National Audubon Society v. Volpe

No. 16,126 (N.D. Ga. January 16, 1973)

A previous ruling that the Secretary of Transportation can delegate his responsibility for preparing an impact statement under NEPA to a state highway department is vacated. In the final order, defendants consent to alter the proposed route of the interstate highway in question. See amending memorandum in Pizitz v. Volpe, 2 ELR 20635.

Counsel for Plaintiffs
Michael Padnos
Robert Funicello
1105 William-Oliver Building
Atlanta, Georgia 30303

Counsel for Defendants
Beverly Bates Assistant U.S. Attorney
P.O. Box 912
Atlanta, Georgia 30301

Harold Hill Attorney General's Office
132 State Judicial Building
40 Capitol Square
Atlanta, Georgia 30334

[3 ELR 20334]

Henderson, J.

ORDER of Sept. 11, 1972

This case is presently before the court on the plaintiffs' motion for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. The plaintiffs seek summary judgment on the claim alleged in Count II of the complaint, on the grounds that there is no genuine issue of material fact, and that the plaintiffs are entitled to a judgment as a matter of law.

This is a suit brought by several conservation organizations and Virginia Hand Callaway to present the construction of Interstate Highway I-185 (hereinafter referred to as "I-185") from Columbus, Georgia, to a connecting point with Interstate Highway I-85 just west of LaGrange, Georgia. The proposed four-lane highway will cross a parcel of land owned by Virginia Hand Callaway, and Pine Mountain. The plaintiffs allege that the road will adversely affect the environment in the Pine Mountain area by producing increases in air pollution, noise pollution and water pollution.

In Count I of their complaint, the plaintiffs contend that the defendants shouldnot be allowed to proceed with further planning and construction of I-185 because the environmental impact statement which has been prepared fails to give adequate consideration to the potential adverse environmental effects of the highway, and fails to give adequate consideration to the alternative routes, as required by the National Environmental Policy Act of 1969, 42 U.S.C. § 4332 (2) (c) (hereinafter referred to as "NEPA").

Count II of the complaint assets a separate basis for stopping the construction of I-185. The plaintiffs contend that Policy and Procedure Memorandum 90-1 (hereinafter referred to as "PPM-90-1"), a regulation of the Department of Transportation under which the Secretary of Transportation for the United States, John A. Volpe, has delegated to state highway agencies his responsibility for preparing environmental impact statements, is an illegal delegation of the Secretary's responsibilities for the preparation of environmental impact statements under NEPA.

The plaintiffs' motion for summary judgment was originally filed on March 13, 1972. Since that date the plaintiffs have filed several briefs in support of the motion, and both defendant Lance and defendant Volpe have filed several lengthy briefs in opposition to the plaintiffs' motion.

In their brief filed March 13, 1972, the plaintiffs cited the District of Columbia Circuit's opinion in Calvert Cliffs Coordinating Committee v. Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971), and the Second Circuit opinion in Greene County Planning Board v. Federal Power Commission, 455 F.2d 412 (2nd Cir. January 17, 1972) in support of the principle that federal agencies themselves must perform their environmental responsibilities and may not delegate that function to other agencies or individuals. In a second brief filed on May 2, 1972, the plaintiffs referred to two other cases, Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608 (2nd Cir. 1965) and Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971) as further support for this principle. In addition, the plaintiffs submit that PPM 90-1 is also in violation of the spirit of NEPA and would, if allowed to stand, vitiate the entire thrust and purpose of NEPA as applied to highway construction.

In briefs filed May 16, 1972, and July 17, 1972, the plaintiffs further elaborated in support of their summary judgment motion, and brought to the court's attention the recent case of Committee To Stop Route 7, et al v. Volpe, et al, Civil Action No. 15054, U.S. Dist. Ct. for Connecticut, decided on July 7, 1972. In that case the court considered the specific issue of whether NEPA requires the Federal Highway Administration to prepare its own environmental impact statement. The District Court of Connecticut, relying on the Greene County case, wherein the Court of Appeals for the Second Circuit held that an applicant could prepare a draft statement, but that the final version of the detailed statement required by § 102 (2) (c) of NEPA must be prepared by the federal agency, concluded that "federal officials [and not the Connecticut Department of Transportation] must prepare the final version of the impact statement as required by the plain wording of NEPA."

However, after the decision of the District Court of Connecticut, the United States Court of Appeals for the Fifth Circuit came to a different conclusion in the case of Pizitz, Inc., et al v. John A. Volpe, No. 72-1995 (July 11, 1972). In that case, the court stated:

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 the state highway department.

While the Fifth Circuit did not set out with particularity the basis for its conclusion, this court is bound by the Pizitz mandate.

Accordingly, in light of Pizitz, the plaintiffs' motion for summary judgment is hereby denied.

So ordered this the 6th day of September, 1972.

CONSENT ORDER of January 16, 1973

Defendant Lance having filed with the Court this day an Amended Answer stating that the State has now determined that Interstate 185 will not be constructed upon any portion of Pine Mountain, Georgia; and Plaintiffs having accepted Defendants's Amended Answer as a final resolution of this case; it is hereby

ORDERED, that the above-captioned lawsuit be and hereby is dismissed without prejudice.

Several months ago, Plaintiffs filed with this Court a Motion for Summary Judgment, which Motion was denied by this Court's Order of September 11, 1972. Plaintiffs subsequently filed a Motion for Reconsideration, which Motion has not yet been considered by the Court. Given the pendency of that Motion, and the above ordered dismissal of this lawsuit, it is hereby

ORDERED, that the Court's Order of September 11, 1972, be and hereby is vacated and Plaintiffs' Motion for Reconsideration is hereby denied.