City of South Pasadena v. Goldschmidt

Nos. 79-3189; -3201; -3213 (9th Cir. January 23, 1981)

The court rules that the California Department of Transportation (Caltrans) acted within the scope of its authority under the California Environmental Quality Act (CEQA) in selecting an alternative to a highway segment in the final environmental impact statement (EIS). Pursuant to a district court order Caltrans had prepared a draft EIS and a final EIS.The final EIA differed from the draft EIS in that it favored the adoption of a 1.6-mile alternate proposal to the six-mile project addressed in the draft EIS. When the Federal Highway Administration (FWHA) would not approve the alternative, intervenors sought to modify the order to require its approval by FHWA and state agencies before construction. The court rules that neither the National Environmental Policy Act nor the Federal-Aid Highway Act require FHWA to approve a final EIS prior to approving a project. In addition, the Highway Act does not preclude a state from altering a project in response to environmental impacts. The court also rules that under state law, although the California TransportationCommission has authority to locate state highways, Caltrans is responsible for selection and planning of specific projects. As the "lead agency," Caltrans is required under CEQA to consider alternatives and mitigate adverse impacts, which necessarily includes the power to select an alternate project.

Counsel for Appellants
Alletta d'A. Belin
Center for Law in the Public Interest
10203 Santa Monica Blvd., Los Angeles CA 90067
(213) 879-5588

Counsel for Defendants
Dzintra I. Javans, Ass't U.S. Attorney
312 N. Spring St., Los Angeles CA 90012
(213) 688-2400

Counsel for Intervenor City of Pasadena
Evelyn M. Finn, City Attorney
202 City Hall, Pasadena CA 91109
(213) 577-4141

Counsel for Intervenor City of Los Angeles
Norman L. Roberts, Myrtle Dankers, City Attorneys
1700 City Hall E., 18th Floor, Los Angeles CA 90012
(213) 485-6370

Before WRIGHT and NELSON, Circuit Judges, and SPEARS, Senior District Judge.^*

[11 ELR 20102]

EUGENE A. WRIGHT, Circuit Judge:

This case involves actions taken by a California highway agency. We affirm the district court's holding that the agency acted within the scope of its authority.

The City of South Pasadena, along with several individual and environmental groups, initiated this litigation in 1973. They sought an order requiring compliance with state and federal environmental laws prior to construction of a six-mile segment of the Long Beach Freeway (state Route 7).

Among the defendants were the California Transportation Commission (CTC) and the California Department of Transportation (Caltrans). These agencies (the state defendants) have primary responsibility for constructing state highways in California. The location for Route 7 was established by CTC in 1964.

In 1973 the district court entered an order based on a stipulation between the plaintiffs and state defendants, which provided:

State Defendants shall prepare an Environmental Impact Report complying with the provisions of Section 102(2)(c) of the National Environmental Policy Act . . . and Section 21100 of the California Environmental Quality Act . . . in connection with that portion of the proposed Long Beach Freeway Project, State Highway Route 7 between the San Bernardino Freeway and the Interchange of Route 134, Route 210 and Route 7 in the City of Pasadena.

The EIS was prepared by Caltrans. After circulating a draft EIS and holding public hearings on the project, it prepared a Final EIS for a 1.6-mile alternate project.

The major reason for altering the original six-mile project was the displacement of population and business (with a resulting reduction in the property tax base) it would have caused. Most of the displacement would have occurred in South Pasadena.

Several federal officials, including the Administrator of the Federal Highway Administration (FHWA), were also defendants in the suit filed by South Pasadena. FHWA administers the Federal-Aid Urban Highway program. California has sought federal funds through this program for Route 7 construction.

Upon receipt of the Final EIS from Caltrans, FHWA indicated it would not recommend approval of the alternate project. It found the EIS to be inadequate and the project to lack support of local officials.

Meanwhile, the cities of Los Angeles, Pasadena, and Alhambra had intervened in the lawsuit. Unlike South Pasadena, the intervenors are in favor of the six-mile project. They seek to modify the district court's order by adding the following:

18. The State Defendants are ordered to prepare and submit to the Federal Defendants a Final Environmental Impact Statement (FEIS) that will meet the requirements of the applicable Federal laws, rules and regulations so that the same will be approved by the Federal Defendants.

19. . . .

20. Prior to submission of the FEIS to the Federal Defendants the FEIS shall be submitted to and approved by the California County Transportation Commission.

21. Prior to submission of the FEIS to the Federal Defendants the FEIS shall be submitted to and approved by the Los Angeles County Transportation Commission.

22. The 'proposed action' in the FEIS shall be for the approved designated freeway route and location between the San Bernardino Freeway in the south and the interchange of Routes 134, 210 and 7 in the City of Pasadena in the north.

In addition, intervenors seek to impose time limits in which the enumerated actions are to take place.

The district court denied intervenors' motion to modify the order, on the grounds that Caltrans had not exceeded its authority in preparing the Final EIS on the alternate project.

II.

The grant or denial of an injunction is normally within the discretion of the district court. This court may freely overturn the decision, however, if it was based on an erroneous conclusion [[11 ELR 20103] $=P9991*20104 PAGES MISSING FROM ORIGINAL SOURCE]

[11 ELR 20105]

EPA's response to the District Court action was a Motion to Dismiss. That motion being denied, EPA sought, and was granted, an Order certifying the District Court's decision for an interlocutory appeal.

Theafter, both matters were ordered consolidated for a joint hearing in these proceedings.⁶

We only decide the appeal from the District Court order denying EPA's motion to dismiss. For the reasons stated below, we determine that the agency action suspending the registration of the use of DBCP is not yet ripe for review.

7 U.S.C. § 136n(a) and (b), provide, in pertinent part, as follows:

"(a) District court review. Except as otherwise provided in this act [7 U.S.C. §§ 136, et seq.], Agency refusals to cancel or suspend registrations or change classifications not following a hearing and other final Agency actions not committed to Agency discretion by law are judicially reviewable in the district courts.

"(b) Review by court of appeals. In the case of actual controversy as to the validity of any order issued by the Administrator following a public hearing, any person who will be adversely affected by such order and who had been a party to the proceedings may obtain judicial review by filing in United States court of appeals for the circuit wherein such person resides or has a place of business within 60 days after the entry of such order, a petition praying that the order be set aside in whole or in part. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Administrator or any officer designated by him for that purpose, and thereupon the Administrator shall file in the court the record of the proceedings on which he based his order, as provided in section 2112 of title 28, United States Code [28 U.S.C. § 2112]. Upon the filing of such petition the court shall have exclusive jurisdiction to affirm or set aside the order complained of in whole or in part. The court shall consider all evidence of record. The order of the Administrator shall be sustained if it is supported by substantial evidence when considered on the record as a whole. The judgment of the court affirming or setting aside, in whole or in part, any order under this section shall be final, subject to review by the Supreme Court of the United States upon certiorari or certification as provided in section 1254 of title 28 of the United States Code [28 U.S.C. § 1254]. The commencement of proceedings under this section shall not, unless specifically ordered by the court to the contrary, operate as a stay of an order. The court shall advance the docket and expedite the disposition of all cases filed therein pursuant to this section."

As indicated above, AMVAC itself was uncertain as to whether primary jurisdiction lay with the District Court or in the Circuit Court to review the agency action at this stage. The agency and the Administrator, on the other hand, contend the issue is clear; that Congress clearly intended that all agency decisions that impinge upon the registration and use of insecticides are to be reviewed in the first instance by the Circuit Courts, save and except agency refusals to cancel or suspend registrations or to change classifications not following a hearing. We find it unnecessary to decide that issue; rather, we determine that the agency action in this matter was procedural in nature-more in the form of a preliminary step to determine the scope of the requested agency hearing.

It is true, as contended by the agency and the Administrator, that Congress did intend to limit review of the agency's administrative decisions issued after hearing to the Circuit Courts. Congress' purposes in adopting this technique can be enumerated as follows: (1) A desire to limit the number of conflicting decisions to the smallest possible number; (2) To obtain finality of decision as rapidly as possible.

Nowhere in the Congressional history does Congress evidence any intent to place the review of procedural disputes in the Circuit Courts, and indeed, specifically provides for review by the District Court of "other final agency actions not committed to agency discretion by law."⁷

Illustrative of the distinction we make is State of Louisiana v. Train, 392 F. Supp. 564 (W.D.La.1975). The State of Louisiana sought an emergency exemption from the EPA which would allow cotton farmers in Louisiana to use DDT to control a feared catastrophic outbreak of tobacco budworm which threatened the 1975 cotton crop in that state. Pursuant to Louisiana's application, the EPA published notice of the application for exemption and set the matter down for hearing. After an extensive hearing which produced over 1080 pages of exhibits, the Administrator reaffirmed his prior order banning DDT. The District Court concluded that the hearing in that case constituted a public hearing and therefore, 7 U.S.C. § 136n(b) was controlling, vesting exclusive jurisdiction of review of the matter in the Court of Appeals. Accordingly, the District Court granted the agency's motion to dismiss, which decision was affirmed without published opinion in 514 F.2d 1070 (5 Cir.). It should be noted that the action of the Administrator in this case was an order about which there was actual controversy as to its validity.

Further illustrative of the distinction we make here are two cases decided respectively in the United States Circuit Court for the District of Columbia, Environmental Def. F., Inc. v. Environmental Pro. Agcy., 485 F.2d 780 (D.C.1973), and Environmental Def. F., Inc. v. Blum, 458 F. Supp. 650 (D.C.1978).

In Environmental Def. F., Inc. v. Environmental Pro. Agcy., supra, the order of the administrator banning the use of the pesticide DDT caused a rash of litigation to break out all over the United States. To effectuate the purposes and intent of Congress the Circuit Court immediately took charge of all of the pending cases, and prohibited further proceedings in the District Courts. On the other hand, in Environmental Def. F., Inc. v. Blum, supra, the sole question was adherence by the agency to the statutory rules of administrative procedure, and hence, the District Court accepted jurisdiction and issued appropriate orders for the agency to proceed pursuant to the appropriate sections of the Administrative Practice Act.

Finally, Harrison v. PPG Industries, __ U.S. __, 100 S. Ct. 1889, 64 L. Ed. 2d 525 (1980), provides an illustrative parallel situation in another part of EPA's administrative domain.

There, the Supreme Court had under consideration a final order of the Administrator pertaining to performance standards of stationary apparatus affecting air pollution. Both sides conceded that the action of the Administrator was "final".The statutory scheme providing for judicial review of administrative action is found in 42 U.S.C. § 7607(b)(1).⁸

[11 ELR 20106]

There, as here, the affected party, PPG Industries, was uncertain as to the intent of Congress and concurrently filed petitions for review in the Fifth Circuit Court of Appeals as well as a complaint for injunctive relief against the Administrator in the United States District Court for the Western District of Louisiana. Proceedings in the District Court case were stayed pending resolution of the Circuit Court case.

The Fifth Circuit dismissed petitioners petition on the grounds that it had no jurisdiction. (See PPG Industries v. Harrison, 587 F.2d 237.)

Prior to the Clean Air Act amendments of 1977, it was uniformly understood that 28 U.S.C. § 1331(a) conferred jurisdiction on the Federal District Courts to review agency action, and that section conferred jurisdiction on District Courts to review EPA action undertaken pursuant to the Clean Air Act amendments of 1970. However, in 1977, the Congress added the language contained in § 7607(b)(1), supra. The Circuit Court construed this language in a most restrictive way and indicated that the phrase "any other final action of the Administrator" referred only to those orders enumerated in the body of the section itself.

The Supreme Court granted certiorari and reversed stating that the dominant intent of Congress as determined both from the legislative history and the plain meaning of the phrase "any other final action of the Administrator" meant that jurisdiction was vested solely in the Circuit Courts by Congress.

In PPG Industries, supra, unlike the instant case, the administrative action was final; no further hearings or determinations were pending. Although the majority opinion addresses the problem of inadequate administrative records to enable the Circuit Courts to properly perform their function and the remedy available to the Circuit Courts, it should be noted there is no record before this Court, developed by agency hearings on any one of the registered uses of DBCP. That record will not be developed until the scope of the hearing is determined by the final decision on AMVAC's motion to amend.

Subsequent to oral argument in this appeal, the Court of Appeals for the District of Columbia decided Environmental Def. F., Inc. v. Costle, __ F.2d __. We have considered it and believe it not to be applicable to the case before us.

First, despite Judge Wilkey's statement to the contrary in Environmental Def. F., Inc. v. Costle, supra, a "hearing" did take place prior to the agency action.⁹ Second, the issues presented in Environmental Def. F., Inc. v. Costle, supra, turned ultimately on statutory interpretation.

In reading the extensive materials pertaining to the legislative history of this Act, the main thrust of Congress wasto have final decisions of the Administrator passed on to the Court of Appeals where there was an adequate administrative record for the Court of Appeals to review the propriety of the action. Such a record, of course, is developed by a "hearing". This is the rationale of the bifurcated judicial review provision enacted by Congress.¹⁰

In this case, the agency action objected to was not to hold a public hearing on any crop except tomatoes. We hold that a decision not to hold a public hearing is not an order issued following a public hearing. For review, that decision must be presented first to a district court and not originally to a circuit court.

For the foregoing reasons, we affirm the decision of the District Court for the Central District of California, and dismiss the original petition filed in this Court.

* Of the Western District of Texas.

6. The consolidated appeals proceeded under No. 80-5102.

7. The legislative history, specifically the report of the Senate committee of Agriculture and Forestry, reveals that the division of judicial review jurisdiction was dependent upon the committee's view that after a full hearing, a sufficient record would have been developed to enable the Circuit Court to adequately assess the legal propriety of agency action; whereas, if the agency acts without a hearing, the judicial review should be to the District Court "since there is no record for the Court of Appeals". ([1972] 3 U.S.Code Cong. & Admin. News, pp. 3993, 4066, et seq. [4070]).

Here there is no record of the agency action on the merits' the record before this court deals only with the procedural skirmishing aimed at determining the scope of the hearing, a procedure which the DistrictCourt is admirably equipped to handle.

8. The Harrison case arose under the Clean Air Act (42 U.S.C. § 7401, et seq.). That act, and the amendments thereto, mandate administrative action by the EPA Administrator in a variety of areas impinging upon air quality control. Section 7607(b)(1) of Title 42, after enumerating a series of sections which might spawn administrative action, continues: "or any other final action of the Administrator under this act (including any denial or disapproval of the Administrator under subchapter 1 of this chapter) which is locally or regionally applicable may be filed only in the United States Circuit Court of Appeals for the appropriate circuit." (emphasis added)

9. In the portion of the case captioned "Background" the following appears:

"An opportunity to the interested public was extended for comment on the Administrator's preliminary determinations. Both EDF and Florida Citrus, among others, submitted written comments, and attended a public meeting held by the advisory panel." The court later held that while Louisiana v. Train, supra, was distinguishable, the reasoning therein was, at the very least, persuasive.

10. In reviewing the transcript on appeal, we find no record developed by the agency after a "hearing" public or otherwise on the merits of the agency action of October 27, 1978. The records which the reviewing court will have to deal with concern the procedural aspects of AMVAC's attempt to get the hearing to which they contend they are entitled.

[11 ELR 20106]

GOODWIN, Circuit Judge, dissenting:

I respectfully dissent. The issue presented to us is whether this court or the district court has jurisdiction to hear an appeal from the denial of a request for a 6(d)¹ hearing regarding 22 crops before cancellation of registration of the pesticide. Section 16(b),² the jurisdictional statute in question, permits appellate review of "orders issued . . . following a public hearing."

I believe the denial of a 6(d) hearing for the 22 crops was an order issued following a public hearing. The District of Columbia Circuit discussed at length the meaning of "public hearing" in § 16(b) in Environmental Defense Fund, Inc. v. Costle, __ F.2d __ (D.C.Cir.1980). It concluded that a public hearing has occurred if there was an administrative decision with an adequate record for appellate review. I wholeheartedly agree. The majority holding that the denial of a request for a 6(d) hearing is procedural and hence not reviewable, rather than "substantive" and reviewable finds no support in either statute or precedent. See Environmental Defense Fund at __.

In this case, there was an administrative decision with an adequate record for appellate review. Both parties submitted briefs to the Administrative Law Judge ["ALJ"] and some oral argument³ was heard. The ALJ issued a nine page opinion denying the 6(d) hearing for the 22 crops.The EPA Administrator affirmed that order in a five page order. The question at this point is one of law. No further record need be created. Indeed, no further record of it can be created. The district court's review will proceed in exactly the same manner as our review would proceed.

The majority acknowledges that Congress' intent in allowing immediate appellate review was to limit the number of conflicting decisions and to afford finality as soon as possible. Because we have an adequate basis from which to review, I would decide the merits and delay consideration of this appeal no longer.

1. Federal Insecticide, Fungicide and Rodenticide Act (FIFRA"). Section 6(d), 7 U.S.C. § 136d(d).

2. 7 U.S.C. § 136n(b).

3. The district court order at page 3 says AMVAC had oral argument. It seems, however, that they got to speak to the judge at a prehearing conference on the motion to amend the 6(d) hearing request. No formal argument on the motion was had.