Conservation Soc. of Southern Vermont, Inc. v. Secretary of Transp.

• Citation: 531 F.2d 637
• Decision Date: 18 February 1976
• Docket Number: Nos. 63,288,D,s. 63
• Parties: , 6 Envtl. L. Rep. 20,207 The CONSERVATION SOCIETY OF SOUTHERN VERMONT, INC., et al., Appellees, v. SECRETARY OF TRANSPORTATION, et al., Appellants. ockets 73-2629, 73-2715.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 637

531 F.2d 637

8 ERC 1762, 6 Envtl. L. Rep. 20,207

The CONSERVATION SOCIETY OF SOUTHERN VERMONT, INC., et al., Appellees, v. SECRETARY OF TRANSPORTATION, et al., Appellants.

Nos. 63, 288, Dockets 73-2629, 73-2715.

United States Court of Appeals, Second Circuit.

Submitted Dec. 10, 1975.

Decided Feb. 18, 1976.

Harvey D. Carter, Jr., Bennington, Vt. (Williams, Witten, Carter & Wickes, Bennington, Vt.), for appellees.

Robert C. Schwartz, Asst. Atty. Gen. Vt., Montpelier, Vt., Walter Kiechel, Jr., Acting Asst. Atty. Gen., Edmund B. Clark, Kathryn A. Oberly, Attys., Dept. of Justice, Washington, D.C., for appellants.

Sarah Chasis, New York City, of counsel, for amici curiae Natural Resources Defense Council, Inc.

Arthur J. O'Dea, Manchester, Vt., for amicus curiae, Town of Manchester.

Before MOORE, MULLIGAN and ADAMS, ^* Circuit Judges.

PER CURIAM:

On December 11, 1974 this court rendered its opinion in Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 2 Cir., 508 F.2d 927, which affirmed a judgment of the District Court of Vermont reported in 362 F.Supp. 627 (1973). The Solicitor General petitioned for and was granted a writ of certiorari. On October 6, 1975, this court's prior judgment was vacated and the case was remanded for further consideration in light of Public Law 94--83 and Aberdeen & Rockfish R.R. v. SCRAP, 422 U.S. 289, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975). 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29. The reported opinions fully set forth the facts involved in this litigation and they will not be repeated here except as relevant to the remand.

In Conservation Society of Southern Vermont v. Secretary of Transportation, supra, this court reaffirmed the rule it announced in Greene County Planning Board v. FPC, 2 Cir., 455 F.2d 412, cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972) which required that an Environmental Impact Statement (EIS) sufficient to comply with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA) had to be prepared by the responsible federal agency and not by a state agency. As a result of this decision, the Federal Highway Administration (FHWA) initially ordered an almost total halt to all federally funded highway projects in the three states of this Circuit, and the states themselves have refrained from committing additional funds until the issue was finally decided. In response to our decision in Conservation Society, the Congress enacted Public Law No. 94--83 which added a new section 102(2)(D) to NEPA. ¹ The legislative history of the enactment makes it clear that the Congress intended to overturn our decision in Conservation Society. 1975 U.S.Code Cong. & Admin. News 1797, quoting from Senate Rep. 94--52 at 2. Indeed in the District Court Judge Oakes had earlier suggested that delegation of authority to prepare the EIS to the responsible state agency was an issue that should be taken to Congress. 362 F.Supp. at 631. Under the law as amended the state agency may prepare the EIS provided the federal agency 'furnishes guidance and participates in such preparation' and provided 'the responsible Federal official independently evaluates such statement prior to its approval and adoption.' Judge Oakes's findings in the District Court establish that the appropriate federal official 'maintained frequent contact' with state officials in the preparation of the EIS, and was in verbal communication two or three times weekly with the state official primarily responsible for the preparation of the EIS; the FHWA division engineer undertook a field trip to examine the proposed route, during which environmental considerations were noted and discussed. 362 F.Supp. at 629. Although the state agency prepared the EIS it was in consultation with FHWA; the draft was submitted to FHWA at its offices in both Vermont and New York. Id. at 630. It was reviewed by the FHWA regional office, the division office, the federal planning engineer and the federal area engineer; it was circulated by the regional office to an interdisciplinary task force which made three suggestions, all of which were incorporated in the final EIS. The District Court concluded that the EIS was prepared by the local state agency 'with communication from and cooperation of the regional FHWA, followed by review by an FHWA 'task force' at the regional level . . ..' Id. at 630.

These findings have not been appealed and we conclude that there was compliance with the procedural requirements of Public Law No. 94--83. In our prior opinion we noted that 'the district court found that substantively the EIS was adequate. There is no appeal from this aspect of the district court opinion.' 508 F.2d at 929 n. 6. ²

We also affirmed the holding of the district court that an EIS be prepared for the entire 280-mile length of Route 7 even though no plan then existed for constructing the superhighway through Connecticut, Massachusetts and Vermont. 508 F.2d at 934--36. The Supreme Court remand here cites SCRAP, supra, which holds that a federal agency must prepare its EIS at 'the time at which it makes a recommendation or report on a proposal for federal action.' 422 U.S. at 320, 95 S.Ct. at 2356, 45 L.Ed.2d 215 (emphasis in original). Here the findings of the district court were that, although federal officials had knowledge of the overall planning process of state officials, there was 'no overall federal plan' for improving the corridor into a superhighway. 362 F.Supp. at 636. The federal action being taken here relates only to the twenty-mile stretch between Bennington and Manchester in Vermont. The stretch is 'admittedly a project with local utility,' 508 F.2d at 935. Hence we see no irreversible or irretrievable commitment of federal funds for the entire corridor and under SCRAP no obligation for a corridor EIS. See Friends of the Earth v. Coleman, 513 F.2d 295, 299--300 (9th Cir. 1975); Trout Unlimited v. Morton, 509 F.2d 1276, 1283--85 (9th Cir. 1974).

In light of the remand and this discussion, we reverse our prior decision and reverse the judgment of the district court.

ADAMS, Circuit Judge (dissenting in part):

There can be no doubt that the Court's previous decision in this matter (Conservation Society I) ¹ was the impetus for the congressional action that resulted in the addition of a new section 102(2)(D) to the National Environmental Policy Act (NEPA). ² But my understanding of the intent of the Congress, as it is expressed in the amendatory language and illuminated by the legislative history, diverges from that of the majority. In my view, the legislative purpose was to modify and clarify the rigid standard that Congress perceived Conservation Society I had established for federal involvement in the preparation and drafting of the environmental impact statement (EIS). The intent was not simply to overturn that ruling or to repudiate altogether the requirement of substantial federal control of the EIS. Because it is clear that the degree of federal control mandated by the modified statute has not been exercised in this case, I respectfully dissent from that portion of the majority opinion addressing the effect of the amendment to NEPA.

The roots of the question now before the Court find their grounding in Greene County. ³ Construing the requirement of NEPA that an EIS be prepared 'by the responsible federal official,' ⁴ this Court there held that the statute prohibited the federal agency from delegating to a state agency the duty to prepare and draft the EIS. A major risk of such a procedure, specifically mentioned by the Greene County Court, is that the state agency's own interest in completion of the project in question might result in a biased EIS, one 'based upon self-serving assumptions.' ⁵

Notwithstanding the refusal of five other courts of appeals to follow the Greene County rule, ⁶ this Court adhered to it when the issue was again presented in Conservation Society I. ⁷ The lack of objectivity that might result from permitting the state agency to prepare the EIS was again put forward as one of the bases for the Court's decision. ⁸

In response to Conservation Society I, Congress amended NEPA by adding a new section 102(2)(D). It provides that an EIS shall not be deemed insufficient solely because it was prepared by a state agency if 'the responsible Federal official furnishes guidance and participates in such preparation (and) . . . independently evaluates such statement prior to its approval and adoption . . ..' ⁹ The Supreme Court's order vacating our prior judgment and remanding the case ¹⁰ places the meaning of the amendment to NEPA squarely before us.

A.

My analysis begins with the particular language Congress employed to amend NEPA. The amendment concerns only the preparation of the EIS; it does not affect the requirement of section 102(2)(C) of NEPA that the EIS be formally adopted by the federal official. It appears to permit an EIS to be prepared by a state agency if the federal agency discharges three specific responsibilities. The federal agency must (1) furnish guidance in the preparation of the EIS, (2) participate in the preparation of the EIS, and (3) independently evaluate the EIS prepared by the state agency before approving and adopting it. These three requirements indicate that the federal agency must remain involved in a substantial way both during and after the state agency's preparation of the EIS. To the same end, the amendment includes the statement that '(t)he procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire (EIS) or of any other responsibility under (NEPA) . . ..'

To the extent that Greene County and Conservation Society I place an absolute prohibition upon delegation to the state agency of responsibilities to prepare the EIS, they have now been overruled by Congress. But my understanding of the congressional language is that...