Pizitz, Inc. v. Volpe

No. 72-1995 (5th Cir. July 11, 1972)

On appeal from the Middle District of Alabama, held, that NEPA is not applicable to highway construction changes which had been contemplated in a design which complied with all required standards when originally approved. The court also finds no merit in plaintiffs' contention that federal officials could not accept an impact statement prepared by the state highway department. For the decision below, see 2 ELR 20378.

Counsel for Plaintiffs
Dieter J. Schrader
Schrader & Schwenn
Suite 400
State National Bank Building
Huntsville, Alabama 35804

Counsel for Federal Defendants
Ira DeMent, U.S. Attorney
Kenneth E. Vines, Assistant U.S. Attorney
P.O. Box 197
Montgomery, Alabama 36104

Counsel for State Defendants
Lucian L. Smith, Jr.
Alabama State Highway Department
11 South Union Street
Montgomery, Alabama 36104

Before TUTTLE, COLEMAN and CLARK, Circuit Judges.

[2 ELR 20379]

PER CURIAM:

This is an appeal from the refusal of the district court to enjoin substantial construction changes in an express highway artery at Huntsville, Alabama, on the alleged ground that the changes were being made without compliance with the applicable federal environmental statutes.

The weakness of the plaintiffs-appellants' case is that the work that was in process was a part of an approved design which, when it was approved, met all requirements. It contemplated each of the changes that are now being undertaken. While in some cases one might turn a sympathetic ear towards a contention that certain requirements of the national environmental protection act have retroactive application, it does not seem appropriate in a case like the present, as to which all standards required to be complied with had been completed when this specific project was originally approved.

We find no merit in the contentions of appellants that the responsible federal officials could not, under the applicable federal statutes accept an environmental impact statement prepared by a state highway department.¹

[2 ELR 20380]

The judgment is AFFIRMED.

1. It is significant that the Council on Environmental Quality issued interim guidelines, 35 F.R. 7390, (May 15, 1970), which provide in part:

"Before undertaking major action or recommending, or making a favorable report on legislation that significantly affects the environment, Federal agencies will, in consultation with other appropriate Federal, State and local agencies, assess in detail the potential environmental impact in order that adverse affects are avoided . . . It is imperative that existing mechanisms for obtaining views of Federal, State and local agencies on proposed Federal actions be utilized."

The Department of Transportation and the Federal Highway Administration's interpretations of the statute comported with these directions that the Federal - State relationships be used to the extent practicable. This is indicated by testimony given before the Sub-committee on Roads of the Senate and the Committee on Public Works (91st Congress, 2nd Session, p. 7, Aug. 25, 1970) in which testimony on behalf of the Federal Highway Administration included the following statement:

"Generally, our implementation of the Department's uniform procedure will require a State highway department to prepare a draft environmental statement for a project which significantly affects the quality of the environment."

There are other extensive indications of similar interpretations by the President, by CEQ, by DOT and by FHWA of this statute which they were charged with enforcing. The fact that such interpretations are entitled to great weight is judicially recognized. See Udall v. Tallman, 380 U.S. 1, 16, and Thorpe v. The Housing Authority, 393 U.S. 268.