COMPLAINT Plaintiffs bring this action against the U.S. Department of Transportation, Federal
Highway Administration, the Administrator of the Federal Highway Administration, and the
Administrator of the VA Department of Transportation in their capacities as heads of their respective
agencies and in the case of the Administrator of the Virginia Department of Transportation, in his
individual capacity, and alleges that:

I. The Parties

1. The Plaintiff, the New River Valley Greens, is an unincorporated association, whose members are
encouraged to work on issues that they find important to them which also promote and sustain the ten key values of the Greens. These ten key values are: eco logical wisdom, grassroots democracy,
personal and global responsibility, social justice, non-violence, decentralization, community-based
economics, post-patriarchal values, respect for diversity and future focus/sustainability. New River
Green members li ve in the New River Valley in Blacksburg, Christiansburg, and Radford.

2. Defendants Department of Transportation and the Federal Highway Administration are U.S.
government agencies.

3. Defendant, Federico F. Pena, is the Secretary of the Department of Transportation, in his official
capacity.

4. Defendant, Rodney Slater, is the Administrator of the Federal Highway Administration, in his
official capacity.

5. Defendant Robert E. Martinez is the Administrator of the Virginia Department of Transportation
(VA DOT) and is being sued in his individual capacity as acting ultra vires to his legal authority in
approving the Final Environmental Impact Statement.

II. JURISDICTION

6. The jurisdiction of this court is conferred by and invoked pursuant to federal question jurisdiction
under 28 U.S.C. ¤1331.

7. The jurisdiction of this court is also conferred by and invoked pursuant to the Administrative
Procedure Act, 5 U.S.C. ¤702, and ¤704.

8. The jurisdiction of this court is also conferred by and invoked pursuant to 28 U.S.C. ¤1346 by
virtue of the naming of one agency of the U.S. Government as defendant to this action.

III. STATEMENT OF THE CLAIM
Background

9. On June 21, 1990, the Commonwealth Transportation Board recommended that the Department
of Transportation initiate studies that would consider the construction of additional highways that
would achieve two goals - to serve as a link from Blacksburg, VA to Roanoke, VA and that would
serve as a "smart highway" project.

10. On June 21, 1990, the Commonwealth Transportation Board approved the location for
Alternative 3A (hereinafter New Bypass) for construction.

11. Project 3A consists of a constructed connector between the Christiansburg Bypass and the
Blacksburg Bypass whose purpose is to reduce congestion in the Route 460 area.

12. To accomplish the second announced goal of the Commonwealth Transportation Board, the
provision of a more direct route from Blacksburg to Roanoke, the VA Department of Transportation [hereinafter VA DOT] undertook a study to determine possible routes for this new highway.

13. The VA DOT produced three alternative location routes for the proposed siting of the
Blacksburg to Roanoke highway. These were designated as Alternative 6, Alternative 7, and
Alternative 10.

14. In August of 1991, the VA DOT released a Draft Environmental Impact Statement that
designated Alternative 6 as the chosen alternative with the least environmental impacts. Plaintiff
organizations submitted comments concerning the Draft Environmental I mpact Statement.

15. On September 26, 1991, a public hearing was held by the VA DOT to receive public comments
concerning the location of the highway. A total of 217 persons attended the public hearing.

16. Of the 217 that attended the hearing, 139 persons were opposed to the project, and 14 persons
were in favor of the project. Also received into the administrative record was a petition from 33
Montgomery County residents opposing the project and a reso lution from the Montgomery County
Board of Supervisors supporting the project. Plaintiffs submitted comments concerning the impacts of the proposed highway into the administrative record.

17. On February 20, 1992, Alternative 6 was selected by the Commonwealth Transportation Board
as the best possible route from an examination of several factors, including the goal of relieving
present and future congestion on existing Route 460, of provid ing a high-speed direct link between
Roanoke and Blacksburg, of minimizing the impact to the environment by avoiding environmentally
sensitive areas, and by analyzing the costs of the proposed improvements.

18. On March 5, 1993, the Final Environmental Impact Statement (FEIS) was approved by the
Chief Engineer of the Virginia Department of Transportation.

19. On May 26, 1993, the FEIS was approved by the Director of the Office of Planning and
Program Development of Region 3 of the Federal Highway Administration [hereinafter FHWA].

20. On August 13, 1993, the FHWA and Virginia Department of Transportation signed the Record
of Decision (ROD) for the Blacksburg/Roanoke Connector.

21. On June 5, 1995, the Fish and Wildlife Service, Department of the Interior issued a Biological
Opinion in compliance with Section 7(a)(2) of the Endangered Species Act (ESA)(16 U.S.C. ¤1531 et seq.). The Biological Opinion concerned the existence of a federally endangered plant species in
the path of the proposed highway.

22. The Biological Opinion contained a list of recommendations for the defendants to undertake,
including the purchase of conservation easements, restriction of seeding activities, restriction of exotic species introduction, and stringent controls on herb icide applications in the area surrounding the
habitat of a federally endangered plant species.

23. On October 5, 1995, a public "information" hearing concerning the FEIS was held by the VA
DOT. At this public hearing an "addendum" was released, which purported to contain new
information gained by the VA DOT during the period after the signing of th e Record of Decision
(ROD).

24. The "addendum" contained significant new information that was not stated in the Final
Environmental Impact Statement, concerning a complete change of highway alignment, additional
noise impact, air quality, changes in traffic projections, and a conclu sion that the Executive Order on
Environmental Justice did not apply because the project would not have a disproportionate impact on low-income individuals.

25. On October 18, 1995, a "design" public hearing was held at which more public comments
were received by the VA DOT. Plaintiff submitted extensive oral and written comments at this public
hearing which included an objection to VDOT's refusal to prepare a Supplemental Environmental
Impact Statement (SEIS).

26. On September 11, 1995, the VDOT submitted a Notice of Intent to Acquire between 140-142
acres of Agricultural/Forestal District land to the Montgomery County Board of Supervisors. The
FEIS declared that only 120.68 acres of AFD land would be necessary for the project.

27. On September 25, 1995, the Board of Supervisors decided to postpone a decision on the
Notice of Intent to Acquire until a public hearing was held to determine whether the AFD lands
should be condemned. A public hearing was set for November 15, 1995 at 7:00 p.m.

28. The ROD is a "final agency action" as defined by the Administrative Procedure Act, at 5
U.S.C. ¤704.

29. The Blacksburg/Roanoke Connector (Alternative 6) is a "major federal action" that
"significantly affect[s] the quality of the human environment" and is thus subject to the requirements
of the National Environmental Policy Act [hereinafter NEPA], codif ied at 42 U.S.C.A. ¤4331 et
seq.

30. The FHWA regulations that direct the Agency's compliance with the NEPA are promulgated at
23 C.F.R. part 771 et seq.

31. The Council on Environmental Quality has promulgated regulations to define NEPA's
terminology and intent at 40 C.F.R. part 1500 - 1517.

32. Under 40 C.F.R. ¤1502.1, the Agency must "provide full and fair discussion of significant
environmental impacts and shall inform decisionmakers and the public of the reasonable alternatives
which would avoid or minimize adverse impacts or enhance the quality of the human environment.
Agencies shall focus on significant environmental issues and alternatives. . . Statements shall be
concise, clear, and to the point, and shall be supported by evidence that the agency has made the
necessary environmental analysis."

33. Under 40 C.F.R. ¤1502.2, the Agency is required to discuss impacts "in proportion to their
significance."

34. The two central justifications for the Blacksburg/Roanoke Connector (Alternative 6) are to
reduce congestion on Route 460 in and around Christiansburg and to provide a direct route between
Blacksburg and Roanoke.

35. Plaintiff would be adversely affected by the construction of the Blacksburg/Roanoke Connector
(Alternative 6) in the following ways: A. Linda and Gary Vaught are members of the New River
Valley Greens and are landowners who reside at 2195 Den Hill Road in Christiansburg, Virginia.
Their home and land are located approximately 550 feet from the right of way for the highway
project. The y would be concretely adversely affected by the road construction, the noise produced
by traffic on the highway, reduction in property values, and the visual impacts that they would suffer
from being in close proximity to the roadway. B. Belva Parrott is a member of the New River Valley
Greens and is a landowner who resides at 2187 Den Hill Road in Christiansburg. Her home and land are located approximately 600 feet from the right of way for the highway project. She would be
concretel y adversely affected by the road construction, the noise produced by traffic on the highway, reduction in property values, and the visual impacts that she would suffer from being in close
proximity to the roadway.

36. The Plaintiff organization has "standing" to sue based upon the concrete, adverse impacts and
potential future impacts experienced by members of the Plaintiff organization. COUNT I
DEFENDANTS' VIOLATIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT

37. The Defendants did not fully consider the no-build alternative in the planning process and in the
FEIS, and thus violated 40 C.F.R. part 1502.14 and 23 C.F.R. part 771.111(h)(2)(v)(a-e).

38. The Defendants did not adequately consider the alternatives to the construction of the highway,
giving inadequate and conclusory treatment to the subject of mass transit services and transportation
systems management, and the possibility of enlarging the 3A alternative, in violation of 42 U.S.C.
¤4332(C)(iii) and the subsequent regulations at 40 C.F.R. part 1502.14 which requires agencies to
"[r]igorously explore and objectively evaluate all reasonable alternatives", and to "[d]evote
substantial treat ment to each alternative considered in detail including the proposed action so that
reviewers may evaluate their comparative merits."

39. The defendants completed an inadequate bird survey and failed to prepare a wildlife survey for
the purposes of the Environmental Impact Statement and the inadequate survey and the non-existent
survey did not allow the VDOT to make a reasonable decisio n concerning the impacts of the
project, in violation of 42 U.S.C. ¤4332 (C) and the subsequent regulations at 40 CFR part 1502.2
and 1502.16. The bird survey was inadequate because it used outdated information of bird surveys
and it lacked comprehensiven ess, listing only one species of bird in one entire study area.

40. The defendants prepared an inadequate plant survey, thus preventing the defendants from fully
considering the impact of the highway project on existing plant species in the area of the highway
project, in violation of 42 U.S.C. ¤4332 (C) and the subse quent regulations at 40 CFR part 1502.2
and 1502.16 and 1502.22 and 1502.24. The plant survey was conducted over a period of days for
sections of the highway, an inadequate process under NEPA's mandate of extensive environmental
impact analysis.

41. The defendants violated 42 U.S.C. ¤4332 (C) and the subsequent regulations at 40 CFR part
1502.17 by not providing a complete list of preparers of the bird and plant surveys within the
Environmental Impact Statement (EIS).

42. The defendants violated 42 U.S.C. ¤4332 (C) by failing to provide to the public, through the
EIS, the traffic model used to project future traffic volumes, thus eliminating the ability of
policymakers and the public to analyze the strengths and weakne sses of the traffic projections, upon
which the need for the project rests. The traffic modeling information was neither accessible nor
readily available to the commenting public.

43. The defendants violated 42 U.S.C. ¤4332(C) and 40 CFR ¤1502.24 by making an "arbitrary
and capricious" choice in applying an inadequate traffic model to determine future vehicle traffic to
support the need for the highway. The traffic model incorporat ed by the defendants did not
incorporate conservation measures and other assumptions into its calculations.

44.The defendants violated 40 CFR ¤1502.9 and 23 CFR ¤771.130 by not compiling the additional information contained within the "addendum" into a Supplemental Environmental Impact Statement
(SEIS) to be subjected to NEPA requirements for public notice and comment. An SEIS was made
necessary by the changes to the roadway due to the discovery of an endangered plant species along
the original route, the original failure of the defendants to consider Executive Order 12898, the
proposed construction of addition al bridges, the revision of the acres of Agricultural/Forestal
Districts to be condemned by the roadway, the revisions in the numbers of relocated individuals, and
the revisions in the cost estimates for the construction. Count II Environmental Justice

45. The Defendants acted arbitrarily and capriciously and abused their discretion in proceeding with
planning and construction of the highway in violation of Executive Order 12898, "Federal Actions to
Address Environmental Justice in Minority Populations and Low Income Populations." The
construction of the highway is also in direct conflict with the Department of Transportation's own
"Proposed Order to Address Environmental Justice in Minority Populations and Low Income
Populations", published at 60 FR 33 899. In addition, the defendants failed to explain their
conclusion in either the FEIS or the "addendum" that the Executive Order did not apply to the
project.

46. The proposed highway project has a disproportionate impact on low-income families and
individuals, due to the number of low income individuals who would be displaced by the project.
Count III Administrative Procedure Act (APA)/ESA

47. The defendants acted arbitrarily and capriciously and abused their discretion in not implementing
the "conservation recommendations" provided by the Fish and Wildlife Service under the authority
of the Endangered Species Act (ESA), 16 U.S.C. ¤1531 et seq. IV. Demand for Judgment For
Relief Plaintiff requests this court grant the following relief: (a) That the court declare that the agency
decisionmaking, including but not limited to the ROD, the EIS, and other approvals, failed to comply
with NEPA, the APA, and the ESA; (b) That the court declare that the Plaintiff will be adversely
affected by the Project; (c) That the court remand the matter for the preparation of a new ROD
following a full environmental impact review in compliance with NEPA; (d) That the court enter an
order requiring that all revisions to the EIS required by this decision be separately set forth in a
supplement to the EIS, which clearly describes the revisions and their rationale, and that the
supplement be resubmitted to al l decisionmakers who used the invalid EIS prior to the preparation
of a new ROD; (e) That the court grant final injunctive relief against further commitment of resources
to the Project, or its continued design and construction, until such time as a new ROD is issued in
compliance with all requirements of law which authorizes such comm itment of resources or design
and construction of the Project; (f) That the court, in its discretion, award reasonable attorney's
fees, expert witness fees and court costs to plaintiff as provided through the Equal Access to Justice
Act, 28 U.S.C. ¤2412 (b), and (d); (g) That in the alternative to the above remedies, if the court
deems the EIS to be adequate, that the court issue an order requiring the defendants to ensure to the
plaintiff that all mitigation measures outlined in the EIS are being fully complied with, and that the
court preserve the plaintiff's ability in the future to bring suit to ensure that the mitigation measures
are being complied with; (h) Such further and additional relief as this court deems to be appropriate.
WHEREFORE, the Plaintiff, pro se, respectfully requests the Court to enjoin construction of the
project until the defendants comply with the mandates of the National Environmental Policy Act, the
Executive Order on Environmental Racism, and the Endangere d Species Act. Signed, The New
River Valley Greens, pro se By ________________________________ Michael Scanlon, pro se
907 Progress Street Blacksburg, VA 24060 (703) 552-8755

ORAL ARGUMENT New River Valley Greens v. FHWA June 13, 1997 I. THEME and HISTORY of the SMART HIGHWAY (Segmentation) If a Theme had to be applied to the planning and design of the Smart Highway it would be "The Defendants Rush for Funding". Operating under a year 2002 deadline for federal funding of IVHS Demonstration Projects has forced the Defendants to circumvent the National Environmental Policy Act, mislead local governments, and ignore local opposition. The importance of this deadline has been recognized by both VDOT staff and by Virginia Tech. Tech's Center for Transportation Research, in a presentation to VDOT, stated that the road was "not a demonstration project, A National Laboratory: We must make t he road credible and not just another connector in order to find advocates in government positions. We want to position ourselves as the prototype facility for NAHSC by 2002." Reply Br. at 5. At a Citizens Advisory Council Meeting, VDOT's resident engineer stated that "it is in conjunction with the AHS consortium that they need to have an operational test somewhere in the year 2002 and this is one of the sites under construction." Reply Br. at 5. The defendant's attitude towards NEPA requirements was expressed early in the process at a meeting between the FHWA and VDOT in which the participants agreed that "if the project became highly controversial, an EIS would then be written." 102 AR #1. This memorandum, entitled "Meeting to Discuss Environmental Document Requirements for the Blacksburg/Roanoke Connector, an Intelligent Vehicle Highway Systems (IVHS) Project, was prepared on October 22, 1990, a full year before even the Draft Environmental Imp act Statement was produced. "A Rush for Funding" - transformed supposedly objective highway agencies into salesmen for a project that only promises to elevate the prestige of the Defendant and Virginia Tech to a national corporate-backed consortium pushing for smart highway technology. This Rush for Funding is evident now that the Virginia Department of Transportation has issued two new environmental documents - the Addendum, which was the subject of the earlier lawsuit, and the Environmental Reevaluation, which, for the first time, pub licly discloses plans to install air compressors, snowmakers, communication towers, energy grids, research trailers, access roads...and the list goes on. This Rush is most clearly seen when examining the Draft and Final Environmental Impact Statements, which utter not one solitary word about the installation of this additional IVHS structure. Yet in the rush for funding, the project was sold with all of these great benefits - over $100 million in research monies - its proponents claim - yet curiously with no mention of the actual costs of the project. The omission of any consideration of the IVHS infrastructure in the environmental documents is even more curious for one central reason: the 5.9 million in federal funding given to the project was the only reason that the defendants complied with NEPA, for that money was given specifically for "construction of a 6 mile 4 lane highway to demonstrate intelligent/vehicle systems." Yet no analysis of anything beyond the physical construction of the highway was presented in the environmental documents. So on the one hand we have the defendants admitting that the IVHS testing on the highway was present since the project's inception, yet the environmental documents prepared for the project omit any mention of the installation of the hardware, and treat th e IVHS portion of the highway as an entirely separate project. In fact, the defendants expressly admit that the IVHS infrastructure and the physical construction of the highway are one project. From the defendant's Reply Brief, "Defendants in this case have never disputed that the ITS infrastructure and the conventional highway portions of the project are interrelated." Def. Rep. Br. at 9. A brief timeline shows how the project was sold to the public without enabling the public or other agencies to engage in a cost/benefit analysis - thus producing what many local residents have termed "A Done Deal". As much as a year before the release of the Draft Statement, Elizabeth Gresham, the Environmental Specialist for the Virginia Department of Transportation, was selling the highway to commentmakers as "a test facility for the development of smart highway technology." On August 21, 1991, the Defendants released the Draft Environmental Impact Statement on the Smart Highway to the public. On December 18, 1991, the Intermodal Surface Transportation and Efficiency Act (known as ISTEA) was passed, providing 5.9 million for the construction of a highway specifically to "demonstrate intelligent/vehicle highway systems.". On March 26, 1993, the Defendants released the Final Environmental Impact Statement on the Smart Highway to the public. On September 14, 1995, the Defendants released an Addendum to the Final Environmental Impact Statement. In November of 1995, the corridor for Interstate 73 was approved -- this corridor includes the use of the Smart Road for traffic. In fact, as admitted by the defendants in their Answers to the Supervisors, "the Smart Road has been designed to interstate standards since the beginning of the project." A.Rec. at 750 of Binder #1. On November 20, 1996, the Board of Supervisors voted to not allow the defendants to condemn land needed for the highway within a specially protected Agricultural and Forestal District. The Board sent a list of 92 questions to the defendants, covering a range of cost issues and environmental impact issues. Specific questions were asked about the effect of the use of the land on creeks and water supplies. No mention was made within the an swers submitted by the defendants of the all weather testing equipment or the use of 180,000 gallons of water per hour for testing purposes. On June 16, 1996, the Board of Supervisors reversed their earlier vote, and allowed VDOT to condemn the 140-142 acres necessary for the highway. The Board passed the resolution by one vote. Throughout the project planning, the target date has taken on increasing importance. To be chosen as a Demonstration Project for smart highway technologies, the Smart Highway must be up and operating by the year 2002. Project must be completed by the year 2002 to qualify as a Demonstration Project for additional funding under the Intermodal Surface and Transportation Efficiency Act of 1991. As stated by the Defendants in their Environmental Reevaluation: "The year 2002 is important because one of the short-term goals is to use the Smart Highway as the year 2002 demonstration facility. The Smart Highway is one of the sites in the country that is under consideration." In addition, the Defendants have always contended that the IVHS infrastructure cannot be installed on any other roadway due to the specifications of the smart vehicle testing devices. Many have suggested that the #3A Bypass, now under construction, could serve as a test bed. The Defendant stated in their Answers to the Board of Supervisors that "use of 3A as a substitute for the Smart Road is not feasible." Finally, on April 15, 1997, the Defendants released an Environmental Re-evaluation for the project. **Changes to the Project: a. Revealed the use of 180,000 gallons of water per hour for snowmaking machines that would simulate all-weather conditions; b. Revealed the use of six air compressors; c. Revealed use of 403 acres as opposed to estimated 253 acres of land; d. Revealed non-recyclability of water to be used; e. Revealed TCE problems with water use. f. Revealed the possible presence of a state threatened species along the highway route; g. Revealed that one of the bridges was extended from 300 feet in length to 1086 feet in length. h. Revealed that another bridge would be extended from 1106 feet to 1949 feet in length. And, Following in the wake of the issuance of this document, the first contract for the construction of the 2 mile test bed was awarded at 40% over the original projected cost for that section. Extrapolation to the rest of the highway would result in a $1 43 million cost, rather than the $103 projected by the Defendants. After taking a supposedly "hard look" at the changes announced in the Re-evaluation, the Defendant concluded that the project's impacts "do not create a seriously different picture of the Smart Highway." Environmental Re-evaluation at 48. NOW, the Defendants would have this Court accept the proposition that they were in a position to make a reasoned, objective, unbiased decision concerning these additional impacts resulting from the highway after: AFTER 1. moving the project through the Montgomery County Board of Supervisors by one vote; 2. The planning for Interstate 73 to run over the Smart Highway route; 3. The acceptance and use of 5.9 million in federal monies for the highway; 4. The public support of the Governor for the Smart Highway; 5. The right-of-way planning was completed and condemnation proceedings had been taken on most of the land for the highway; 6. The Commonwealth Transportation Board had approved the route of the highway; 7. The application of the defendants to contend for ISTEA funding for a Demonstration Project; 8. Conceiving from Day one of the project as a testing site for smart highway technologies. Segmentation Clearly, the language used by the Fourth Circuit concerning segmentation applies here. The language used in Maryland Conservation Council finds specific application. The steps taken by the defendants, as briefly outlined above, and the overwhelming urge to secure funding, serve as loaded "gun barrels" pointing at the agency to make what is, in effect, a pre-determined evaluation. The Fourth Circuit has declared that segmentation of projects in this manner is illegal. In that same case, the Court examined the highway agency's construction of two segments of highway, entering and leaving a park. The Court focused on the impact that completion of these segments would have on the impartial preparation of an environmental document. The Court declared that "it is precisely this sort of influence on federal decision-making that NEPA is designed to prevent" and that the effect of prior commitments diminishes the options open to the agency, thus making its decisions "a meaningless formality." Brief at 16. In 1991, the Fourth Circuit had another opportunity to address the segmentation argument in North Carolina v. Virginia Beach in which the City of Virginia Beach began construction of a segment of pipeline prior to the approval of the federal agency for  the segment of pipeline due to cross federal land. The District Court stated that a prime concern was whether "the construction and the concomitant expenditures of funds would create so much pressure that the completed portions of the pipeline would stand like a gun barrel pointed at the FERC." District court: agencies should "not be presented with public and political pressure brought on by partially completed projects in making important environmental decisions." Brief at 17. The 4th Circuit, upon review of the case, upheld the injunction granted by the District Court, and re-stated the standard to be applied in these cases - that if segmentation has occurred that has a "direct and substantial probability" of influencing decis ions to be made by the agency, then it should be enjoined." In addition, the court stated that these segmented projects should be enjoined "even though compliance with NEPA may result in delays and cost increases." The 4th Circuit, in 1995, affirmed this standard in South Carolina v. O'Leary and stated that the principal focus of an inquiry into segmentation is whether the completion of one segment of the project commits the agency to another action. Language from these cases - Maryland Conservation Council - investment in a proposed route diminishes the options of the agency to a point where discussion of impacts becomes a "meaningless formality." Virginia Beach - that the public interest favors avoiding irreversible damage to the environment and that agencies should not be presented with public and political pressure brought on by partially completed projects in making important environmental deci sions. O'Leary - that the initial component has a direct and substantial probability of influencing the agency's decision. All of these cases find direct and focused application to the situation before this court today - namely that the planning, issuance of the environmental documents, and partial construction of the highway have pre-determined that the defendants would find that the IVHS infrastructure would have no significant impact. In addition, in almost all of the segmentation cases examined by Circuit courts, the analysis has centered on the effect of the action's of one entity upon an agency. Here, the analysis is much tighter - this court is examining the influence of the defend ant's actions on the defendant itself. The instant situation thus presents a scenario in which pre-determination of the environmental impacts is a much more serious proposition. NOT only did segmentation of the project place severe pressure on those decisionmakers evaluating the environmental effects of the IVHS infrastructure, it also restricted the consideration of alternatives to the project by other agencies and by the Board of Supervisors. Plaintiffs note in their brief that the Board of Supervisors, before passing the condemnation resolution by one vote, asked several questions about specific impacts of the road on protected Agricultural and Forestal District land. The defendants failed to disclose the water runoff into Wilson Creek, and failed to mention any of the noise or pollution impacts associated with the IVHS equipment. In addition, several agencies also evaluated alternatives during both the scoping and comment periods, but were not given the information necessary to make a reasoned choice about alternatives to the Project. Defendants state on page 38 of their Brief, and I quote "The impacts of the hardware would have been the same no matter where it was located." Using this reasoning, why examine the different impacts that the physical construction of the road would have on each alternative? Under the defendantÕs reasoning, theyÕd all be the same anyway! This is just one example of the attitude that has permeated the highway agency, towards the requirements of NEPA, and shows how they've turned federally mandated procedures into merely a paper tiger. Defendants have also constructed an escape hatch - claiming that from the beginning, they knew that the IVHS infrastructure would only have "speculative and likely insignificant impacts" and thus did not include the information within its planning documen ts. But Defendants can't have it both ways - if the impacts resulting from the installation of the IVHS infrastructure were "speculative", then the defendant agency scoped the project improperly. This supports the Rush for Funding theme - get the environmental documents produced quickly and incompletely, and deal with the ramifications later Most importantly, this argument fails in another, larger respect. The defendant agency has always contended that IVHS technology consists of "rapidly evolving technologies" and therefore, any analysis of impacts could not be carried out until 1997. The fa ilure of this argument is that it is irrelevant. It is not the absence of impacts of the TECHNOLOGY that Plaintiffs are challenging, but rather the impacts of the ALL-WEATHER TESTING EQUIPMENT. This equipment, consisting of air compressors, water use, snowmakers, and the rest, would be used regardless of what TECHNOLOGY is eventually tested on the roadway. Air compressors, snowmakers, and water use impacts are not constantly evolving technology. In fact, to obtain information on snowmakers, the defendant contacted Snow Economics, a company that has been selling snowmakers to ski resorts for over twenty years. See 1040 Ad. Rec. (Binder #2). For information on air compressors, the defendant called Ingersoll-Rand, who state in their promotional brochure at page 1075 of the Admin. Record (Binder #2), that "Oil Free compressors have been a mainstay of our business since 1933." Defendants use Vermont Yankee and D.C. Federation of Civic Associations to support their proposition that speculative, future effects need not be considered within the environmental documents. First, these cases don't apply for the reasons just given - that the all-weather testing components are not rapidly changing technologies. Second, these cases don't apply because they discuss the spectrum of alternatives that the agency must discuss - in Vermont Yankee, it was the energy conservation alternative, and in D.C. Federation of Civic Associations it was the alternative of a commut er rail line. Put simply, the instant case is not a case in which the Plaintiffs contend that the Defendant failed to analyze a proposed alternative - it is a case in which one project was treated as two projects for purposes of NEPA. Therefore, the excuse by the defendant that the impacts were speculative due to rapidly evolving smart highway technologies is simply false - because even though intelligent vehicle systems technology may be rapidly evolving, the all weather testing compo nents are not, and would be used regardless of the technologies chosen. Defendants argue, on the other hand, that impacts from the equipment were insignificant and therefore not included. However, if the impacts from the installation were likely to be insignificant, then the defendant agency violated NEPA by not including a d iscussion of the project within the environmental documents because it became a connected, cumulative, or similar action. The fundamental purpose of NEPA, after all, as the Defendant will remind this court today - is procedural- to disclose relevant information to the public at large. This was circumvented in this case by the Rush for Funding. Finally, as the Plaintiffs have noted in their brief, the IVHS infrastructure also clearly qualifies as a connected, cumulative, or similar action, and thus the scoping process for the project was seriously and prejudicially flawed. Clearly, therefore, the segmentation of the project caused a predetermination of the significant effects that the IVHS infrastructure would have, as well as restricting the range of reasonable alternatives considered, and illegally restricting the comment s given on the project, all in violation of the National Environmental Policy Act (NEPA). II. Res Judicata - Procedural bar attempted by the Defendants The Defendants also attempt to raise a procedural bar to the segmentation claim made by the Plaintiffs. In short, they contend that since this is a challenge to the same environmental document alleging violations of the same environmental statute, that t his is enough to argue that the doctrine of res judicata applies. In the most recent ruling by the Fourth Circuit on the elements of res judicata, Armor v. Michelin Tire Corp., Civ. No. 96-1724 (May 13, 1997) the Court stated that Res judicata only applies to claims and issues actually litigated between the parties and operates to preclude parties from contesting matters that they have had a full and fair opportunity to litigate. Armor, 1997 U.S. App. LEXIS 10755. The crux of the determination here rests on an analysis of whether a segmentation claim existed at the time that the Plaintiffs brought suit in 1995. Therefore, this Court's attention should turn towards the Administrative Record that Plaintiffs had in front of them during the first litigation. That Administrative Record included documents produced by the agency up to January 30, 1996. However, that Administrative Record explicitly excluded information that dealt specifically with the IVHS infrastructure. Plaintiffs ask this Court to note that in the Supplemental Administrative Record filed for this litigation the defendants state that: "The Supplemental Administrative record contains additional documentation, which primarily includes information that addresses the installation of Intelligent Transportation Systems hardware on the project AND/OR post-dates the Addendum prepared on Septem ber 14, 1995." The first binder of the Supplemental Administrative Record contains letters and memorandums that discuss the IVHS infrastructure and are dated September 27, 1994; February 1, 1995, February 8, 1995, March 16, 1995, March 29, 1995, August 15, 1995, and six teen other documents that discuss the ITS testing and the Board of Supervisors decisions. All of these documents were withheld from the earlier Administrative Record. Therefore, in this litigation, the Defendants have continued to treat the entire project as two separate projects for purposes of planning and the Administrative Record, and as one overall project for the purpose of selling the project. The Rush for Fundi ng. Put simply, the Defendants have played games with the IVHS infrastructure discussions, in this case withholding important documents from the Plaintiffs. Then, the defendants turn around and attempt to use a procedural bar to keep the Plaintiffs from raisi ng these issues. Plaintiffs ask this Court to examine the information that the Plaintiffs had available to them in the first litigation. Included in this information were documents that discussed sensor implantation in the roadway and monitoring systems, but contained abs olutely no discussions about the use of 180,000 gallons of water per hour, runoff, air compressors, noise, and additional cost. Nor have the defendants managed to point to any language within the first Administrative Record that remotely supports their objections or shows that enough information was available to the plaintiffs during the first lawsuit. The discussion in the FEIS is representative of the information that Plaintiffs had in front of them when they brought suit in November of 1995. The FEIS reads that: The ITS proposal is "expected to combine the existing Route 460 roadway, Alternative 3A, Interstate 81 and the Blacksburg-Roanoke Connector to provide the full variety of urban and rural new construction settings and in retrofitting an existing urban road way in which to test the developing IVHS technology. The variety of terrain and variably seasonal weather conditions offer an unusual ability to test driver information and response systems as well as various vehicle guidance and control systems under dif ferent environmental settings and in urban, suburban, and rural settings." It continues "The Blacksburg-Roanoke Connector can be designed around technologies identified for operational testing. These may include embedded sensors to monitor traffic, environmental, and pavement conditions, as well as automated Highway/Vehicle Control systems." As this Court can see, no mention was made of simulation of all-weather testing events or the installation of the equipment dealt with by the Environmental Reevaluation. Defendants' argument seems even more far-reaching when one reads their Briefs.If the agency itself steadfastly contends that they did not know of any details of the installation of the IVHS equipment until early in 1997, how could they expect the Plaintif fs not only to know of the plans, but to have enough information to lodge a credible legal claim? III. Preparation of an SEIS Finally, Defendants attempt to argue that even though segmentation of the project occurred, that the impacts contained in the Environmental Reevaluation are insignificant and thus, an SEIS should not be prepared. Ignoring for the moment the influence exerted upon the agency to make a finding of no significant impact, the changes to the project as reported in the Environmental Re-evaluation are facially significant. The use of the immense amounts of water, the runo ff of liquids laced with de-icers and salts into nearby streams, the 60 percent increase in the amount of land to be used - from 253 to 403 acres to be used for the right-of-way, to the snowmakers, the air compressors, and the communications towers. It is plain, even on its face that these changes present a significantly different picture of the project. Defendant also contends that they produced the Environmental Re-evaluation as soon as they knew the extent of the all-weather testing equipment to be installed along the route of the Smart Highway. This is simply untrue. As the Plaintiffs have pointed out in their Reply Brief, as early as August of 1995, the Defendant was discussing problems with "water rights between Montgomery County and the Town of Blacksburg" and expressing concerns "regarding the aesthetics of poles" for the communication towers. Also in August of 1995, and included in the Supplemental Administrative Record only, the defendant knew that, "the Smart Road will provide controllable weather conditions for testing as well. Running water pipes will be provided along the roadside and spe cial machines will be installed for generating fog, snow, rain, etc." Reply Br. at 23, A.R. at 550 III. Conclusion Plaintiffs' believe that this project is a travesty - where a Rush for Funding and a very close partnership with a large University has produced a project that crushes local concerns and opposition and ignores even the very basic federal environmental law s. For these reasons, the Plaintiffs request this Court to order the defendant agency to prepare another Environmental Impact Statement that addresses both the physical construction of the highway as well as the installation of the IVHS infrastructure. In the alternative, the Plaintiffs request this Court to order the defendant agency to prepare a Supplemental EIS for the material included within the Environmental Reevaluation. In the words of Virginia Beach, Plaintiffs ask this Court to find that the public interest in avoiding irreversible damage to the environment demands that this relief be granted. Thank you.