Keith v. California Highway Commission

No. 73-3072 (9th Cir. December 3, 1973)

The Federal Highway Act of 1968 does not require new design or corridor hearings concerning a highway segment for which such hearings were held prior to the Act's passage, even though federal approval of the segment's location occurred after the statute went into effect. Nor did the subsequent passage of NEPA and promulgation of PPM 20-8 give the Federal Highway Act retroactive effect. The court also rules that the lower court, in finding that defendants had insufficiently complied with PPM 20-8 because little information about air and noise pollution from the proposed highway was made available to the public, was in error. PPM 20-8 requires that the highway department reveal prior to a public hearing only what data it has studied and plans it has made and not any given quantity of information about the 23 effects mentioned in the regulation. The court notes that it is then up to the public at the hearing to point out any deficiencies in the department's plans and adduce any additional data concerning adverse effects which might warrant altering or abandoning those plans.

A dissent argues that new hearings should be held since the highway project was not approved until after the passage of the Federal Highway Act, and that PPM 20-8 requires the highway department to develop the information necessary for full consideration of the possible effects of the proposed highway on noise and air pollution. For earlier opinions in the case, see 2 ELR 20425 and 2 ELR 20632.

Counsel are listed at 2 ELR 20425

[4 ELR 20076]

SMITH, District Judge:

The Century Freeway is a 17-mile section of interstate highway which, if constructed, will cross the southern portion of the densely populated Los Angeles basin. The district court on the petition of plaintiffs, interested individuals, associations, and corporations, enjoined all further activity (with some expressly permitted exceptions) in furtherance of the freeway until:

(a) The federal defendants (appropriate federal officials) comply with the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. §§ 4321-4347) (hereinafter NEPA).

(b) State defendants (appropriate departments and officials of the State of California) comply with the requirements of the California Environmental Quality Act of 1970 (West's Ann. Cal. Public Resources Code §§ 21000-21151 (1970)) (hereinafter CEQA).

(c) State defendants certify to Defendant Volpe that they have held, or provided the opportunity for, additional public hearings on the Century Freeway, which hearings shall focus of the effect of the freeway on air and noise pollution in accordance with § 128(a) of the Federal Aid Highway Act (23 U.S.C. § 128(a)) and PPM 20-8, 23 C.F.R. Part 1, App. A (Jan. 1, 1972, Revision).

(d) State defendants submit to federal defendants the specific project assurances required by Par. 7(b) of IM 80-1-71, 23 C.F.R. Part 1, App. A (Jan. 1, 1972, Revision).

(e) State defendants submit to the Federal Highway Administration and said Administration approves additional housing availability studies.

This appeal, which is prosecuted by the California defendants alone, presents no problems as to the propriety of conditions (a), (b), (d), and (e) of the court's injunctive order. It does pose problems as to the propriety of condition (c) and as to the breadth of the injunction which was granted. We proceed to an examination of those problems.

The building of any section of federally-funded roadway involves a series of stages. See Lathan v. Volpe, 455 F.2d 1111 (9th cir. 1971). We are here concerned with the "routing" and "engineering design" stages in which the state prepares and submits for approval of the Secretary of Transportation such surveys, plans, specifications, and estimates as relate to each stage. 23 U.S.C. § 106(a).

23 U.S.C. § 128(a)¹ provides that any state highway department [4 ELR 20077] which submits plans for a federal-aid highway project involving the "going through" of any city shall certify to the Secretary that it has held public hearings and has considered the effect of such location. As originally enacted (Act of Aug. 27, 1958, Pub. L. No. 85-767, 72 Stat. 902) this section required only that the "economic" effects of such highway location be considered. The amended version of this section (Act of Aug. 23, 1968, Pub. L. No. 90-495 § 24, 82 Stat. 828) (hereinafter amended Federal Highway Act) now provides that in addition to the economic effects of such location, these hearings should also consider its "social effect . . . , its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community." This statute has been interpreted by the Department of Transportation as requiring two public hearings on a highway "going through" a city; one for the location of the route, i.e., "a corridor public hearing," and one concerning the design, i.e., "a design public hearing." See PPM 20-8, 23 C.F.R. App. A (Jan, 1, 1972, Revision).²

The facts relative to the Century Freway "corridor" hearings are these: All hearings had been held by the end of April 1968. The location of the western portion of the freeway was approved by the Department of Transportation in April 1968. In Julu 1968 the California Highway Commission approved the location of the eastern portion of the corridor. Federal approval followed in October 1968. It appears, then, that all of the location hearings and approvals had been completed prior to January 1, 1970, the effective date of NEPA, but that the federal location approval of the eastern portion followed the enactment on August 23, 1968, of the amended Federal Highway Act. The locations were fully approved prior to the effective date(January 17, 1969) of PPM 20-8. The location hearings did comply with the law and the regulations in effect at the time they were held and at the time they were submitted for approval.

A problem is posed: Did the amended Federal Highway Act, effective August 23, 1968, by itself, or taken in conjunction with NEPA, effective January 1, 1970, operate retroactively to require that that which had been lawfully done prior to the enactment of either act be redone? The rule is that civil statutes are presumed to operate prospectively and will be applied retroactively only if it can be found that Congress has clearly and unambiguously indicated its intention to make the statute retroactive.³ The trial court did not consider the problem of retroactivity as such but did hold that the language of 42 U.S.C. § 4332, "[t]he 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 policy set forth in this chapter," compelled the conclusion that new corridor hearings were required. The result is supported by the decision in Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972), Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693 (2d Cir. 1972),⁴ and D.C. Federation of Civic Associations, Inc. v. Volpe, 434 F.2d 436 (D.C. Cir. 1970) (MacKinnon, J., dissenting). Contra, Township of Hopewell v. Volpe, 446 F.2d 167 (3d Cir. 1971).

Examining the amended Federal Highway Act separately and in conjunction with NEPA we do not find that unambiguous indication of congressional intent necessary to retroactivity. There is nothing in the language of the amended Federal Highway Act which indicates a congressional intent that it should be given retroactive effect. In the enactment of NEPA Congress did not use any language suggesting the retroactivity of the amended Federal Highway Act. It appears from the location approvals granted and from the regulations that the interpretation of the highway administrator, which is entitled to some weight, was against retroactivity.⁵

The amended Federal Highway Act required hearings on the economic, social, and environmental impacts of federal highways. Certainly it could not be the purpose of NEPA (concerned only with the environment) to make the amended Federal Highway Act retroactive so as to require new social and economic impact hearings. If congress intended that NEPA give the amended Federal Highway Act a partial retroactivity to preserve the environmental hearing requirements of that Act, why was such a simple intention buried in a statement of general policy rather than expressly stated? Can it be fairly inferred that Congress, which did not in NEPA require mandatory hearings,⁶ did by enacting NEPA disclose an unambiguous intention to make hearings mandatory in federal highway projects as distinguished from other federal projects by giving retroactivity to the amended Federal Highway Act, which Act did not provide for its own retroactivity? Can it be fairly inferred that NEPA, which is directed to federal rather than state agencies, makes retroactive that portion of the amended Federal Highway Act which is directed to the duties of state agencies? We think not.

The district court required that new design hearings be held, the facts relative to the design hearings are these:

The State defendants divided the Century Freeway into eight segments for the purpose of planning the highway design and securing Federal Highway Administration approval.The design of one segment was approved on August 14, 1968.Our reasons for holding that the amended Federal Highway Act was not retroactive so as to require new corridor hearings lead us to the conclusion that neither it nor PPM 20-8 were retroactive as to design hearings. Design hearings for the remaining seven segments were held between June 24, 1969, and May 13, 1970. The following discussion applies only to the seven design hearings held after the effectve date of PPM 20-8.

There was a full compliance with the amended Federal Highway Act. Public hearings were held and the reports filed did indicate "the consideration given to the economic, social, environmental and other effects of the plan or highway location or design and various alternatives which were raised during the hearing or which were otherwise considered." (Emphasis supplied.) See note 1, supra.

The district court recognized the fact that hearings had been held and that there had been some consideration given to environmental problems but decided that there had been an insufficient compliance with PPM 20-8 because little information about the problem of air and noise pollution was made available to the public.⁷

[4 ELR 20078]

In our opinion the district court imposed a burden on the defendants not required by the law or regulations. We start with the proposition that the building of highways is a function of the executive, subject to court control only when the executive acts contrary to the Constitution, the Acts of Congress, or its own regulations. We look, therefore, to the amended Federal Highway Act and the regulations to ascertain the duties of the Federal Highway Administration and the State defendants.

Insofar as the amended Federal Highway Act is concerned we find a congressional intent to provide a public forum and nothing more. If the public, afforded the right to a hearing, is appathetic enough not to request one, then there need be none. This indicates to us that Congress placed the duty of going forward at the hearings upon the public. There is no suggestion in the Act that the concerned agencies were required to conduct an educational campaign or gather source material for the debate.

The regulation, PPM 20-8, required more. Paragraph 8a(3) does require that the state highway authority notify the public in advance of the hearings, that "maps, drawings, and other pertinent information developed by the State highway department . . . will be available for public inspection and copying" prior to the hearings. (Emphasis supplied.) PPM 20-8, par. b(3) does require that at the public design hearing information about "design alternatives studied by the State highway department shall be made available." (Emphasis supplied.)

We think the fair import of PPM 20-8 is that the highway department reveal what it has studied, what it has developed, and what alternatives have been considered so that the public may know the route and principal design features of the highway and at the public hearing made known their views as to any effect that the highway may have. We do not believe that it can be construed to require highway departments to develop any given quantity of information about the 23 effects⁸ mentioned in PPM 20-8, par. 4(c), before a valid design hearing may be held. We do not review the highway department's obligation, political in nature, intelligently to consider all the effects that a proposed action may have. We are considering only what is required to be done to fulfill the requirement for a public hearing.⁹ It may be that in any given case inadequate information will be developed on one or more of the effects of the proposed federal highway. It may be that in some instance the effect of the highway on historic landmarks will be completely ignored. In that case the prehearing planning would be poor, but it does not appear to us that deficiencies in planning should vitiate a hearing, the purpose of which is to reveal those deficiencies. In short, we think that what is required is that the highway department reveal what it has planned and that at a public hearing the public be given an opportunity to tell the highway department why what has been planned should be abandoned or changed because of the evil effect which would flow from it.¹⁰

It may be that the compliance with NEPA and CEQA required by the decree will reveal such deficiencies in the location and design planning in light of the environmental impacts that the Century Freeway project must be abandoned or the location and design substantially altered, but we are of the opinion that neither new corridor nor design hearings are required by NEPA, the amended Federal Highway Act, or PPM 20-8.¹¹

We see no merit in the argument made with respect to the breadth of the injunction. See Lathan v. Volpe, supra.

The case is remanded to the district court for further proceedings not inconsistent herewith.

1. "Public hearings

"(a) Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town, or village, either incorporated or unicorporated, shall certify to the Secretary that it has had public hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such, urban planning as has been promulgated by the community. Any State highway department which submits plans for an Interstate System project shall certify to the Secretary that it has had public hearings at a convenient location, or has afforded the opportunity for such hearings, for the purpose of enabling persons in rural areas through or contiguous to whose property the highway will pass to express any objections they may have to the proposed location of such highway. Such certification shall be accompanied by a report which indicates the consideration give to the economic, social, environmental, and other effects of the plan or highway location or design and various alternatives which were raised during the hearing or which were otherwise considered."

2. The citation is to the Policy and Procedure Memorandum effective at the time o the entry of the preliminary injunction in this case.

3. Greene v. United States, 376 U.S. 149 (1964; Hassett v. Welch, 303 U.S. 303 (1938); United States v. Perry, 431 F.2d 1020 (9th Cir. 1970).

4. In Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693 (2d Cir. 1972), the court made the requirement for new hearings turn upon the date of federal approval. We see no purpose in this. The law in question imposed a duty on state highway departments. We think that the adequacy of the performance of the duty should be judged by the law in effect when the duty was performed. We do not think that a state's duty should be made to depend upon the "in-basket" and "out-basket" flow in a federal bureau unless Congress expressly says so.

5. PPM 20-8 par. 6(d) provides with respect to projects which had had location approval prior to PPM 20-8 that new hearings were required only under circumstances not relevant here. See Triangle Improvement Council v. Ritchie, 314 F. Supp. 20 (S.D. W.Va. 1969), aff'd 429 F.2d 423 (4th Cir. 1970), cert. dismissed as improvidently granted, 402 U.S. 497 (1971).

6. Jicarilla Apache Tribe v. Morton, 471 F.2d 1275 (9th Cir. 1973).

7. The district court said in its original opinion (Keith v. Volpe, 352 F.Supp 1324 (C.D.Cal. 1972)) at page 1339:

Having examined the transcripts of the hearings and the reports on the hearings submitted to the FHWA by the state defendants, the Court is not prepared to say that the hearings were totally inadequate in their consideration of the relevant social, economic, and environmental effects, nor that they provided an inadequate "public forum * * * for presenting views" on alternate locations and designs for the freeway. The hearings may not have been ideal, but as paragraph 4c of PPM 20-8 recognizes, each possible social, economic, or environmental effect need not necessarily "be given equal weight in making a determination upon a particular highway location or design." Nevertheless, the transcripts and the reports reveal that very little consideration was given to one of the most important of the Century Freeway's effects — i.e., its effect on noise and air pollution. This effect is so crucial and the consideration given to it so minimal that the Court believes that further work on the freeway should be enjoined until the state defendants certify to the FHWA that they have held, or have provided an opportunity for, new public hearings focusing on the likely effect of the freeway on air and noise pollution.

Later, in its decision on a motion to amend the preliminary injunction the court said at page 1353:

The Court believes that the public hearing requirement is broader in scope than the federal defendants contend. The state highway authorities must do more than merely permit members of the public to come to an auditorium and express whatever concerns they might have at the time. PPM 20-8, 23 C.F.R. Part 1, Appendix A, which implements Section 128(a), imposes upon the state authorities the responsibility to provide people who attend public hearings with information about the alternatives that exist.Paragraph 8a(3) of PPM 20-8 provides that the state highway authorities must notify the public, in advance of hearings, that "maps, drawings, and other pertinent information developed by the State highway department * * * will be available for public inspection and copying" prior to the public hearings. Paragraph 8b(3) of PPM 20-8 provides,

"At each required corridor public hearing, pertinent information about location alternatives studied by the State highway department shallbe made available. At each required highway design public hearing information about design alternatives studied by the State highway department shall be made available."

The state defendants did not meet their obligations by simply convening hearings. Air and noise pollution is one of the social, economic, and environmental effects listed in paragraph 4c of PPM 20-8; information about the problem clearly is pertinent to the consideration of the design alternatives that are available on a given freeway project. The consideration given to air and noise pollution at the design hearings on the Century Freeway was inadequate not because the members of the public in attendance expressed little interest in the problem, but because little information about the problem was made available to the public. Therefore additional design hearings are appropriate.

8. These are:

"(1) Fast, safe and efficient transportation.

(2) National defense.

(3) Economic activity.

(4) Employment.

(5) Recreation and parks.

(6) Fire protection.

(7) Aesthetics.

(8) Public utilities.

(9) Public health and safety.

(10) Residential and neighborhood character and location.

(11) Religious institutions and practices.

(12) Conduct and financing of Government (including effect on local tax base and social service costs).

(13) Conservation (including erosion, sedimentation, wildlife and general ecology of the area).

(14) Natural and historic landmarks.

(15) Noise, and air and water pollution.

(16) Property values.

(17) Multiple use of space.

(18) Replacement housing.

(19) Education (including disruption of school district operations).

(20) Displacement of families and businesses.

(21) Engineering, right-of-way and construction costs of the project and related facilities.

(22) Maintenance and operating costs of the project and related facilities.

(23) Operation and use of existing highway facilities and other transportation facilities during construction and after completion. This list of effects is not meant to be exclusive, nor does it mean that each effect considered must be given equal weight in making a determination upon a particular highway location or design." PPM 20-8, par. 4(c)

9. We note PPM 20-8, par. 6(a) requires only that "a public hearing must be held or an opportunity afforded" and that whether there be a hearing or not the Federal Highway Administrator is required to review the obligation of the state to do adquate planning.

10. It should be noted here that we are considering only the requirements of PPM 20-8 which is directed to the State defendants. Even though NEPA was effective prior to three of the design hearings it placed no duty on the State defendants. CEQA places a duty upon the California defendants to study environmental effects but it was not effective until September 18, 1970, after the hearings had been held.

11. We do not intimate that if, as a result of the NEPA or CEQA studies changes in location or design are thought to be required to be made, additional public hearings would not then be necessary.

[4 ELR 20076]

HAMLEY, Circuit Judge (Dissenting):

I respectfully dissent. After lengthy hearings, the district court wrote a thoroughly documented twenty-nine page opinion (352 F. Supp. 1324 (C.D. Cal. 1972)), dealing with all of the issues in this case, includig the necessity of new design and corridor hearings. I agree with the conclusions reached by the district court.

Design Hearings

The district court's determination that new design hearings were [4 ELR 20079] necessary was predicated upon the fact that, but for one segment of the Century Freeway, the State's design hearings were held after the amendment of section 128(a) of the Federal-Aid Highway Act, 23 U.S.C. § 128(a), on August 23, 1968. Prior to this amendment, section 128(a) required only that the State hold public hearings to consider the "economic effects" of constructing the proposed freeway. Under the amendment, however, the State was required to hold public hearings to consider the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the community.

As the district court pointed out, regulations prepared by the Federal Highway Administration (FHWA) pursuant to amended section 128(a), clarify the basic statutory requirements. See PPM 20-8, 23 C.F.R., Part I, App. A. Under these regulations, State highway authorities are required to hold two sets of hearings: first, a "corridor public hearing," and second, a "highway design public hearing." Paragraph 4c of PPM 20-8 lists twenty-three possible "social, economic, and environmental effects" that are relevant to the selection of routes and designs for proposed highways. The fifteenth of these possible effects is: "(15) Noise, and air and water pollution."

The district court, after examining the transcripts ofthe hearings and the reports on the hearings submitted to the FHWA by the state defendants, concluded that very little consideration had been given to the effect of the Century Freeway on noise and air pollution. This led the district court to state:

"This effect [of noise and air pollution] is so crucial and the consideration given to it so minimal that the Court believes that further work on the freeway should be enjoined until the state defendants certify to the FHWA that they have held, or have provided an opportunity for, new public hearings focusing on the likely effect of the freeway on air and noise pollution." 352 F. Supp. at 1339.

In rejecting this district court view, the majority construes section 128(a) and PPM 20-8 as requiring only that the State provide an opportunity for a public hearing and, if one is demanded, that the State need make available to the public only the data actually considered by the State. According to this view, if the State has given minimal consideration to particular social, economic and environmental effects, it need only so indicate. The duty of providing additional relevant data regarding possible adverse effects of the proposed project, the majority holds, lies with the public.

It seems to me this view of the state's duties regarding public hearings is inconsistent with the express language of PPM 20-8. The regulation "requires State highway departments to consider fully a wide range of factors in determining highway locations and highway designs." PPM 20-8, par. 1. (Emphasis added.) One of the factors which must be given full consideration is the possible effect on noise and air pollution. PPM 20-8, par. 4(c)(15). The regulation requires that this factor be fully considered, not merely that it be given some passing consideration, as the majority seems to suggest.

The hearing procedures established by PPM 20-8 "are intended to afford full opportunity for effective public participation in the consideration of highway location and design proposals. . . ." PPM 20-8, par. 1. (Emphasis added.) To accomplish this end, the State must make available to the public "maps, drawings and other pertinent information developed by the State highway department" regarding design proposals. PPM 20-8, par. 8(a)(3). The majority emphasizes that this latter requirement extends only to such pertinent information as is actually developed by the State highway department. But this ignores the fact that the State has an obligation to develop that quantity of information necessary for full consideration of noise and air pollution effects.

In my opinion, PPM 20-8 does, therefore, place on the State the duty of developing the information necessary for full consideration of the possible effects of the proposed freeway on noise and air pollution. That information must then be made available to the public for consideration at a public hearing.

The majority would separate the question of the adequacy of the hearings from the question of whether the State has fulfilled its obligation "intelligently to consider all the effect that a proposed action may have." In my view, the questions are not separable.If the State has failed to conduct sufficient studies and develop that quantity of information necessary for full consideration of the possible effects of the project on noise and air pollution, then it is impossible for there to be a full and effective public participation in the consideration of the project and its alternatives.

Corridor Hearings

The district court held that new corridor hearings are required because section 102(2)(c) of the National Environmental Policy Act of 1969 (NEPA) requires the federal defendants to prepare an environmental impact statement. Such a statement, the court noted, requires reconsideration of the entire Century Freeway project. As the district court said:

"Not only must they reexamine the specific route and design that they have proposed for the freeway, but they must also consider alternative means of transportation and even abandonment of the project entirely. Section 21100 of CEQA [California Environmental Quality Act of 1970] places similar demands on the state defendants. Since NEPA and CEQA demand a thorough reevaluation, it would make little sense to require the state defendants to seek the views and observations of the public on the design of the freeway, but to excuse them from consulting with the public on the broad issue that PPM 20-8 reserves for corridor hearings — i.e; the issue of 'the need for' the freeway." 352 F. Supp. at 1340.

The majority concludes that new corridor hearings need not be held because neither section 128(a) of the Federal-Aid Highway Act nor NEPA specifically provides that the 1968 amendment to section 128(a) is to be applied retroactively. This conclusion is reached by focusing attention on the fact that corridor hearings were completed prior to the 1968 amendment, rather than on the fact that the entire project was still under consideration, and no final approval of it had been given by that date. In my view, retroactivity, as such, must pertain to the project as a whole and not to the framents of procedure, such as the corridor hearings.

The majority acknowledges that the determination of the district court is supported by the decisions in Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972), Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693 (2d Cir. 1972). and D.C. Federation of Civic Associations, Inc. v. Volpe, 434 F.2d 436 (D.C. Cir. 1970).

In Arlington, the court felt compelled by the Congressional directive in section 102 of NEPA to conclude that the requirements added by the 1968 amendment to "Section 128(a) apply to a highway ongoing at the effective date of the amendment if the costs of altering or abandoning the proposed location would not certainly outweigh whatever benefits might be derived therefrom." Id. at 1337.

In the Monroe County case, the Second Circuit reached a similar conclusion but adopted a standard different from Arlington. There the initial hearing on the highway project in question had been held several years earlier, in 1966. In holding that new hearings are required whenever federal approval of plans, specifications and estimates for the project ("P S and E approval") has not been given prior to the effective date of the amendment, the Second Circuit said:

"This rule is based upon the fact that a hearing is a condition precedent to the granting of federal aid, and, therefore, the Secretary must apply the statute which is in effect when he awards that aid. This concept is consistent with the federal policy which favors the advancement of environmental concerns. 42 U.S.C. § 4332(1) [Section 102 of NEPA], and gives recognition to the importance of the hearings to proper decision making [citing D.C. Federation of Civic Associations, Inc. v. Volpe, 434 F.2d at 436, 441-442 (D.C. Cir. 1970)]." 474 F.2d at 701.

Although the standard adopted in Monroe County does have the [4 ELR 20080] virtue of definiteness, I believe that Arlington states the better test for determining whether new corridor hearings must be held. The purpose of corridor hearings is to insure an opportunity for public participation in the process of determining the need for, and the location of, a federal highway. PPM 20-8(4)(a)(2). If the costs of altering or abandoning a proposed location would certainly out-weigh whatever benefits might be derived therefrom, the new hearings would be a mere formality, and it would be futile to require that they be held simply because P S and E approval was not given prior to the effective date of the amendment.

The Arlington test is desirable also because it is similar to the "practicability" test for determining whether a reassessment of the "basic course of action" is required by NEPA. Thus, in practice, it is only where a reassessment of the basic course of action of the proposed project is practicable and therefore required by NEPA, and the original corridor hearings failed to meet the requirements of the 1968 amendment, that the corridor hearing procedures of section 128 should be reinstituted.

The reassessment of the project required by NEPA necessarily entails consideration of the "need for" the project. Section 128(a) and PPM 20-8 decree that state officials may not make decisions on such basic issues as the "need for" a highway without public participation at corridor hearings. It is appropriate, therefore, that those hearing procedures be utilized for the reevaluation that both NEPA and CEQA require. This approach is entirely consistent with the Congressional directive that the laws of the United States be interpreted and administered in accordance with the policies of NEPA "to the fullest extent possible." See Arlington Coalition on Transportation v. Volpe, supra, at 1337.

In rejecting the district court's conclusion that new corridor hearings must be held, the majority emphasizes the fact that "[i]n the enactment of NEPA Congress neigher mentioned the amended Federal Highway Act nor used any language suggesting its retroactivity." This statement, it seems to me, either ignores the strong policy directive contained in NEPA, or misconceives the reasons for inclusion of that directive.Indeed, the only case the majority cites in support of its position is Township of Hopewell v. Volpe, 446 F.2d 167 (3d Cir. 1971), a case in which NEPA was not even mentioned.

It is probable than when Congress enacted NEPA it did not even consider the issue raised on this appeal. Congress recognized that it was impossible for it to examine each existing piece of federal legislation in order to identify a construction which would best serve its environmental protection goals under all circumstances. Thus, instead of undertaking such a task, Congress directed 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 policy set forth in this chapter. . . ." 42 U.S.C. § 4332. This clear statement of Congressional intent is rendered meaningless by the conclusion that a suggested application of a federal statute in furtherance of the policies of NEPA is to be rejected, as the majority states, because Congressional intent is "buried in a statement of general policy rather than expressly stated."

I am in full agreement with the views expressed by the district court with regard to the necessity for new design and corridor hearings.

While the State urges a defense of laches, the majority did not find it necessary to discuss that issue. Whether the defense of laches bars a cause of action depends upon the circumstances of the case and is a question addressed to the equitable discretion of the trial court. Burnett v. New York Central R. Co., 380 U.S. 424, 435 (1965). Under all of the circumstances of this case, I do not believe there was such lack of diligence and unreasonable delay as would require us to hold that, in rejecting this defense, the district court abused the discretion vested in him.