Texas Committee on Natural Resources v. United States

Civil No. A-69-CA-119 (W.D. Tex. February 5, 1970)

This is one of the earliest cases based upon the National Environmental Policy Act (NEPA). The court grants a stay pending appeal to the Fifth Circuit. While the extensive federal project opposed by the plaintiffs is not described, there is apparently no disagreement that proceeding with construction would result in irreparable harm. The question of whether to grant the stay thus depends upon the court's assessment of plaintiffs' reasonable chance of success on appeal.The court concludes that NEPA will require FHA to re-open the case, even though FHA had completed its loan approval procedure before NEPA became law. This is not a retroactive application of NEPA, because the completion of the loan approval is only the beginning of an extensive federal project, of which no construction had yet begun when NEPA came into effect.

Counsel for Plaintiffs
Edward C. Fritz
505 North Ervay Street
Dallas, Texas 75201

Sam Houston Clinton, Jr.
205 Texas AFL-CIO Bldg.
308 W. 11th Street
Austin, Texas 78701

Counsel for Defendants
Seagal Wheatly U.S. Attorney
P.O. Box 1701
San Antonio, Texas 78206

Roger Tyler Ass't Attorney General
Capitol Station Box R
Austin, Texas 78711

[2 ELR 20574]

Roberts, J.

MEMORANDUM AND ORDER GRANTING STAY

The Plaintiffs are seeking in this Court, a stay or injunction pending appeal, which request was previously denied by the Fifth Circuit Court of Appeals under Rule 8(a), F.R. Ap. Proc. This rule requires that such request "must ordinarily be made in the first instance in the district court." Thus rule goes on to say:

A motion for such relief may be made to the court of appeals or to a judge thereof, but the motion shall show that application to the district court for the relief sought is not practicable, or that the district court has denied an application, or has failed to afford the relief which the [2 ELR 20575] applicant requested with the reasons given by the district court for its action.

In effect, the Court of Appeals has not ruled on the merits of Plaintiff's argument, and this Court clearly has the authority to issue the stay pending appeal. The Court should issue an injunction if it believes the plaintiffs have a reasonable chance of success and if irremediable harm would result if an injunction is not issued.

Obviously, this case would become moot if the defendants began construction; no Court could then undo the damage that the plaintiffs allege will occur. The main consideration then is to evaluate the plaintiff's chance of success on appeal.

The basis of the Plaintiff's motion is the National Environmental Policy Act of 1969, Public Law 91-190; 83 Stat. 852, reported at 1969 U.S. Code & Cong. News 2712 (Jan. 20, 1970), a new federal statute which became effective on January 1, 1970. This statute is both comprehensive and specific, and it definitely reflects the rapidly growing awareness and considerable concern of the federal government with regards to the environment. There is little doubt that in the future the type of activity involved here would be covered by the statute. See Conf. R. No. 91-765, 91st Cong. 1st Sess. (1969), reported at 1969 U.S. Code & Cong. News 3165 (Jan. 20, 1970).

The parties have pressed two questions upon the Court: (1) whether the application of the statute to the case here would be a retroactive application; and, if so (2) whether the statute should be applied retroactively. In view of the position we take on the first question, it will not be necessary to pass on the second.

With regards to the first question, it all depends on one's point of view. As the defendants see it, the FHA did all that was required of them before the statute passed, so that in their opinion they should not be made to go back and re-open all of these cases. With respect to any loan they are now considering or will consider, they are clearly required by the new law to consider any environmental consequences. With respect to this case, the FHA had done all their preliminary work and had actually approved the loan; the only thing that remained was to actually hand over the money. It is quite logical and reasonable to argue that in this case the court would be overturning a final agency decision.

The plaintiffs on the other hand would have us look at the whole picture. What is involved here is not merely a loan, but an extensive federal project, the consequences of which will have substantial and detrimental environmental and ecological consequences. Not one federal dollar has been expended toward this project, not one step of actual construction has been undertaken. The only thing that has occurred has been the processing of papers.

Both arguments are reasonable and sound, but under the circumstances of this case, the equities lie with the plaintiffs. The Congress has expressed in strong and clear language their concern over what we are doing to our environment. In the language of the statute, Congress has recognized the "critical importance of restoring and maintaining environmental quality." In very repetitive language, Congress has made clear that it intends to "use all practical means and measures . . . to preserve" the "natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice." Furthermore, the Congress

authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act. Sec. 102.

It is hard to imagine a clearer or stronger mandate to the Courts. In light of this language cited in the statute, this Court feels that the plaintiffs have a reasonable chance of success in appealing this case.

It should also be pointed out here that the Congress in mandatory language requires all federal agencies to undertake, to the fullest extent possible, measures to insure protection and preservation of the environment, consistent, of course, with other economic and social requirements and goals. Since no money has been expended and since no construction has begun, the Court of Appeals may find that the FHA can comply with Sec. 102. This Court feels that the plaintiffs have a reasonable chance of success in presenting this argument.

For the foregoing reasons and in accordance with Rule 8(a) of the Federal Rules of Appellate Procedure, the Stay Order Pending Appeal in this case is GRANTED.