Conservation Council of North Carolina v. Froehlke

No. 73-8095 (4th Cir. November 20, 1973)

The court denies defendants' application for an interlocutory appeal from a lower court's ruling that in a challenge to the adequacy of a NEPA impact statement, the reviewing court is not limited to the administrative record, but may take additional evidence. The controlling authority on this point is Citizens To Preserve Overton Park v. Volpe, 1 ELR 20110 (U.S. 1971), which states that the administrative record may be supplemented to a limited extent by other evidentiary material. The court notes that while de novo review, as contemplated by plaintiffs, would clearly be inappropriate, the lower court's ruling does not authorize this. For the Circuit Court's earlier decision that the lower court had an obligation to review the merits of the agency's substantive decisions regarding the EIS, see 3 ELR 20132.

Counsel for Plaintiffs
Norman B. Smith
P.O. Box 1842
Greensboro, North Carolina 27402

Roger W. Smith
P.O. Box 790
Raleigh, North Carolina 27602

Thomas Schoenbaum
U.N.C. School of Law
Chapel Hill, North Carolina 27514

Counsel for Defendants
William L. Osteen U.S. Attorney
P.O. Box 1858
Greensboro, North Carolina 27402

Wallace H. Johnson Asst. Attorney General
Edmund B. Clark
Irwin Schroeder
Jacques B. Gelin
Larry G. Gutterridge
Department of Justice
Washington, D.C. 20530

[4 ELR 20062]

Per Curiam.

This application for an interlocutory appeal arises out of a dispute over the evidentiary basis for judicial review of an impact statement required by the National Environmental Policy Act of 1969. 42 U.S.C. §§ 4321-47 (1970). We previously ruled that a reviewing court did not discharge "its proper function by merely determining that the agency has acted in a procedurally correct manner," and we remanded the case to the district court "with directions to consider the merits and review the substantive findings of the agency." Conservation Council of North Carolina v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973). On remand, the district court denied the government's motion to limit the evidence to the administrative record and certified the question under 28 U.S.C. § 1292(b) as appropriate for interlocutory appeal.

The controlling law on this issue is stated in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), and Camp v. Pitts, 411 U.S. 138 (1973). In Overton Park, the Court pointed out that 5 U.S.C. § 706(2)(A) requires a district court to determine whether the agency action was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," and in making this determination, the reviewing court "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." 401 U.S. at 416. With respect to the evidence on which the district court should base its review, Overton Park is specific:

"That review is to be based on the full administrative record that was before the Secretary at the time he made his decision. But since the bare record may not disclose the factors that were considered or the Secretary's construction of the evidence it may be necessary for the District Court to require some explanation in order to determine if the Secretary acted within the scope of his authority and if the Secretary's action was justifiable under the applicable standard." 401 U.S. at 420.

From the pretrial order, it appears that the plaintiffs contemplate a review that is tantamount to a de novo hearing. However, Camp v. Pitts, supra, establishes that a review of this scope would be inappropriate. We do not read the district court's order as authorizing de novo review. Its ruling that review will not be limited to the administrative record is consistent with Overton Park's holding that the administrative record may be supplemented to a limited extent. Viewing the order in this light, we find no reason for delaying these proceedings by an interlocutory appeal of this issue.

In the papers filed in this court the government represents that congestion of the district court's docket may preclude review before July 1974, and it suggests that a delay of this length will prove to be extraordinarily expensive. Accordingly, to prevent any needless expenditure of public funds, we request the district judge to promptly schedule and conclude the proceedings on remand. If matters of greater statutory priority will delay prompt review, we suggest that he make application to the Chief Judge of the Circuit for judicial assistance with his docket while he conducts the proceedings in this case.

The application for an interlocutory appeal is denied.