Litigation over the proposed construction of Interstate 40 through Overton Park in Memphis continues to make new law concerning judicial review of informal administrative action that affects the environment.¹ Attorneys will recall that on February 26, 1970, the federal district court for the Western District of Tennessee granted summary judgment for defendants, finding that Secretary Volpe had adequately considered alternatives to the use of parkland for the highway. The Sixth Circuit affirmed. 1 ELR 20053. The Supreme Court reversed and remanded to the district court, holding that the district court had erred in its reliance upon mere litigation affidavits as the record for review. 1 ELR 20110. In its opinion, the Court discussed the applicable standard of review and provided a step-by-step description of the manner in which judicial review of informal administrative actions should be conducted. Now, on remand, the district court had found that Secretary Volpe, contrary to his testimony, did not consider alternative routes prior to his approval of the use of parkland for the highway. His decision to approve was therefore invalid because he had not considered all factors relevant to that decision. Further, the district court held that even if the Secretary had studied alternatives and had determined that no feasible and prudent alternative to parkland existed, his decision was still invalid because his interpretation of the statute was incorrect. This Comment explores the ramifications of the district court's opinion on remand.

In Overton Park the Supreme Court explored for the first time the role of reviewing courts when informal discretionary administrative action is brought before them. This watershed opinion already has evoked two ELR comments. The first, at 1 ELR 10035, discussed the case generally and focused broadly on the meaning of the opinion and its possible ramifications. A second comment, at 1 ELR 10062, focused narrowly on the standard of review that the Court found applicable to informal administrative action. This second comment was prompted by the decision in Sierra Club v. Hardin, 1 ELR 20161 (D. Alaska March 25, 1971), where Overton Park was applied to an administrative decision to sell timber in the Tongass National Forest. The comment suggested that the Supreme Court had broadened the duty of courts reviewing informal administrative action, but that the scope of this broadened duty was uncertain, because the Court's explanation of the meaning of "clear error of judgment" was unclear. Such definitional uncertainty, the comment concluded, could infect all judicial review of informal administrative action.