Scherr v. Volpe
| Decision Date | 04 August 1972 |
| Docket Number | No. 72-1113.,72-1113. |
| Citation | 466 F.2d 1027 |
| Parties | Abraham SCHERR et al., Plaintiffs-Appellees, v. John VOLPE et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert W. Warren, Atty. Gen., Richard E. Barrett, E. Gordon Young, Asst. Attys. Gen., John O. Olson, U.S. Atty., Madison, Wis., for defendants-appellants.
Walter L. Harvey, Madison, Wis., amicus curiae.
Frederick W. Miller, Allan R. Koritzinsky, Donald W. Large, Madison, Wis., for plaintiffs-appellees.
Before Mr. Justice CLARK*, SPRECHER, Circuit Judge and CAMPBELL, Senior District Judge.**
This ecology case arises under the National Environmental Policy Act ("NEPA") of 1969. 42 USC § 4321 et seq. On September 7, 1971 the five individual plaintiffs who reside in the Village of Hartland, Wisconsin, filed suit against John Volpe, United States Secretary of Transportation; Norman Clapp, Wisconsin Secretary of Transportation; William R. Redmond, Chairman, Wisconsin Division of Highways; and S. T. Banaszak, District Engineer, Wisconsin Division of Highways, charging that these officials failed to comply with the procedural requirements of Section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), with respect to the upgrading of a section of State Highway 16 from Pewaukee to Oconomowoc, Wisconsin. Following a hearing on the plaintiffs' motion for a preliminary injunction, the district judge on December 7, 1971, 336 F.Supp. 882, enjoined the above officials from further construction of the highway until the requirements of NEPA had been complied with. The Wisconsin highway officials appeal from the entry of the preliminary injunction.
The record discloses that the State of Wisconsin proposed to convert Highway 16 from its present status as a two lane conventional highway to a four lane freeway in northwestern Waukesha County, where the plaintiffs reside, between the communities of Oconomowoc and Pewaukee, a length of approximately twelve miles. It had been determined that the present highway system in this area had become deficient in providing safe and reasonable operating services to the motorists of southeastern Wisconsin. The upgrading project requires the acquisition of additional right-of-way throughout in order to provide for adequate width, frontage road and interchange construction. The project is part of a Federal-Aid highway program and is jointly financed and supervised by the Federal Highway Administration and the State of Wisconsin.
NEPA became effective on January 1, 1970. Although the Highway 16 project had been in the planning stages for many years, the design hearing was not held until June 30th, 1970, several months after the effective date of the Act. Final federal approval of the design occurred on January 26, 1971. On August 24, 1971 construction contracts were accepted in an amount exceeding one million dollars for a 4.1 mile segment of the entire project. Actual construction of this portion commenced on November 22, 1971.
In its findings of fact the district court noted that the Highway 16 project is located in the Lake Kettle Moraine area, the site of "eleven lakes, two major rivers and their watershed and flood plains, wetlands located just west of the Village of Pewaukee and in and around the county park at Forest and Grass Lakes, the Kettle Moraine forest and other woodlands, wild life habitats, ice age geological formations and rough topography unique to the Kettle Moraine area." Regarding the environmental consequences of the construction project, the district court specifically found that the immediate effects would include an alteration of natural wild life habitats, stripping of forest land with attendant erosion, increased levels of noise, air and water pollution, and interference with the natural beauty and recreational value of the area.
The ultimate finding of the district court upon which the injunction was premised was that the defendants had failed to file an environmental impact statement of the kind described in and required by § 102(2)(C) of NEPA. The defendants acknowledge that no impact statement was filed but argue that the Highway 16 project was not a "major federal action significantly affecting the quality of the human environment" and that therefore it was not necessary to satisfy the procedural requirement of filing an impact statement. Alternatively, the defendants maintain that notwithstanding the absence of an impact statement, they have complied with all of the substantive and procedural requirements of the National Environmental Policy Act of 1969. A third attack on the entry of the preliminary injunction arises from the defendants' contention that the plaintiffs have made no showing that the construction of the Highway 16 project would result in irreparable harm to the environment. The defendants further claim that Section 102(2)(C) is not applicable to the Highway 16 project because it was in progress prior to January 1, 1970, the effective date of the Act. As a final ground of error the defendants maintain that the district court abused its discretion in refusing to require the plaintiffs to post a security bond as a prerequisite to the granting of the preliminary injunction.
We start with the observation that our function in reviewing the entry of a preliminary injunction is a limited one. Appellate tribunals may set aside the issuance of such injunctions only where it can be said that the discretion vested in the district court with respect to these matters has been improvidently exercised. See Particle Data Laboratories, Inc. v. Coulter Electronics, Inc., 420 F.2d 1174, 1178 (7th Cir. 1969). The circumstances under which motions for preliminary injunction are made and heard illustrate the reasons for the narrow scope of review. The district judge is typically presented with an abbreviated set of facts, "requiring a delicate balancing of the probabilities of ultimate success at the final hearing with the consequences of immediate irreparable injury which could possibly flow from the denial of preliminary relief." See United States Steel Corp. v. Fraternal Ass'n of Steelhaulers, 432 F.2d 1046, 1048 (3d Cir. 1970). Absent a clear abuse of discretion, the normal course of wisely committing this balancing process to the district judge will not be disturbed. Against this background we proceed to the merits of the controversy.
The broad substantive policies and objectives of NEPA are contained in § 101 thereof. There the Congress expressed its basic goal that the federal government should strive for the protection of environmental values. Environmental protection was not established as an exclusive goal, rather the Congress restructured priorities in such a way that the ecological consequences of a federal action must now be given consideration. Thus § 101(b) of NEPA provides that "it is the continuing responsibility of the Federal Government to use all practical means, consistent with other essential considerations of national policy," to "assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings," to attain "an environment without degradation", to "preserve important historic, cultural, and natural aspects of our national heritage," and to insure that "each person should enjoy a healthful environment."
The method by which the national goals would be achieved was left undefined in Section 101. However, Congress did not simply provide us with a promise incapable of realization. Important and much less flexible procedural requirements designed to insure that federal officials meet the sweeping Congressional commitment to the environment are contained in Section 102 of NEPA. The pertinent portions of Section 102 read as follows:
Through the enactment of these procedural requirements the Congress has not only permitted but has compelled the responsible federal agencies to take environmental values into account. See Calvert Cliffs' Coord. Com. v. United States Atomic Energy Com'n., 449 F.2d 1109, 1112 (D.C.Cir. 1971). Not only must the environmental consequences of a particular action be considered, but Section 102 requires also that these consequences be weighed and balanced against other considerations, such as financial or social, which may be involved.
The environmental impact statement required by Section 102 is designed to insure that this balancing analysis is...
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