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.

A recent Interior Department Board of Lands Appeals holding stands outside the current trend of federal agencies to provide wider protection for the public lands against private commercial uses. In In Re Alfred E. Koenig, 2 ELR 30002 (October 26, 1971), the Interior Board of Land Appeals held that the mining laws of the United States give the owner of a mining claim a nonexclusive right of access to the claim across public lands. Consequently, the claim owner does not have to obtain a special use permit before constructing an access road.

This month, ELR publishes the procedural compliance guidelines prepared by federal agencies to guide their implementation of the National Environmental Policy Act of 1969 (NEPA). See Statutory and Administrative Materials, Table of Contents, at ELR 40000. These guidelines were prepared pursuant to Executive Order No. 11514, ELR 45003, and Guidelines issued by the Council on Environmental Quality on April 23, 1971, ELR 46049.

One of the earliest victories for environmentalists was achieved in Citizens Committee for the Hudson Valley v. Volpe, 302 F. Supp. 283, 1 ELR 20001 (S.D.N.Y. 1969). In that case, New York State was barred from constructing a highway along the Hudson River because necessary authorization, including the consent of Congress, had not been obtained for two structures that were to support part of the road bed—a dike along the river and a causeway linking the dike to an existing bridge across the river.

In Kalur v. Resor, 1 ELR 20637 (D.D.C. Dec. 21, 1971), the district court held that the Refuse Act Permit Program (RAPP), as implemented in regulations promulgated by the Army Corps of Engineers, conflicted with the 1899 Refuse Act and with the National Environmental Policy Act of 1969.

At long last, the Supreme Court has decided Sierra Club v. Morton, 2 ELR 20192 (Apr. 19, 1972). Heralded as the decision that would adopt, clarify, and perhaps expand the liberal view of the Second Circuit on the standing of environmental groups to bring public interest lawsuits, Sierra Club v. Morton instead rejects the Second Circuit view in an opinion that avoids major constitutional issued and requires, somewhat imprecisely, that environmental groups allege individualized harm to themselves or their members in order to maintain actions.

Congress intended for the National Environmental Policy Act to have a major impact on the manner in which the federal government formulates national policy affecting the environment. To achieve this result, NEPA declares a separate national environmental policy and sets out the obligations of federal agencies toward full implementation of that policy. No part of the NEPA process is more important to sound federal policymaking than the requirement of §102(2)(C)(iii) and §102(2)(D) that agencies fully consider alternative courses of action before setting federal policy. NRDC v.

This month, ELR is publishing three sets of materials of interest to ELR users concerned with federal transportation programs.

Sections of the Federal Power Commission's procedural compliance guidelines for the implementation of the National Environmental Policy Act have recently been struck down by the Court of Appeals for the Second Circuit in Greene County Planning Board v. Federal Power Commission, 2 ELR 20017 (2d Cir. Jan. 17, 1972).

The recent case of Illinois v. Milwaukee, 2 ELR 20201 (U.S. 1972), clears the way for the federal district courts to apply federal common-law principles in the resolution of interstate environmental controversies. This new development, which was first discussed in ELR comments on Texas v. Pankey, 1 ELR 20089 (10th Cir. 1971), and Ohio v. Wyandotte, 1 ELR 20124 (U.S. 1971), carves out an important exception to the Erie doctrine and definitely enlarges the role the federal courts can play in environmental protection.