Citizens to Preserve Overton Park v. Volpe: Petition for certiorai granted by the Supreme Court

On December 7, the U.S. Supreme Court issued a writ of certiorari to the Sixth Circuit Court of Appeals in Citizens to Preserve Overton Park, Inc. v. Volpe, 1 ELR 20053, 1 ERC 1685, __ F.2d __ (6th Cir. 1970); rehearing denied, October 30, 1970, aff'g. 309 F. Supp. 1189 (W.D. Tenn. 1970; cert. granted 39 U.S.L.W. 3256 (1970). Petitioners are seeking to challenge the manner in which federal officials approved the construction of Interstate Highway 40 through Overton Park, a 342 acre wooded, publicly owned park in downtown Memphis, Tennessee. The Court will review the Sixth Circuit decision of September 29, 1970, which affirmed the district court's dismissal of the complaint on motion for summary judgment.

Coupled with the writ was a grant of petitioners' application for a stay of highway construction. This stay now supplants Justice Stewart's temporary restraining order of November 6th and will remain in effect pending the Court's decision.

The unique circumstances under which the writ was issued, and the potential impact of a Supreme Court decision in a case arising under the environmental protection sections of the federal highway statutes (49 U.S.C. § 1653(F) and 23 U.S.C. § 138, which sections are identical), combine to create one of the most important cases of this term.

This case was originally initiated by conservation groups and concerned individuals in response to the final decision of the Secretary of Transportation in November, 1969 approving the design of the portion of six-lane Interstate 40 which was to be built through Overton Park. Secretary Volpe moved for dismissal and concomitantly obtained a protective order against discovery pending the district court's decision on his motion to dismiss. At the hearing on the plaintiff's request for a preliminary injunction and the defendant's motion to dismiss, the defendants moved for summary judgment. The district court dismissed the complaint on the basis of affidavits submitted by the Department of Transportation and the State of Tennessee. The 6th Circuit Court of Appeals enjoined construction of the highway pending appeal, but eventually affirmed the district court (2-1) (Weick and Perk; Celebreeze in dissent) (See opinion 1 ELR 20053). Moreover, the court later denied appellant's application of a stay pending petition for certiorari to the Supreme Court. Justice Stewart's restraining ordr halted imminent construction until petitioner's application for stay could be argued.

Before the Supreme Court applications for stays are normally considered by a three-Justice panel. The panel must determine the likelihood that four Justices will vote for issuance of the writ of certiorari. They must also assess the immediacy ofthe need for the stay and whether it is equitable to respondents to maintain the status quo until the petition can be considered by the Court. However, on November 20 the Court ordered briefs filed by December 4 and scheduled a hearing en banc for December 7th. The proceeding was unique in that eight members of the Court (Justice Douglas took no part in the consideration or decision of the case) were sitting to decide the likelihood that four of its members would vote for issuance of the writ. However, respondents agreed during oral argument that the briefs on the application for stay could be regarded as the petition for the writ and brief in opposition. Before the close of the day the Court had issued the writ, stayed construction and scheduled argument on the merits for January 11, 1970. (The motions of the Committee of 100 on the Federal City, Inc. and the City of Memphis for leave to fill briefs amicus curiae were granted.)

Although its potential impact is difficult to assess, a Supreme Court decision on the merits in Citizens to Preserve Overton Park would have significant effects on the administrative procedure for approval of interstate highway location and design. Such a decision might also require fuller consultation with citizens groups and a reasoned response to evidence submitted by them in the course of location and design hearings. Failure to do so would be abuse of discretion. The issues before the Court will include, among others: what an administrative record must include so that on review it will support the Secretary of Transportation's decisions on highway location and design; the scope of discovery where the Secretary has made such decisions but has not compiled a record; and the requisite evidentiary showing necessary to support the administrator's decision. (See Judge Celebreeze's dissent, 1 ELR at 20056).

[1 ELR 10002]

Behind these issues, however, and intertwined in their resolution, is the broad public policy embodied in the Highway Act which favors citizen participation in highway location and design decisions. Judge Celebreeze, in his dissenting opinion in the Sixth Circuit, notes that Title 23 of U.S.C. (The Highway Act) implicitly requires, not only that public hearings be held and advice solicited, but also that "[the Secretary] weigh all the evidence carefully and deliberately, and [that] his decision … be reviewed with great scrutiny. It cannot be if it is not accompanied by findings of fact and conclusions." (1 ELR at 20058. Cf. Bucklein v. Volpe, 1 ELR 20043, for a brief discussion of the hearings provisions of a different section of the Act.)

Whether or not the Court accepts Judge Celebreeze's formula of "findings of fact and conclusions" in determining the type of record which must be compiled, it appears likely that the Court, in examining this particular decision-making process, will establish a formula which is more keenly attuned to congressional intent than was the one adopted by the Secretary in this case. Lower federal courts have been engaged in a process of narrowing the range of unfettered administrative discretion in cases of environmental significance for some time. In Citizens to Preserve Overton Park, Inc. v. Volpe the Supreme Court may join in that work.