-49 (e Conn. 1974), aff'd per curiam, 517 F. 2d 10 77 (2d Cir. 1975). Additionally, courts have held that the consideration of reasonable alternatives must go "beyond mere assertions and provide sufficient data and reasoning to enable a reader to consider and evaluate the agency's analysis and conclusions regarding -26- alternatives in order to comment on the EIS." Natural Resources Defense Council v. Callaway, 524 F. 2d at 93. See also Rankin v. Coleman, 394 F. Sup p. 647, 658 (E.e N.C. 1975) (concluding that the agency must go beyond mere assertions and indicate its basis during the alternatives analysis). Accord Farwell v. Brinegar, 5 Env't Rep. Cas. (BNA) 1939, 1945 (W.e Wisc. 19 73). See also, Association Concerned About Tomorrow, Inc. v. Dole, 610 F. Supp. 1101, 1112 (N.e Tex. 1985) (concluding that the agency's discussion of alternatives was inadequate because the EIS did not contain any information that would have enabled a decision-maker to draw a reasoned conclusion about the comparative environmental risks of the proposed alternatives); Smeltzer v. Adams, 11 Env't Rep. Cas. (BNA) 1367, 1372 (N.e Iowa 1978) (stating that "the narrow range of alternatives offered and the cursory analysis given those alternatives suggest that a decision has been made that a highway will be built [and] that it will be built on a new alignment. It also suggests that the defendants reached their decision without a full consideration and balancing of environmental factors."); Grazing Fields Farm v. Goldschmidt, 15 Env't Rep. Cas. (BNA) 1285, 1287-88 (eMass. 1980) (concluding that the EIS was faulty because it only briefly referred to the alternative proposed by the plaintiffs and failed to provide any an alysis of the alternative); Laguna Greenbelt, Inc. v. U.S. Dept. of Transp. , 42 F. 3d 517 (9th Cir. 1994) (holding that NEPA requires a discussion " 'in detail of all the alternatives that were feasible' and a brief discussion of why others were eliminatee"). The eC. Circuit has also explained the concept of "reasonable alternatives" in Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (eC. Ci r. 1991). In Citizens Against Burlington, the court, in an opinion authored by Judge Clarence Thomas, stated that the court would uphold an agency's discussion of alternatives "as long as the alternatives are reasonable and the agency discusses them in reasonable detail." Ie at 196. Judge Thomas declared that "an agency may not define the objectives of its -27- actions in terms so unreasonably narrow that only one alternative from among the environmentally benign ones in the agency's power would accomplish the goals of the agency's action, and the EIS would become a foreordained formality." Ie (citing City of New York v. Department of Transp., 715 F 2E 2d at 743.) In a forceful dissent in that case, the Judge relied upon Calvert Cliffs' Coordinating Comm., Inc. v. AEC, 449 F. 2d 1109, (eC. Cir 2E 1971), and stated that the EIS in the instant case failed due to its " uncritical dismissal of alternatives and its myopic view of economic consequences." Ie at 210. In his conclusion, the Judge stated that "in our first encounter with NEPA twenty years ago, we spoke of the duty to ensure that 'important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy." Ie at 1111. The Fourth Circuit has dealt with the concept of "reasonable alternatives" in several cases. In Maryland Wildlife Federation and Route #40 Advocates, Inc. v. Elizabeth H. Dole et. al, 747 F.2d 229 (4th Cir. 1984), the Fourth Circuit stated that the alternatives must be "seriously canvassed and assayed" and that a "reasonableness" standard must be applied in a judicial review of the selection of studied alternatives. District courts have ruled that the concept of "reasonable alternatives" must include " other means to achieve the transportation objective" and that the court must ensure that the defendant agency took a "hard look" at all relevant factors. Hickory Neighborhood Defense League v. James Burnley et al., 703 F. Supp. 1208, 1219 (W.eN.C. 1988). Other courts have held that the alternatives discussed must "offer or permit a reasoned choice" and that the choice will be deemed "arbitrary and capricious" if "it is derived from the applicant's unverified analysis in the face of specific objections." State of North Carolina et. al. v. Colonel Ronald E. Hudson, et. al. , 665 F. Supp. 428, 437 (E.eN.C. 1987). District Courts in the Fourth Circuit have also emphasized that "cursory -28- attention" paid to the discussion of alternatives may render an Environmental Impact Statement void because the discussion of alternatives is the " heart of the EIS". Hart & Miller Islands Area Env. Group v. Elden, 505 F 2E Supp. 732, 748 (1980). In that case, the court quoted Strycker's Bay for the contention that the alternatives analysis "should be 'sufficiently detailed to reveal the agency's comparative evaluation of the environmental benefits, costs and risks of the proposed action.'" Ie (citing 444 U.S. at 227). In a case brought by the plaintiffs to stop highway cons truction that challenged an alternatives discussion that was "one and one -half pages long" and was "conclusory, rather than factual in nature" , the Court ruled that "such conclusory statements fail to measure up to the explicit requirement in NEPA to "study, develop, and describe alternatives." Rankin v. Coleman, 394 F. Supp. 647, 658-59 (E.eN.C. 1975). Further, the court ruled that "each alternative should be presented as thoroughly as the one proposed by the agency, each given the same weight so as to allow a reasonable reviewer a fair opportunity to choose between the alternatives." Ie at 659.
A. THE "NO BUILD" OPTION WAS NOT SUFFICIENTLY EXPLORED IN THE FEIS AND VDOT MADE OVERT ATTEMPTS TO ELIMINATE MASS TRANSIT AS A REASONABLE ALTERNATIVE First, the "no build" option was not sufficiently explored within the pages of the Final Environmental Impact Statement. The FEIS cancels out this alternative in two sentences on page II-8 of the FEIS. The "Mass Transit Services" discussion section simply summarizes the status of mass transit systems in Montgomery County, and then in a conclusory fashion, declares that "none of the aforementioned options would affect the need for the proposed project." (FEIS - II-9). Nowhere in the language used in the Mass Transit section does it state the numbers of individuals that use mass -29- transit services in the area, nor any possible plans for future expansion by the Mass Transit services. VDOT was made aware of the possibilities of mass transit in the corridor through the comments of the plaintiffs during the public hearing process. At an October 18, 1995 meeting and at several earlier comment sessions, the plaintiffs submitted information concerning other mass transit systems in other cities. (See Written Comments of Shireen Parsons on behalf of the Sierra Club, October 18, 1995). The question of whether the "need" for the project would be affected by the availability of mass transit was answered in an overt manner by the FHWA. The FHWA demanded that certain information within the DEIS be deleted by VDOT. They declared that VDOT should remove the last paragraph of the Alternatives Section, remove the sentence which states "The actual completion of an improved highway route from Blacksburg to I-81 north to Roanoke would likely serve to stimulate bus and carpool services." (AR-182). Thus, the discussion of the availability of mass transit to reduce the projected levels of traffic on the highway was cut short by the federal defendants, and the finding by the VDOT that increased mass transit use would be stimulated, was removed from the Final Environmental Impact Statement. The federal defendants also had difficulty understanding the relative lack of discussion in the DEIS towards the issue of mass transit services. On page 229 of the Administrative Record, the federal defendants suggested that "more rationale as to why bus service is not a viable alternate is needee" (AR-229). Even the U.S.E.P.A., in their comments on the FEIS, stated that The Alternatives Section discusses the existing mass transit services but does not discuss the potential for improved mass transit services between Blacksburg/Christiansburg and Roanoke (page II-9). Data on -30- ridership and the potential to improve mass transit to accommodate the growing demand for trips between Blacksburg/Christiansburg and Roanoke should be assessed as a potential alternative to construction of a highway on a new alignment. (AR- 322). One of the most important developments curiously left out of the conversation concerning mass transit was a feasibility study conducted by Virginia Tech itself concerning the feasibility of mass transit services between Roanoke and Blacksburg. This study was completed by the Center for Transportation Research at VPI & SU, the same agency that conceived and has lobbied for the construction of the Test Bed in the highway. The study, entitled "Entrepreneurial Ventures For Suburban/Intercity Private Transit Operators" was submitted to the University Transportation Centers Program of the U.S. Department of Transportation. The study was carried out to investigate the profitability of an enlargement of current services of the Blacksburg Limousine Service, a mass transit company operating in the Blacksburg area. The study concluded that Overall, many expansion opportunities exist for the existing private transit operators within the Commonwealth of Virginia. Most such operators currently service the local, regional, and international airports in the state but have one or more lucrative commuter markets within their service region. While several local, state, and federal obstacles exist for such service expansions, most are surmountable. (Study, p. 42) (Exhibit #5). This data was never included in the DEIS, the FEIS, or any subsequent studies completed by VDOT and the federal defendants. The concept of mass transit in the area, the potential for expansion by existing service operators, and the potential of this alternative to reduce the "need" for the project was never discussed -31-.
B. THE REASONABLE ALTERNATIVE OF WIDENING 3A AND PLACING THE IVHS TESTBED A LONGSIDE OF 3A WAS NEVER CONSIDERED In the immediate case, the alternative was suggested to the defendants several times through written comments that a widening of 3A, a project approaching the construction phase, should be considered in the alternatives discussion of the Final Environmental Impact Statement or in a Supplemental Environmental Impact Statement. The 3A Alternative was not discussed within the pages of the FEIS and no explanation was offered for its absence from the document. The United States Environmental Protection Agency also questioned the absence of the 3A Alternative to the construction of the Smart Highway. The E.P.A. declared that The FEIS states a need for the proposed facility is "...to find a solution to the problems caused by traffic congestion between Blacksburg and Interstate 81 along the Route 460 Corridor in Montgomery County" (page i). Since alignment "3A" (the "New 460 Bypass") would significantly relieve congestion along the Route 460 corridor, EPA believes this alternative should be examined in more detail. (AR-320). E.P.A. punctuated its discussion by noting The FEIS states that an additional need of the project is: "...to serve as a test facility for IVHS 'smart highway' technology" (page i). However , "Smart highway" technology could instead be applied to the new 460 Bypass? (AR-321) The E.P.A. also noted that, more importantly, traffic projections were carried out without the consideration of this alternative. The agency stated that In addition, it appears that traffic projections were made based on the evaluation of alignment "3A" as a four lane road (page I-10) rather than as an ultimate six lane road (I-3). If alignment "3A" were considered as a six lane road with an extension to I-81, this alternative would further accomplish the purpose and need for the project and could be a viable alternative to the construction of a highway on new alignment. (AR-320) -32- VDOT and the federal defendants seem to rely on the "economic development" potential of the road and the six minutes travel time savings of the road for the trip between Blacksburg and Roanoke to nullify their responsibility to fully explore alternatives. On closer analysis, however, these reasons are not supportable under the "reasonableness" standard used by the Fourth Circuit in reviewing the adequacy of the alternatives discussion. This is primarily because these two reasons posited by the defendants could be used to support any highway that could be constructee In 394 F. Supp. 6 47 (1975), the court addressed the contention that the agency could support the construction of the highway because "economic development" would occur and therefore, other alternatives which would not provide this 'boon' did not need to be considered 394 F.Supp. 647. The court stated that this reason could be used to support any highway that was to be constructed anywhere and therefore, did not evidence the type of reasoned decision that is mandated under the requirements of the National Environmental Policy Act. The wish of the defendants to use the stretch of highway as an implementat ion site for "SMART Highway" technologies has also been advanced as an excuse that supports the non-consideration of the widening of Alternative 3A as a "reasonable alternative". Defendants contend that the location' s long, straight stretch that offers varying weather conditions make it the only plausible placement for the Smart Highway's Test Bee (Memorandum o f Dan Brugh, VDOT to Citizen Advisory Committee). However, there is no discussion within the FEIS as to why the 3A alternative was discarded from treatment and discussion as a "reasonable alternative" for a Test Bed location nor was this memorandum attached to the EIS or was it "available" or "accessible" to public comment-makers and state and federal agencies. At least one court has ruled that the EIS must stand on its own. See Coalition for -33- Canyon Preservation, 632 F.2d 774, 782 (1980). Nowhere within the pages of the DEIS or the FEIS is mentioned the existence of the widening of 3A as a reasonable alternative. Nor is there a discussion of why the alternative was discarded or what analysis went into the elimination process. This type of cursory review within the FEIS is unacceptable under the dictates of NEPA and this Circuit, which requires a "detailed and rigorous" consideration of alternatives. 394 F. Supp. 647 at 658. This treatment of the 3A alternative also "suffers from a serious lack of detail and relies on conclusions that are based on assumptions without supporting objective data." Ie at 658. The court must remand the document back to the defendant agencies to comply with these mandates if the analysis is found to fail the "rule of reason" test, which this circuit appl ies to the choice of alternatives as well as to the extent "to which [the agency] must discuss them." 505 F. Supp. 732 (1980). Since the issuance of the FEIS, the defendant agencies have admitted that not only could Alternative 3A be used as an alternative for the carrying of traffic in the area, but it could also be used as a long term or short term test bed for the Smart Highway technology. In a document submitted by the VDOT to the Board of Supervisors of Montgomery County on May 3, 1996, VDOT admitted that Alternative 3A would need to be expanded to six lanes by the year 2010, based on predicted traffic volumes. (Special Notice and Application Form, For the Virginia Department of Transportation Smart Road Montgomery County, May 3, 1996, p.47) VDOT also admitted that A long-term "Test Bed" might be constructed as a parallel lane to the proposed southbound lane between Blacksburg and the new Route 460 Bypass/Route 114 interchange. It would be separated from the bypass project by a concrete barrier. (Special Notice and Application Form, p. 32 ). -34- Clearly, these items, introduced as impeachment evidence to support plaintiff's contention that "reasonable alternatives" were not discussed within the FEIS, demand that the FEIS be remanded back to the agency for a full feasibility review of these alternatives to the project.

VI. THE FEIS SHOULD BE REMANDED BACK TO THE DEFENDANT AGENCIES AND DEFENDANT FOR AN EXPLANATION OF THE USE OF THE CHOSEN TRAFFIC MODEL WITHIN THE FEIS AND AN ANALYSIS OF THE ASSUMPTIONS USED WITHIN THAT TRAFFIC MODEL. The National Environmental Policy Act mandates that a "detailed statement" be prepared that adequately describes the "alternatives to the proposed action" and that agencies must insure that "accurate scientific analysis" is used in implementing NEPA. 40 CFR A41500.1(b); 42 U.S.C. A4 4332. Agencies must also state the "underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action." 40 CFR A41502.13. In addition, agencies are required to "insure the professional integrity, including scientific integrity, of the discussions and analyses in environmental impact statements. They shall identify any methodologies used and shall make explicit reference by footnote to the scientific and other sources relied upon for conclusions in the statement. An agency may place discussion of methodology in an appendix." 40 CFR A41502.24. The First Circuit previously ruled in Izaak Walton League of America v. Marsh, 655 F. 2d 346 (1981), that "the administrative record must disclose the studies and data used in compiling environmental impact statements. Moreover, any methodologies relied upon should be carefully described" Ie at 368. The court also -35- declared that "the impact statement must be 'sufficient to enable those who did not have a part in its compilation to understand and consider me aningfully the factors involved" Ie at 368-69 (citing Environmental Defense Fund, Inc. v. Corps of Engineers, 492 F. 2d 1123, 1136 (5th Cir. 1974) ; 40 CFR A41502.23-1502.24 (1980); W. Rodgers, Environmental Law 725-728 ( 1977)). In addition, the court declared that "without full disclosure, the public would not be able to make independent judgments about the agency's action. Moreover, disclosure is necessary if the courts are to review environmental impact statements for compliance with NEPA." Ie at 369. In addition, the court drew support from the Overton Park case, in which the Supreme Court held that a "full record" was necessary for judicial review. Ie The Second Circuit discussed the amount of detail and information required to be presented in the EIS in Sierra Club v. United States Army Corps of Eng., 701 F. 2d 1101 (1983). In that case, the court held that the court's task on review of the adequacy of an EIS was to determine whether the statement "would permit a decisionmaker to fully consider and balance the environmental factors." Ie at 1030 (quoting Sierra Club v. Morton, 510 F. 2 d 813, 819 (5th Cir. 1975)) The court also held that the agency's conclusions "must have a 'substantial basis in fact.'" (quoting FPC v. Flo rida Power & Light Co., 404 U.S. 453, 463 (1972)). In addition, the court declared that the agency must "make a reasonably adequate compilation of relevant information" and that it must "provide the basis for an informed evaluation or a reasoned decision." Ie at 1030. Finally, the court attacked the Corps decision to declare a pier area a "biological wasteland" , as being reached in a "cavalier manner" that was so conclusory that " a decisionmaker . . . could not have fully considered and balanced the envi ronmental factors." Ie at 1031 In addition, Fourth Circuit case law explicitly makes clear the proposition that summary, conclusory statements of fact are inadequate for NEPA purposes. See -36- Roanoke River Basin Assoc. v. Hudson, 940 F.2d 58 (4th Cir. 1991) (failure to explain modeling assumptions); eC. Federation of Civic Associations v. Adams, 571 F. 2d 1310 (4th Cir.1978) (EIS must provide an adequate record for the concerned planner to make an informed decision); Hart & Miller Islan ds Area Env. Group v. Eslin, 505 F. Supp. 732 (eC. MD 1980) (analysis must be "sufficiently detailed to reveal the agency's comparative evaluation of the environmental benefits, costs, and risks of the proposed action" ); Rankin v. Coleman, 394 F. Supp. 647 (E.e NC 1975) (conclusions must not be "based on assumptions without supporting objective data"). Other Circuits have held that data that is not included within the EIS that is not accessible or readily available cannot be used to substantiate the assertions made within the EIS. See Coalition for Canyon Preservation, 632 F. 2d at 782. In addition, at least one District Court has held that the evidence contained within the record must support the Agency's decision. C ity of Alma v. U.S. , 744 F. Supp. 1546 (S.e Ga 1990) (citing Avoyelles Sp ortsmen's League, 715 F. 2d at 904-05; Ethyl Corp. v. EPA, 541 F. 2d 1, 3 6 (eC. Cir. 1976) (en banc)). The FEIS does not explain how the defendants arrived at the traffic projections presented within the FEIS. Traffic models do not exist in a vacuum. They are completely dependent upon the assumptions used within the computer model. However, the complete absence of any information within the FEIS that addresses these assumptions or that even mentions the computer model that was used by the defendants eviscerates the public's opportunity to challenge and comment upon the necessity of the project. The lack of disclosure of the traffic model in the FEIS is a curious omission because VDOT went to great lengths to identify the computer models used to measure carbon monoxide levels. On III-22 of the FEIS, VDOT explains that A simplified microcomputer procedure, known as VACAL3M4, was developed by the Virginia Department of Transportation from the Federal Highway -37- Administration's MOBILE/CALINE3 Graphic Assessment Program and used to estimate expected carbon monoxide levels. A "worst case" approach was used for this analysis. The analysis assumed peak hour traffic and worst case meteorological conditions as input to the EPA's recommended MOBILE 4 emission model. (FEIS, at III-23 to III-24). The identification of the computer model used to perform these estimates allowed the E.P.A. to comment upon their methodology. The agency stated that The model used, VACAL3M4, to estimate the carbon monoxide (CO) levels associated with the proposed alternatives may underestimate the CO levels at proposed intersections. EPA suggests that the TEXIN2, CALINE4, or CAL3QHC models should be used in the Final EIS to accurately assess the CO levels at major intersections. (AR-225). Thus, the explanation of the use of the models enabled a commenting agency to evaluate the accuracy of the model being used. The plaintiffs in the instant litigation were never given this option, after repeated attempts, both orally and in written requests, to have the computer model identified to them. Indeed, the importance of the derivation of the future vehicle projection numbers for existing roadways is the foundation for the necessity for the proposed project. To make conclusory statements concerning the data produced by the traffic modeling results is to present a deux et machina to depart mental decisionmakers and to the public at large. This is clearly not the type of informed, intelligent decisionmaking encouraged by the statutory dictates of NEPA. The defendants were fully versed as to these specific problems within the DEIS and the FEIS. The plaintiff, the New River Valley Environmental Coalition, submitted extensive comments on the issue of the traffic model. In these comments, they stated that "without knowledge of VDOT's data and methodology, it's impossible for public officials and agencies, or citizen groups to evaluate the traffic projections that may cost Commonwealth taxpayers $80 million." See Comments on the Draft Environmental -38- Impact Statement by the New River Valley Environmental Coalition, October 2 0, 1991, at 1. In addition, the Coalition quoted the DEIS which stated that "a review of historic traffic trends in the study area was utilized along with accepted transportation computer modeling to determine past as wel l as future traffic development." Ie The Coalition, then proceeded, in a twenty-two page refutation, to examine the "historic" traffic trends. Ie at 1-22. Even the U.S.E.P.A. disputed the figures cited in the FEIS by the defendants concerning traffic predictions. The agency stated, in its comments to the FEIS, that The data presented in the FEIS on traffic projections and population trends does not substantiate the need to "provide a direct link between Blacksburg and Roanoke" (page i) in the form of a highway on a new alignment. A four lane alignment "3A" alternative with an extension to I-81 also provide s a direct link to I-81 . . . Moreover, a six lane alignment "3A" would further accomplish the purpose of the project. (AR-321) The E.P.A. also stated that The correlation between traffic growth and population trends should be further explained. The estimates in Table I-2 show that traffic increased by 80% between 1970-1987 and is projected to increase by 123% between 1987 and 2015. However, the population growth trends for Montgomery County show a 16.4% increase between 1980-1990 and the only estimate available for the growth rates between 1990-2000 show a 1.27% increase in population (III-7). More data is needed to provide an accurate estimate of population growth in the study area and on the correlation between population and traffic growth trends. (AR-321). The E.P.A. also stated that if the proportion of traffic on Route 460 that is currently destined for or coming from Roanoke, between 23% and 26% (page VII-6), remains the same in the year 2015, the estimated flows would range from 16,400 to 18,500 ADT (0.26 X 71,200 ADT (Table 1-2)) as opposed to 21,600 ADT as mentioned in the FEIS (page I-13). (AR-321). The defendants blatantly ignored these prepared written comments that raised -39- significant questions concerning the "necessity" of the project and refused to even address these concerns in the Comment section of the FEIS. In response to criticism that the traffic model made "future projections without analyzing population trends", the defendants replied that the studies were based on "state-of-the-art computer modeling" and that "results developed for the existing conditions verified the validity of this process." See FEIS at VII-5. A mere three pages were used by the defendants to respond to the thirty-three pages of extensive, appendixed comments submitted by the plaintiff, the New River Valley Environmental Coalition. See FEIS at VII-5 to VII-8. The Administrative Record proferred by the defendants supports the contention that the public should have been informed concerning which traffic model had been used. Without this information, of course, the public was completely excluded from being able to prepare comments on the use of the model. In comments submitted by the U.S.E.P.A., the agency commented that The data presented in FEIS on traffic projections and population trends do not substantiate the need to "provide a direct link between Blacksburg and Roanoke" (page i) in the form of a highway on new alignment. (AR-321) This type of evisceration of the requirements of public involvement demands a remand back to the agency with an order requiring the defendant agencies to disclose the traffic model used by them to generate future traffic predictions.
VII. IF FINAL INJUNCTIVE RELIEF IS NOT GRANTED, PLAINTIFFS REQUEST A JUDGMENT THAT MAKES THE DEFENDANTS' PROMISES TO MITIGATE ENFORCEABLE IN A COURT OF LAW Lower federal courts have reviewed a number of cases in which citizens have sought to enforce the promises to mitigate made by the agency within the Environmental Impact Statement. See NOE v. Metro. Atlanta Transit Auth., 48 5 F. -40- Supp. 501 (N.eGa. 1980); Ogunquit Village Corp. v. Dagis, 553 F. 2d 243 (1 st Cir. 1977). The courts have uniformly held that the citizens have no power to enforce these promises. If the Court is unwilling to grant final injunctive relief based on the fatal deficiencies of the FEIS, the plaintiffs request that they be empowered by court order to seek relief in the courts should the defendants breach the various promises to mitigate made within the pages of the FEIS.
VIII. CONCLUSION Throughout the history of the SMART Highway Project, one contention seems abundantly clear: that the defendants have sought to "fast-track" the SMART Highway project by ignoring realistic public concerns about the "necessity" of the project, by refusing to prepare adequate environmental studies of the proposed study area, and by refusing to prepare a Supplemental Environmental Impact Statement to insure the implementation of intelligent, thoughtful decisionmaking. Instead, despite legitimate citizen attempts to develop a highway that responded to environmental concerns, the defendant s have steadfastly used the public comment process and the FEIS itself as simply an annoyance and a nuisance to their predetermination of the highway' s route, its construction, and its supposed benefits. This is clearly a case in which the court must use NEPA to ensure that intelligent, thoughtful decisionmaking occurs that uses reasonable judgments a nd that discloses enough information to commenters to meaningfully involve the public. To do otherwise would allow the defendants to continue to make a mockery of even the procedural protections required by federal law. To enforce the dictates of NEPA requires a remand of the record back to the -41- defendants for the intelligent, reasoned decisionmaking that involves the public -- something that NEPA requires and a process that is socially and environmentally preferable. To allow the construction of an expensive highway without the knowledge of what the true costs of the project are reminiscent of a Robert Frost declaration, that "before I built a wall/ I'd ask t o know what I was walling in -- or walling out." See Coalition's Comments on DEIS, p. 22.

WHEREFORE, the Plaintiffs urge this Court to GRANT Final Injunctive Relief to enjoin the construction of the proposed highway until a Supplemental Environmental Impact Statement is prepared to remedy the deficiencies contained within the FEIS. For the Plaintiffs, _________________________ Samuel Swindell, Esq. V.S.B. # 39158 Kratman, Pethybridge & Swindell 200 North Main Street Blacksburg, VA 24060 (540) 961-0708 Dated: June _____, 1996.

-42- COMMONLY USED ACRONYMS IN NATIONAL ENVIRONMENTAL POLICY ACT CASES

Addendum Filed after the Final Environmental Impact Statement to explain additional impacts

CEQ Council of Environmental Quality

COE Corps of Engineers

DEIS Draft Environmental Impact Statement

EO Executive Order

FEIS Final Environmental Impact Statement

FHWA Federal Highway Administration

IVHS Intelligent Vehicle Highway Systems

NEPA National Environmental Policy Act, 42 U.S.C. A44331 et seq.

ROD Record of Decision

SEIS Supplemental Environmental Impact Statement

VDOT Virginia Department of Transportation

LIST OF EXHIBITS

Exhibit #1 Special Notice and Application Form for the Department of Transportation Smart Road, Montgomery County (May 3, 1996)
Exhibit #2 Affidavit of Dr. Donald Linzey
Exhibit #3 Affidavit of Dr. Ken Cooper
Exhibit #4 Affidavit of Ms. Susan Leslie
Exhibit #5 Center for Transportation Research Virginia Polytechnic Institute and State University Submitted to University Transportation Centers Program U.S. Department of Transportation, "Entrepreneurial Ventures For Suburban/ Intercity Private Transit Operators (August 3, 1989).

TABLE OF CONTENTS I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . .1

II. STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . .4

III. THE FEIS SHOULD BE REMANDED BACK TO THE DEFENDANT AGENCIES AND DEFENDANT FOR THE PREPARATION OF A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT TO ADDRESS THE CRUCIAL CONCERNS AND NEW CIRCUMSTANCES THAT HAVE ARISEN SINCE THE PREPARATION OF THE FINAL ENVIRONMENTAL IMPACT STATEMENT (FEIS) . . . . . . . . . . . .7

A. The FEIS Does Not Explain the Application of the Executive Order Concerning Environmental Justice . . . . . . . 15

IV. THE FEIS SHOULD BE REMANDED BACK TO THE DEFENDANT AGENCIES AND DEFENDANT FOR THE PREPARATION OF A WILDLIFE SURVEY, AN ADEQUATE BIRD SURVEY, AND AN ADEQUATE PLANT SURVEY, TO ENABLE THE DECISIONMAKERS TO MAKE INTELLIGENT, INFORMED DECISIONS CONCERNING ALTERNATIVES TO THE PROPOSED HIGHWAY. . . . . . . . . . . .18

V. THE FEIS SHOULD BE REMANDED BACK TO THE DEFENDANT AGENCIES AND DEFENDANT FOR A FULL ANALYSIS OF THE "NO-BUILD" OPTION AND A CONSIDERATION OF THE REASONABLE ALTERNATIVE OF WIDENING HIGHWAY PROJECT 3A. . . . . . . . .25

A. The "No Build" Option was not Sufficiently Explored in the FEIS and VDOT made Overt Attempts to Eliminate Mass Transit as a Reasonable Alternative. . . . . . . . . . . .29

B. The Reasonable Alternative of Widening 3A And Placing the IVHS Testbed Alongside of 3A Was Never Considered. . . . . . . . . . . . . . . . . . . . . . . . 32

VI. THE FEIS SHOULD BE REMANDED BACK TO THE DEFENDANT AGENCIES AND DEFENDANT FOR AN EXPLANATION OF THE USE OF THE CHOSEN TRAFFIC MODEL WITHIN THE FEIS AND AN ANALYSIS OF THE ASSUMPTIONS USED WITHIN THAT TRAFFIC MODEL . . . . . . . . . . . . . . . . . . . . . . . . .35

VII. IF FINAL INJUNCTIVE RELIEF IS NOT GRANTED, PLAINTIFFS REQUEST A JUDGMENT THAT MAKES THE DEFENDANTS' PROMISES TO MITIGATE ENFORCEABLE IN A COURT OF LAW. . . . .40

VIII. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . 41

TABLE OF CITED AUTHORITIES

CaseLaw Supreme Court Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989). . . . 11-12
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). . . . . 13
Weinberger v. Catholic Action, 102 S.Ct. 197 (1981). . . . . . . . . . 14
Andrus v. Sierra Club, 442 U.S. 347 (1979). . . . . . . . . . . . . . 20
FPC v. Florida Power & Light Co., 404 U.S. 453 (1972). . . . . . . . . .36
Other Federal Cases (listed in Order of Appearance) N.W. Resource Info. Ctr. v. NMFS, 56 F. 3d 1060 (9th Cir. 1995). . . . . . 10
Hickory Neighborhood Defense League v. Skinner, 893 F. 2d 58 (4th Cir. 1990 ). 12
Sierra Club v. Froehlke, 816 F. 2d 205 (5th Cir. 1987). . . . . . . . . . .13
People Against Nuclear Energy v. U.S. NRC, 678 F. 2d 222 (1982). . . . .13-14
Warm Springs Task Force v. Gribble, 621 F. 2d 1017 (9th Cir. 1980). . . . .14
Realty Income Trust v. Eckard, 564 F. 2d 447 (D.C. Cir. 1977). . . . . . . .14
Laguna Greenbelt, Inc. v. U.S. Dept. of Transp., 42 F. 3d 517 (9th Cir. 199 4). .15
City of Davis v. Coleman, 521 F. 2d 661 (9th Cir. 1975). . . . . .. . . . . 17
Sierra Club v. U.S. Army Corps of Eng., 772 F.2d 1043 (2nd Cir. 1985). . . . 20
Township of Springfield v. Lewis, 702 F.2d 426 (3d Cir. 1983). . . . . . . . 25
NRDC, Inc. v. Callaway, 524 F.2d 79 (2d Cir. 1975). . . . . . . . . . . . .25
Coalition for Canyon Preservation v. Bowers, 632 F.2d 774 (9th Cir. 1980). . 25
I-291 Why? Ass'n v. Burns, 372 F. Supp. 223 (D. Conn. 1974). . . . . . . . 26
Monroe County Conservation Council v. Volpe, 472 F. 2d 693 (2d Cir. 1972). .26
Farwell v. Brinegar, 5 Env't Rep. Cas. (BNA) 1939 (W.D. Wisc. 1973). . . . 26
Association Concerned About Tomorrow, Inc. v. Dole, 610 F. Supp. 1101. . 27
(N.D. Tex. 1985) Smeltzer v. Adams, 11 Env't Rep. Cas. (BNA) 1367 (N.D. Iowa 1978). . 2E . 27
Grazing Fields v. Goldschmidt, 15 Env't Rep. Cas. (BNA) 1285 (D. Mass 198 0)..27
Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991). . . 27
Calvert Cliffs Coordinating Comm., Inc. v. AEC, 449 F.2d 1109 (D.C. Cir. 19 71).28
Maryland Wildlife Federation v. Dole, 747 F.2d 229 (4th Cir. 1984). . . . . . 28
State of North Carolina v. Hudson, 665 F. Supp. 428 (E.D. N.C. 1987). . . . . 28
Hart & Miller Islands Area Envt'l Group v. Elden, 505 F. Supp. 732 (D. MD 1980).29
Izaak Walton League of America v. Marsh, 655 F.2d 346 (1981). . . . . . . .35
EDF, Inc. v. Corps of Engineers, 492 F.2d 1123 (5th Cir. 1974) . . . . . . . . .36
Sierra Club v. United States Army Corps of Eng., 701 F.2d 1101 (1983). . . . .36
Sierra Club v. Morton, 510 F.2d 813 (5th Cir. 1975) . . . . . . . . . . . . . 36
D.C. Federation of Civic Associations v. Adams, 571 F.2d 1310 (4th Cir. 197 8). .37
Roanoke River Basin Assoc. v. Hudson, 940 F.2d 58 (4th Cir. 1991). . . . . . 37
City of Alma v. U.S., 744 F. Supp. 1546 (S.D. Ga 1990) . . . . . . . . . . . 37
Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) . . . . . . . . . . . . . . . 37
Statutes Cited National Environmental Policy Act, 42 U.S.C. A44331 . . . . . . . . passim Council of Environmental Quality regulations, Title 40 C.F.R. A41500 . . passim 23 C.F.R. A4771.130 . . . . . . . . . . . . . . . . . . . . . . . . .8

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA THE NEW RIVER VALLEY GREENS, THE SIERRA CLUB, THE NEW RIVER VALLEY ENVIRONMENTAL COALITION Plaintiffs, v. CIVIL ACTION U.S. DEPARTMENT OF TRANSPORTATION; No. 95-1203-R FEDERICO F. PENA, SECRETARY OF TRANSPORTATION; FEDERAL HIGHWAY ADMINISTRATION; RODNEY SLATER, ADMINISTRATOR, FEDERAL HIGHWAY ADMINISTRATION; ROBERT E. MARTINEZ ADMINISTRATOR, VIRGINIA DEPARTMENT OF TRANSPORTATION : Defendants. _________________________________________________________________ PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND FINAL INJUNCTIVE RELIEF
__________________________________________________________________
Plaintiffs in the above-captioned case respectfully request this court to G RANT their Motion for Summary Judgment and Final Injunctive Relief for the following reasons: 1. Defendants' failure to prepare a Supplemental Environmental Impact Statement after substantial alterations were made to the route of the Smart Highway violated the provisions of the National Environmental Policy Act and the regulations promulgated under the authority of that statute; 2. Defendants' failure to explain the non-applicability of the Executive Order on Environmental Justice violated the provisions of the National Environmental Policy Act and defendants' failure to produce a final Environmental Justice plan violated the provisions of the Executive Order; 3. Defendants' failure to compile a wildlife study, and the preparation of an inadequate bird and plant survey violated the National Environmental Policy Act; 4. Defendants' failure to consider "reasonable alternatives" to the construction of the highway violated the National Environmental Policy Act; 5. Defendants' failure to disclose the traffic model used to generate future traffic volumes violated the National Environmental Policy Act. WHEREFORE, plaintiffs request that this court grant FINAL INJUNCTIVE RELIEF and ORDER the Defendants to prepare and circulate a Supplemental Environmental Impact Statement prior to any further planning or construction activity related to the Smart Highway. For the Plaintiffs, _________________________ Samuel Swindell, Esq. V.S.B. # 39158 Kratman, Pethybridge & Swindell 200 North Main Street Blacksburg, VA 24060 (540) 961-0708 Dated: June _____, 1996.

CERTIFICATE OF SERVICE OF PROCESS As counsel for the Plaintiffs in the case of The New River Greens v. U.S. Department of Transportation, I certify that the foregoing MOTION FOR SUMMA RY JUDGMENT AND FINAL INJUNCTIVE RELIEF and the BRIEF IN SUPPORT OF PLAINTI FF'S MOTION FOR SUMMARY JUDGMENT AND FINAL INJUNCTIVE RELIEF, were served to the Defendants by the following method: FIRST CLASS U.S. MAIL The documents listed above were sent to the following individuals: John Corcoran, Asst. United States Attorney Counsel for U.S.DOT, Pena, and Slater Post Office Box 1709 Thomas B. Mason Building 105 Franklin Road, S.W. Suite One Roanoke, Virginia 24011-1709 I swear that the above is true and correct to the best of my knowledge. ___________________________ Samuel Swindell, Esq. V.S.B. # 39158 Kratman, Pethybridge & Swindell 200 North Main Street Blacksburg, VA 24060 (540) 961-0708 Dated: This ______ day of June, 1996.