The Supreme Court's decision earlier this month in Citizens to Preserve Overton Park v. Volpe, __ U.S. __, 1 ELR 20110 (Mar. 2, 1971), is important to the developing field of environmental law on two levels. By its construction of two environmental protection sections of the federal highway statutes,¹ the Court has substantially restricted the availability of parklands and similar "green havens"² as sites for interstate highways. Of equal significance is the Court's clarification of the role of the reviewing court where discretionary administrative action is challenged. This aspect of the opinion is applicable in varying degrees to the whole range of citizens' suits to halt environmentally destructive administrative action.³

The suit was initiated to challenge the validity of the Secretary of Transportation's final decision in November 1969 approving the route and design of that portion of six-lane Interstate 40 to be built through Memphis's 342-acre Overton Park. Petitioners, private citizens, and conservation organizations relied on sections of the Department of Transportation Act⁴ and the Federal Aid Highway Act⁵ that prohibit the use of federal funds to build highways that pass through public parks unless there is "no feasible and prudent alternative" route and, where there is no alternative, require "all possible planning to minimize harm" to parklands. The Secretary must determine that these conditions are satisfied before authorizing the release of federal funds. Petitioners argued that the Secretary never made these determinations. They also contended that the Secretary made no supporting findings of fact, and that this alone rendered his approval invalid, because it foreclosed effective judicial review. Respondents submitted affidavits purporting to deny these allegations and moved for summary judgment. The district court (W.D. Tenn.) agreed with respondents, and its judgment was affirmed by a two-to-one decision in the Sixth Circuit.⁶