National Forest Preservation Group v. Volpe

• Decision Date: 11 December 1972
• Docket Number: No. 2152.,2152.
• Citation: 352 F. Supp. 123
• Parties: NATIONAL FOREST PRESERVATION GROUP, a Montana non-profit corporation, et al., Plaintiffs, v. John VOLPE, Individually and as Secretary of Transportation, F. C. Turner, Individually and as Federal Highway Administrator, Defendants.
• Court: U.S. District Court — District of Montana

352 F. Supp. 123

NATIONAL FOREST PRESERVATION GROUP, a Montana non-profit corporation, et al., Plaintiffs, v. John VOLPE, Individually and as Secretary of Transportation, F. C. Turner, Individually and as Federal Highway Administrator, Defendants.

No. 2152.

United States District Court, D. Montana, Butte Division.

December 11, 1972.

James H. Goetz, Bozeman, Mont., for plaintiffs.

Otis L. Packwood, U. S. Atty., Billings, Mont., Roy E. Murray, Jr., Asst. U. S. Atty., Butte, Mont., and Irwin L. Schroeder, Atty., Department of Justice, Washington, D. C., for defendants.

SUMMARY JUDGMENT

WILLIAM D. MURRAY, Senior District Judge.

This case is before the court on cross motions for summary judgment. The defendants have supported their motion with affidavits which have not been contradicted by the plaintiffs and there is no material fact upon which the parties disagree. Inasmuch as the plaintiffs have supplied memorandum which considers only two of the claims in the complaint, under Rule 7 of this court the defendants' motion to dismiss accompanied by memorandum must be considered as disposing of the other issues and the Second, Fourth and Fifth Claims are therefore dismissed.

This is an action to enjoin the construction of a federal-aid highway into the West Fork drainage of the Gallatin River in Madison and Gallatin Counties, Montana. The Montana State Highway Commission has requested and the request has been approved that the highway be designated as a primary highway under 23 U.S.C. § 103(b). The plaintiffs first contend that the preparation of the environmental impact statement (EIS), which is required by law to be prepared prior to construction of the highway, has been improperly delegated to the Montana highway administration (HA). Second the plaintiffs contend that the highway has been improperly designated a primary highway.

I. Preparation of the EIS

In charging that the delegation of the EIS is improper the plaintiffs contend that the delegation is in violation of national environmental policy and that the delegation is illegal. Neither contention has any merit for the EIS prepared by HA and adopted by the Federal Highway Administration (FHWA) fulfill all the purposes the EIS was intended to fulfill and provides the additional benefit of assistance through the local HA to the entire agency decision making process.

The directive that all Federal actions significantly affecting the quality of the human environment be accompanied by an EIS is found in 42 C.F.R. 4332 Section 102(2)(C) of the National Environmental Protection Act (NEPA). The Council on Environmental Quality (CEQ) in its regulations has declared that "the objective of Section 102(2)(C) of the Act is to build into the agency decision making process an appropriate and careful consideration of the environmental aspects of proposed action and to assist agencies in implementing not only the letter, but the spirit of the Act." (CEQ Guidelines, 36 Fed.Reg. p 4724) (1971). The question under consideration here is whether or not delegating to the HA the responsibility of preparing the EIS is a violation of the letter or the spirit of the Act.

The FHWA has delegated responsibility for preparation of the EIS in Policy and Procedure Memorandum 90-1 (PPM 90-1) entitled "Environmental Impact and Related Statements" 37 Fed.Reg. 21809 (1972). Section 6(b) requires that "the draft environmental impact statement . . . shall be prepared and circulated by the HA in cooperation with FHWA during the location study." Section 102(2)(C) of the NEPA commands that the federal government shall "include in every recommendation or report on proposals for . . . major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official." The plaintiffs here argue that PPM 90-1 is a violation of national environmental policy as expressed in Guidelines, supra, prepared by CEQ. In fact the Guidelines provide that the draft EIS need not be prepared by the responsible Federal Agency, but only that the Federal Agency take responsibility for the statement (Section 7, p. 4724).

The CEQ has reviewed and approved the procedure submitted to it by the Department of Transportation. On June 16, 1971, at the Hearings on Red Tape Before the Subcommittee on Investigations and Oversight on the House Committee on Public Works, 92nd Cong., 1st Sess., pp. 261-263, Chairman Train emphasized that the FHWA's procedures of having the draft statements prepared by the HA was in keeping with the purpose and spirit of both NEPA and the CEQ Guidelines:

"(The Guidelines) set general government wide policies and procedures but did not attempt to define for each agency how the act would affect its particular programs.

* * * * * *

The Federal Highway Administration has faced a more complex problem in dealing with the requirements of NEPA than the Corps of Engineers. As you know, the Corps itself largely plans and develops its own public works projects, whereas the FHWA operated through State Highway departments. The major role of planning, and constructing highways is played by State agencies, upon whom FHWA must rely for much of the information contained in Environmental statements."

Mr. Train concluded his remarks by voicing his belief that FHWA's procedure would lead to substantial improvements to the quality of the EIS on highway projects (p. 264). Under Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L. Ed.2d 616 (1964) an administrative agency's interpretation of its own regulations is entitled to great deference by the court.

More important Congress ratified with positive legislation the procedure requiring the HA to prepare the EIS. Red Lion Broadcasting Company v. F. C. C., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed. 2d 371 (1969). With knowledge that it was the intent of the Department of Transportation to utilize the local HA in preparing the EIS, on December 30, 1970, Congress passed 136(b) of the Federal-Aid Highway Act of 1970.¹ This section ordered the Secretary to submit to Congress guidelines designed to assure that possible adverse economic, social and environmental effects have been fully considered. 23 U.S.C. § 109. It is important to note that Congress implicitly approves of the known procedure as long as the instructions for consideration in the amendment are carried out.

It is apparent that FHWA policy is not a violation of the CEQ Guidelines and it is also evident that that agency has given its approval to the procedure. But the plaintiffs charge that even so it is a violation of the law. Statutory interpretation necessitates that the intent of Congress is controlling in reading any statute, and that the plain and obvious meaning is the safest and most clearly expresses legislative intent. At the outset it should be pointed out that in making their declaration of national environmental policy Congress provided that it is the continuing policy of the federal government to "use all practical means and measures" to carry out the purposes of the Act. 42 U.S.C. § 4331.

The cases which have considered whether or not the agency may delegate its duty under the NEPA have discussed the function of the Act. Section 102 of NEPA mandates a particular sort of careful and informed decision making process and creates judicially enforceable duties. Calvert Cliffs' Coord. Com. v. United States A. E. Com'n, 146 U.S. App.D.C. 33, 449 F.2d 1109, 1115 (1971). The same court has held that "the word `accompany' in Section 102(2)(C) must not be read so narrowly as to make the Act ludicrous. It must, rather, be read to indicate a congressional intent that environmental factors, as compiled in the `detailed statement,' be considered through agency review processes." Calvert Cliffs', supra, 1117, 1118. The court goes on to say:

"Beyond Section 102(2)(C), NEPA requires that agencies consider the environmental impact of their actions `to the fullest extent possible.' . . . Compliance to the `fullest' possible extent would seem to demand that environmental issues be considered at every important stage in the decision making process concerning a particular action—at every stage where an overall balancing of environmental and nonenvironmental factors is appropriate and where alterations might be made in the proposed action to minimize environmental costs." p. 1118.

Preparation by the HA does not prevent this type of consideration. There is no allegation that the report is not available at every important stage of the decision making process or that the report is not prepared pursuant to the mandate in the statutes and the regulations of the Council on Environmental Quality, except that it has not been prepared by the FHWA itself. But the parties seeking administrative action are the most obvious and important source of information and expertise. "Although the agency has the duty to develop a record justifying its decisions, much of the burden of producing the relevant studies and reports is rightfully shifted to the applicant." 24 Rutgers L.Rev. 230, 258 (1970).

PPM 90-1 requires that a representative of the FHWA division office shall indicate his review and adoption of the draft environmental statement by signing and dating before it is released for comment. At least one court has indicated that there is a danger in allowing an interested party to prepare the EIS which is utilized in the agency process. Greene County Planning Board v. Federal Power Com'n, 455 F.2d 412, 420 (2 Cir., 1972). Affirmed 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). The Greene case recognized the value to the court of the interpretation of CEQ as to the purpose of the NEPA and then appears to contradict that interpretation. The case states:

"Although the Guidelines are merely advisory and the Council on Environmental Quality has no authority to prescribe regulations governing compliance with NEPA, we would not lightly suggest that the Council, entrusted with the

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