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Conservation Soc'y of S. Vt. v. Secretary of Transp.

Citation: 6 ELR 20207
No. Nos. 73-2629, -2715, 531 F.2d 637/8 ERC 1762/(2d Cir., 02/18/1976) Rev'd

On remand from the Supreme Court, 6 ELR 20068, the Second Circuit Court of Appeals reverses its prior opinion, 5 ELR 20068, which held that preparation of the NEPA impact statement for a federally funded highway project must be done by the responsible federal official and may not be delegated to a state agency. Public Law 94-83, which amended NEPA to allow state agency EIS preparation as long as the responsible federal official participates in such preparation and independently evaluates the statement prior to its approval and adoption, was clearly intended to overturn the court's earlier decision on the delegation issue in this case. The trial court's initial findings show that the new statutory standard was met. In light of the Supreme Court's recent ruling in Aberdeen & Rockfish R.R.. v. SCRAP, __ U.S. __, 5 ELR 20418, the court of appeals also reverses its prior holding that the EIS, which specifically concerns upgrading a 20 mile segment of Route 7 to a superhighway, had to consider the project's effects on the entire 280 mile Route 7 corridor. As there is as yet no federal plan for constructing the superhighway through the entire corridor, under SCRAP defendant has no obligation to prepare a corridor EIS.

A lengthy dissent by Judge Adams, sitting by designation, contends that the language and legislative history of Public Law 94-83 shows that Congress intended the amendment not simply to reverse this court's earlier ruling but instead to modify and clarify the standards governing delegation of EIS preparation. The dissent also disagrees with the majority's conclusion that the new standards were met in this case: federal involvement in the Route 7 EIS was inadequate even under the modified statutory provisions.

Counsel for Plaintiffs-Appellees
Harvey D. Carter, Jr.
Williams, Witten, Carter & Wickes
115 Elm Street
Bennington VT 05201
(802) 442-8111

Counsel for Defendants-Appellants
Edmund B. Clark
Kathryn A. Oberly
Department of Justice
Washington DC 20530
(202) 739-2748, 739-2756

Robert C. Schwartz Asst. Attorney General
State of Vermont
Montpelier BT 05602
(802) 828-3171

Counsel for Amicus Curiae Natural Resources Defense Council
Sarah Chasis
Natural Resources Defense Council, Inc.
15 West 44th St.
New York NY 10036
(212) 869-0150

Counsel for Amicus Curiae Town of Manchester
Arthur J. O'Dea
Whalen & O'Dea
Center Hill Office Bldg.
Manchester VT 05256
(802) 362-2310

Moore & Mulligan, JJ.; Adams,* J. dissents with separate opinion.