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Stop H-3 Ass'n v. Dole

Citation: 19 ELR 20873
No. No. 87-2204, 870 F.2d 1419/29 ERC 1390/(9th Cir., 03/20/1989) Dismissal aff'd

The court holds that a challenge to a federal highway project in Hawaii was properly dismissed for mootness and that Congress did not violate the Spending Clause, the Fifth Amendment, or the doctrine of separation of powers in exempting the H-3 project from the requirements of § 4(f) of the Department of Transportation Act (DOTA) and § 18 of the Federal-Aid Highway Act. The court initially observes that the intent of § 114 of the 1987 Continuing Appropriations Bill was to exempt the H-3 project from DOTA § 4(f) and similar Federal-Aid Highway Act § 18 (collectively known as § 4(f)), which provide for protection of parks and other public lands. Thus, approval of a final environmental impact statement (EIS) was the only impediment to construction of H-3 remaining after enactment of § 114. The court holds that the district court properly dismissed the case and terminated injunctions against further construction of H-3, after finding that a final EIS approved in 1982 was adequate, despite appellees' later decision to prepare a third supplemental EIS. The district court's approval of the 1982 EIS satisfied a 1972 stipulation that enjoined construction of H-3. Additionally, the National Environmental Policy Act allows work on those parts of a project unrelated to a supplemental EIS to go forward when the project is already the subject of an adequate final EIS.

The court next holds that § 114 of the 1987 appropriations bill does not exceed Congress' power under the Spending Clause of the Constitution. Deference must be given to Congress' determination that spending to implement § 114, which was enacted to expedite completion of the interstate highway system, is a matter of national importance that will promote the general welfare. The court also holds that § 114 does not violate appellants' equal protection rights. Even assuming that the enjoyment of a healthful environment is an important right and that legislation that allegedly harms the environment should be subject to heightened scrutiny, § 114 satisfies the requirements for validation of legislation under an intermediate level of scrutiny. Section 114 does not create a legislative distinction between Hawaii and the rest of the states. Section 114 refers to only the H-3 project and not to Hawaiian highway projects in general. Congress may create exemptions from generally applicable statutes in order to authorize state-specific projects. The court holds that § 114 does not invidiously discriminate against appellants on the basis of state citizenship. The court rules that Congress may moot a pending controversy by enacting new legislation that exempts a particular project from the requirements of existing statutes. The court concludes that § 114 is substantially related to the achievement of important governmental purposes. The legislative history of § 114 indicates that Congress wanted to expedite completion of H-3 and eliminate further delays due to litigation. The court then holds that Congress did not violate the separation of powers doctrine in enacting § 114. The court rules that Congress' enactment of legislation exempting a project from statutory requirements does not constitute execution of the law in violation of the doctrine of separation of powers. Section 114 does not interpret § 4(f) but merely exempts the H-3 project from its requirements. The court holds that § 114 does not deprive the Executive Branch of its authority to execute § 4(f). Section 114 merely exempts the H-3 project from § 4(f) and Congress may legislatively alter the reach of the laws it passes. The court finally holds that § 114 does not deprive the courts of any essential attributes of judicial power. The courts retain jurisdiction to review Executive branch compliance with § 4(f) wherever it applies, since Congress exempted only the H-3 project.

[Related cases appear at 2 ELR 20648, 3 ELR 20130, 3 ELR 20689, 6 ELR 20424, and 14 ELR 20777.]

Counsel for Plaintiffs-Appellants
Boyce R. Brown Jr.
222 Merchant St., Honolulu HI 96813
(808) 521-5337

Counsel for Appellee
Kathryn A. Oberly, Special Deputy Attorney General
Myer, Brown & Platt
2000 Pennsylvania Ave. NW, Washington DC 20006
(202) 463-2000

Before Schroeder and Brunetti, JJ.