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Russ v. Texas

Citation: 12 ELR 20259
No. No. 79-1539, 634 F.2d 1352/16 ERC 1822/(5th Cir., 12/19/1980)

The court upholds the district court's conclusion that an environmental impact statement (EIS) prepared for the construction of Interstate Highway 27 in Texas complied with the National Environmental Policy Act (NEPA). First, the court rules that by consolidating the hearing on preliminary injunction with the trial on the merits, the district court did not deprive appellant of a jury trial since neither NEPA nor the Administrative Procedure Act creates a right to a jury trial. Next, the court rules that appellant had the burden of establishing by a preponderance of the evidence that the EIS was inadequate. On appeal, appellant's burden is to convince the court that the decision of the district court was clearly erroneous. The court finds that appellant failed to meet its burden on appeal. The record discloses that the district court had ample support for its findings that the EIS adequately addressed the environmental effects of the project, considered the available alternatives including the no action alternative, and was not improperly segmented. The judgment is therefore affirmed.

Counsel for Appellants
Phillip R. Russ
817 S. Polk St., Amarillo TX 79101
(806) 373-9204

Counsel for Appellees
Stephen Greenberg, David R. Thomas, Ass't Attorneys General
P.O. Box 12548, Capitol Station, Austin TX 78711
(512) 475-2501

Judith A. Shepherd, Ass't U.S. Attorney
309 U.S. Cthse., 200 W. 8th St., Austin TX 77801
(512) 397-5858

Before Clark, Tjoflat, and Garza, JJ.