The July 1971 issue of ELR included an extensive comment on the highway design public hearing requirments of federal highway law including an analysis of several judicial decisions interpreting those requirements. See 1 ELR 10103. Recent Judicial and administrative activity has affected the law discussed in that comment and perhaps affected the continuing viability of some of that comment's conclusions. The judicial activity is the most recent decision of the D.C. Circuit in D.C. Federation of Civic Associations v. Volpe, No. 24,838 (D.C. Cir. Oct. 12, 1971). * The administrative activity involved is the promulgation by the Federal Highway Administration (FHwA) on August 24, 1971, of Policy and Procedure Memorandum (PPM) 90-1, "Guidelines for Implementing Section 1653(f) of 49 U.S.C., Section 309 of the Clean Air Act of 1970," __ ELR __.

The previous discussion of the design hearing requirements of federal highway law, particularly 23 U.S.C. §128 and PPM 20-8, 23 C.F.R. Ch I, pt. 1, app. A (1970) focused on the applicability of those requirements to highway projects that had been initiated prior to the promulgation of PPM 20-8 on January 14, 1969. The issue was which of these ongoing projects did the drafters of PPM 20-8 intend to exclude from the newly promulgated design public hearing requirements. The law on this point was not certain because of two conflicting district court opinions and uncertainty at the appellate level. However, the better reasoned view apparently was that of the district court in D.C. Federation of Civic Associations v. Volpe, 316 F. Supp. 754 (D.D.C. 1970). That court held that PPM 20-8 excuses from public design hearing requirements only those projects that had received final design approval before PPM 20-8 was promulgated, and that existing law defined final design approval as approval of plans, specifications, and estimates under 23 U.S.C. §106. See discussion at 1 ELR 10106. Since the court found that such approval of the design of the Three Sisters Bridge project had not occurred, it remanded the case to the Secretary of Transportation for full compliance with the design hearing requirements of PPM 20-8. The government never admitted error on this point, but did hold design hearings. Therefore, the issue had been mooted by the time the Court of Appeals was presented with the case on appeal. The court of appeals expressed no opinion on the district court's conclusion. Slip Op. at p. 19, 1 ELR __.