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Concerned Citizens of Marlboro v. Volpe

Citation: 2 ELR 20207
No. No. 72-1012, 459 F.2d 332/4 ERC 1042/(3d Cir., 04/28/1972)

The provision of federal highway law which authorizes the Secretary of Transportation to approve only those highway projects which are consistent with the safety of the public, 23 U.S.C. § 109(a), does not require the Secretary to consider the noise- and air-pollution impact of the proposed highway. The public hearing requirements of federal highway law, which are set forth in 23 U.S.C. § 128 and the Federal Highway Administration's (FHWA) Policy and Procedure Memorandum 20-8, are not applicable to federal highway projects which received design approval prior to the effective dates of these requirements. These requirements are not applicable to this highway as a project which was ongoing when they took effect, because federal participation ended in 1967 with FHWA final approval of right-of-way acquisition. Likewise the requirements of the National Environmental Policy Act of 1969 are not applicable to this highway, because it was finally approved prior to the effective date of the act.

Counsel for Plaintiffs
Paula Roberts
108 Washington Street
Newark, New Jersey 07102

Counsel for Federal Defendants
Richard W. Hill Asst. U.S. Attorney
Federal Square
Newark, New Jersey 07101

Counsel for State Defendants
Alfred Nardelli Deputy Attorney General
Statehouse Annex
Trenton, New Jersey 08625

Counsel for Corporate Defendants
Theodore W. Geiser
Gateway 1
Newark, New Jersey 07102

Before SEITZ, Chief Judge, ADAMS and HUNTER, Circuit Judges