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Scherr v. Volpe

Citation: 2 ELR 20453
No. No. 72-1113, 466 F.2d 1027/4 ERC 1435/(7th Cir., 08/04/1972) Aff'd

On appeal from the Western District of Wisconsin, the trial court's grant of a preliminary injunction requiring the preparation of an environmental impact statement is affirmed. Section 102 (2) (C) of NEPA is designed to insure that federal agencies consider the environmental consequences of their actions and balance them against other considerations. It must be complied with notwithstanding administrative difficulty, delay, or economic cost. The court does not decide the extent of agency discretion whether to prepare a statement, since even if such discretion existed it was abused here. The court holds that a 12-mile road upgrading under the Federal-Aid highway program is a "major federal action" under PPM 90-1. The record supports the conclusion of the district court that the work would have a "significant environmental impact." Defendants' argument of "substantial compliance" is rejected, as two reports prepared without consultation or balancing of considerations are not lawful substitutes for a 102 (2) (C) statement. Plaintiffs need not show that the project would cause irreparable harm to the environment, as this would shift the burden of evaluation from the agency to the public. The harm lies in the loss of Section 102's careful and informed decision-making process. Plaintiffs have a right to have the agency consider environmental consequences before proceeding with the work. An ongoing project is subject to the Section 102 procedure unless it has reached that stage of completion where costs of abandonment or alteration clearly exceed the benefits which could flow from compliance. The decision of the district court not to require a security bond is not reversible error.

Counsel for Plaintiffs
Frederick H. Miller
222 S. Henry St.
Madison, Wisconsin 53703

Counsel for Defendants
John O. Olsen
U.S. Attorney
U.S. Courthouse
Madison, Wisconsin 53703

Gordon Young
Richard E. Barrett
114 E. State Capitol
Madison, Wisconsin 53702

Before Mr. Justice CLARK*, SPRECHER, Circuit Judge and CAMPBELL, Senior District Judge.**