Rehearing Denied Feb. 22, 1971.
See 401 U.S. 926 .
On petition for a writ of certiorari, before judgment, to the United States Court of Appeals for the Fifth Circuit. The petition for writ of certiorari is denied.
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting. This case disturbs me greatly. On December 7, 1970, this Court stayed the construction of two federally funded highways in order to save two public parks. One park serves the people of Memphis, Tennessee. 1 The park in this case is for the rest and recreation of the the people of San Antonio, Texas. Both cases involve important and timely problems of interpretation of 138 of the Federal Aid Highway Act, passed by Congress to stem the destruction of our Nation's parks by highway builders. These cases give this Court an opportunity to insure that lower courts and certain federal agencies administer this vital environment-saving legislation in the way that Congrees intended. The Tennessee case is still scheduled for oral argument at the earliest possible date-January 11, 1971. Yet, the Court now dissolves the stay previously entered in the San Antonio case, 400 U.S. 961 , and denies certiorari. I respectfully dissent from these orders. The San Antonio park has two golf courses, a zoo, a sunken garden, an open air theater and many acres of open space, covered with trees, flowers, and running brooks. It is a lovely place for people to retreat from the frantic pace of bustling urban life to enjoy the simple pleasures of open space, quiet solitude, and clean air. It is a refuge for young and old alike-the kind of a park where a family man can take his wife and children or lovers can while away a sunny Sunday afternoon to- [400 U.S. 968 , 969] gether. After today's decision, the people of San Antonio and the birds and animals that make their home in the park will share their quiet retreat with an ugly, smelly stream of traffic pouring down a super six- lane 'North Expressway.' Trees, shrubs, and flowers will be mown down. The cars will spew forth air and noise pollution contaminating those acres not buried under concrete. Mothers will grow anxious and desert the park lest their children be crushed beneath the massive wheels of interstate trucks.
The San Antonio Conservation Society and its individual members filed suit to block federal approval and funding of this expressway. The United States District Court held that the Secretary of Transportation and state officials were free to proceed with federal funding and construction of two segments of the road coming into the park from north and south. It retained jurisdiction to review any later decision on the design and routing of the connecting middle section, which had not been formally approved by the Secretary.
In addition to substantial questions under the Federal Aid Highway Act, 23 U.S.C. 138, this case involves the newly enacted National Environmental Policy Act, Pub.L. 91-190, 83 Stat. 852. The latter requires a detailed study of the probable effects before approval of 'major Federal actions significantly affecting the quality of the human environment.' 42 U.S.C. 4332(2)(C). Even the respondent appears to concede that the decision to fund this expressway is a 'major federal action' requiring careful study because he has promised that a study will be made before the middle section is approved. However, the approval of the two end segments took place in August 1970, eight months after the effective date of the Act. It is undisputed that no environmental study has been made with respect to these two segments, [400 U.S. 968 , 970] which themselves desecrate parklands and which make the destruction of further parkland inevitable.
Section 138 of the Federal Aid Highway Act provides:
Even the Secretary admits that he has failed to make formal findings about feasible and prudent alternative routes. Respondents have argued that formal findings are unnecessary. This seems an unlikely reading of the Act because without findings it will be difficult for courts to review the Secretary's determinations, and the intent of Congress to protect parklands is likely to be frustrated. 2 Furthermore, it is simply not realistic to consider the construction of this expressway 'section by section' as the District Court and the Secretary of [400 U.S. 968 , 971] Transportation have done here. Once construction is begun and heavy investment made on the two end segments, the available options for routing the middle segment are severely limited. In the words of the Act alternatives for the middle segment which were 'feasible and prudent' will no longer be 'feasible' once the two end segments are constructed.
In the last several years, Congress has enacted coordinated legislation designed to protect our Nation's environment from destruction by water pollution, air pollution, and noise pollution. This legislation has come about in response to aroused citizens who have awakened to the importance of a decent environment for our Nation's well-being and our very survival. Section 138 of the Federal Aid Highway Act and the National Environmental Policy Act are two major parts of this broad plan. The former was designed to prevent the systematic and thoughtless burial of public parks under the concrete of federally funded highways. The implementation of this legislation by the Department of Transportation is disheartening. The Act prohibits the Secretary from approving highway construction through parklands unless there is no 'feasible and prudent' alternative. Congress has assigned a high value to parks, trees, and clean air. Parks are not to be condemned and taken in order to try to save a few dollars on a multi-million dollar highway project. Congress was willing to sacrifice parks only when there is 'no feasible alternative.' Yet the Secretary has proceeded without formal findings to approve two segments of a highway which devour parkland. And the two segments now approved stand like gun barrels pointing into the heartland of the park. The Secretary and his staff are not wholly inexperienced in highway construction. They know full well the difficulty of preserving the park's heartland once the barrels have been loaded and the guns cocked. The efforts of our citizens and the [400 U.S. 968 , 972] Congress to save our parklands and to preserve our environment deserve a more hospitable reception and more faithful observance than they have apparently found either in the Executive Branch, or thus far, in the courts.
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.
This case is here on a stay presented to Mr. Justice BLACK and by him referred to the Court. We granted a stay pending consideration of a petition for certiorari before judgment of the Circuit Court of Appeals, which has now been filed. The Court dissolves the stay and denies certiorari, all without any opinion. I dissent. This is an important case that involves the construction of 9.6 miles of an expressway through 250 acres of the Brackenridge Basin-Olmos Basin parklands situated at the headwaters of the San Antonio River within the city of San Antonio. It involves the application of a new law-the National Environmental Policy Act (42 U.S.C. 4331), which was signed by the President on January 1, 1970. The new Act applies by 102(2) to 'all agencies of the federal government' and provides that such agencies shall include in every recommendation for
Many including Senator Metcalf of Montana had sounded the alarm over the devastation caused by federal highways:1
Parks-the breathing space of urban centers-were part of the concern of Congress, not only wilderness areas, rivers, lakes, and other aspects of the biosphere. 2 The Senate Committee stated in its report:
The report noted that environmental programs were administered by 63 federal agencies located within 10 of the 13 departments, as well as in 16 independent agencies. Id., at 6.
And so the Act was drafted 'to assure that all Federal agencies plan and work toward meeting the challenge of a better environment.' Id., at 9.
Yet in spite of this mandate embodied in 102(2)(C) the Department of Transportation has made no findings on the impact of this massive elevated freeway on the environment of San Antonio. The Court does not tell us why none need be made.
On August 4, 1970, the State, after revising its plans, agreed to the federal plan for the end segments of the projects. But we are advised that it was not until August 13, 1970, that the Secretary of Transportation approved the construction by Texas of the two end seg- [400 U.S. 968 , 976] ments; and he has not yet approved the middle section. It is said:
We were told on November 16, 1970 that there are 'at least four (4) possible alternative routes on which the middle section could be constructed to connect the two ends which the District Court has approved.'
That is to say, 11 months after the Environmental Policy Act became effective, the gist of the location problem so far as the park is concerned had not been resolved.
The Solicitor General contends that the two end segments were approved in 1969. But the facts are that while Secretary Volpe gave preliminary approval of these segments on December 23, 1969, he withheld authorization of federal funds pending an agreement by the State to study further the middle segment. As already stated, Texas agreed to the end segments on August 4, 1970, and the Secretary gave his 'unqualified approval' and authorization of them on August 13, 1970, long after the new Act became effective. Yet no findings under the 1970 Act were made.
It seems obvious, moreover, that approval of the two end segments has some effect on the alternatives for the middle section. For once the expressway is split into segments and each segment considered separately, the environmental impact of the entire project will turn at least in part on the fact that the two ends are already built. [400 U.S. 968 , 977] The Solicitor General states: 'The Secretary could well approve a route in the middle segment that would involve little or no use of parklands, or substantially less than the proposed route location now contemplates.'
Thus we have a fair indication that some of the park is going to be a freeway regardless. Yet as I read the Act a federal highway project 'significantly affecting' even an acre of park land cannot be launched without a finding on the environmental consequences.
The legal questions posed by 102(2)(C) include at least the following:
Should any piece of the park be destroyed to accommodate the freeway?
How can end segments of a highway aimed at the heart of a park be approved without appraising the dangers of drawing a dotted line between the two segments?
How important is the park to the people of San Antonio? How many use it? For what purposes? What wildlife does it embrace? To what extent will a massive eight and six-lane highway decrease the value of the park as a place of solitude or recreation?
What are the alternatives that would save the park completely? Could a passage by way of tunnels be devised? Could the freeway be rerouted so as to avoid the parklands completely and leave it as a sanctuary?
Is not the ruination of a sanctuary created for urban people an 'irreversible and irretrievable' loss within the meaning of 102(2)(C)?
I do not think we will have a more important case this Term. Congress has been moving with alarm against the perils of the environment. One need not be an expert to realize how awful the consequences are when urban sanctuaries are filled with structures, paved with concrete or asphalt, and converted into thoroughfares of high speed modern traffic. [400 U.S. 968 , 978] Those are some of the things with which Congress was concerned in the 1970 Act.
No federal question would, of course, be presented if Texas or San Antonio decided to turn these parklands into a biological desert. But when Congress helps finance a project like this freeway,3 it becomes a federal project. See Wickard v. Filburn, 317 U.S. 111, 131 ; Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 295 ; Simkins v. Moses H. Cone Memorial Hosp., 4 Cir., 323 F.2d 959. And if one thing is clear from the legislative history of this 1970 Act, it is that Congress has resolved that it will not allow federal agencies nor federal funds to be used in a predatory manner so far as the environment is concerned. Congress has, indeed, gone further and said that the Department of Transportation, like other federal agencies, may no longer act as engineers alone and design and construct freeways solely by engineering standards. Congress has said that ecology has become paramount and that nothing must be done by federal agencies which does ecological harm when there are alternative albeit more expensive, ways of achieving the result.
I would continue the stay, grant the petition for certiorari, 28 U.S. C. 1254(1), and let the bureaucracy know that 102(2)(C) is the law of the land to be observed meticulously.
Much of the legislative history of the Act is a discussion of air pollution, water pollution, and solid waste disposal. But when specifics are mentioned highway problems are present. And the mention of highway problems at every stage in the legislative history leaves [400 U.S. 968 , 979] no doubt that the Department of Transportation's highway programs are subject to the Act.
At the Senate Hearings on the Act, the Department was represented by the Assistant Secretary for Urban Systems and Environment. He immediately recognized the reason he was present.
He talked about the views of those people who live in metropolitan areas of the country. They have, he stated:
Included in the House Hearings is a letter from the Chairman of the House Subcommittee considering the 1970 Act to the Chairman of the President's Council on Environmental Quality which notes that neither the De- [400 U.S. 968 , 980] partment of Transportation nor the Department of Interior have promulgated the procedures they will use under the Act. 'The fact there has not been full compliance by these Departments disturbs me greatly.' House Hearings, No. 91-32, p. 67 (1969). And before the House Hearings were printed the Department of Transportation had complied with the request and the Department's procedures under the Act were printed with the House Hearings. Id., at 153-159.
The debates on the Act on the floors of both Houses were relatively short, attesting in some measure to the popularity of enacting an extensive environmental bill. Yet just as the Senate and House Hearings had demonstrated that the Department of Transportation was an integral part of the Federal Government's creation of environmental problems, so, too, did the debates alert one to the fact that highways caused environmental problems when not approached from an ecological perspective. In the House only a handful of speakers addressed the bill for any length of time and all spoke in broad generalities. Rep. Pelly, a member of the subcommittee which considered the Act, provided the focus on the problems of highways.
The Senate debates were also brief and again often dealt largely with the generalities of air and water pollution. Senator Allott, a member of the committee which considered the Act, recognized this and reminded his colleagues that more was involved.
Senator Jackson, chairman of the committee which considered the Act, reviewed the legislative history of the Act for the benefit of the other Senators. He stated that concepts and ideas were drawn from the many other bills before Congress when the Senate Committee considered the Act. These bills
Thus there can be no doubt but that Congress intended the Act to apply to federally funded highways and the Department of Transportation.
[ Footnote 2 ] Ironically, the Secretary of Transportation now appears to recognize that written findings should be made for highway grant-in-aid approvals and such findings are now provided for by his own regulation, Dept. Transportation Order 5610.1, issued October 7, 1970. But the Secretary has not been willing to apply his regulation to this case. In my view the regulation alone is sufficient reason to reverse and remand for findings of fact. Cf. Thorpe v. Housing Authority of City of Durham, 393 U.S. 268 (1969).
[ Footnote 1 ] Speech, Stanford University, April 9, 1969.
Senator Metcalf on January 24, 1963, spoke of the great need for consideration of ecological factors before highway construction was launched:
[ Footnote 2 ] For the legislative history see the Appendix to this opinion.
[ Footnote 3 ] The Federal Government is providing the funds for 50% of the cost of this expressway.