Sierra Club v. Volpe

• Citation: 351 F. Supp. 1002
• Decision Date: 06 December 1972
• Docket Number: No. C-72-919.,C-72-919.
• Parties: SIERRA CLUB, a non-profit corporation, et al., Plaintiffs, v. John A. VOLPE, Secretary of Transportation, Individually and in his official capacity, et al., Defendants.
• Court: U.S. District Court — Northern District of California

351 F. Supp. 1002

SIERRA CLUB, a non-profit corporation, et al., Plaintiffs, v. John A. VOLPE, Secretary of Transportation, Individually and in his official capacity, et al., Defendants.

No. C-72-919.

United States District Court, N. D. California.

December 6, 1972.

Charles D. Chalmers, of Petty, Andrews, Olsen, Tufts, Jackson & Sander, San Francisco, Cal., for plaintiffs.

Harry S. Fenton, Sacramento, Cal., John P. Horgan, San Francisco, Cal., Kingsly T. Hoegstedt, Sacramento, Cal., Norval Fairman, Robert R. Buell, and Donald M. Velasco, San Francisco, Cal., for defendants.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

Plaintiff, Sierra Club, and other conservation organizations, together with seven individuals, who allege that they reside in the general area of the freeway project hereinafter mentioned, bring this suit to restrain federal and California highway officials from proceeding with construction of the so-called Devil's Slide By-Pass Freeway project on the ground of failure to comply, as to the federal defendants, with the provisions of the Federal Aid Highway Act, 23 U. S.C. § 128, as amended, and the National Environmental Policy Act, 42 U.S.C. §§ 4321-4347, hereinafter referred to as "NEPA", and, as to the state defendant via pendent jurisdiction, with the California Environmental Quality Act, Cal. Public Resources Code §§ 21000-21151, hereinafter referred to as "CEQA".

BACKGROUND OF THE PROJECT

The Devil's Slide By-Pass project, hereinafter sometimes referred to as "the project", consists of a planned four lane freeway between the southerly limit of Pacifica, San Mateo County, California, on the north, and running thence southerly 6.3 miles to the Half Moon Bay Airport.

The project is part of a federal aid primary highway route, i. e., State Highway # 1, which runs from San Francisco on the north, thence southerly to the city of Half Moon Bay and points farther south.

Some time prior to 1966, Highway # 1, northerly of the project, was reconstructed with federal aid as a six lane freeway from San Francisco to within about three miles of the southerly limit of Pacifica; the remaining three mile section through Pacifica to its southerly limit is still plain surface road as to which no freeway construction is presently planned.

Highway # 1, southerly of the project, i. e., from Half Moon Bay Airport to the City of Half Moon Bay, consists of thirteen miles of plain surface, two lane road which is presently under study, including preparation of an environmental impact statement, for future freeway re-construction with federal funding but, according to the state and federal defendants herein, as a separate project. No further freeway construction on Highway # 1, south of the city of Half Moon Bay, is now under consideration.

In addition to being a freeway reconstruction, the Devil's Slide By Pass is also intended, as its name implies, as a by pass of the present section of Highway #1 that runs along the Devil's Slide coast line; the by pass reroutes that section through the San Pedro coastal mountains in order to avoid what has long been considered to be an unstable and dangerous condition of the Devil's Slide terrain.

This project was first conceived in 1958, and has been ever since in the planning stage. In August, 1960, a public hearing was held at Pacifica, apparently to comply with the Federal Highway Act, 23 U.S.C. § 128, which then required a public hearing by the state concerning the economic effects of the highway location prior to any federal funding; in December, 1960, the California Highway Commission adopted the route for the project and in September, 1963, a San Mateo County—State of California contract was entered into; in September, 1966, the federal highway agency granted location approval.

On August 23, 1968, Federal Aid Highway Act, 23 U.S.C. § 128, which up to that time had required public hearing concerning only economic effects of a highway location as a condition of federal funding, was amended to provide in effect that a state agency, submitting plans for federal highway projects, must certify that it had held, or afforded opportunity for, public hearings and had considered, not only the economic effects of a location, but also its "social effects" and its "impact on the environment". (Emphasis added.)

On January 14, 1969, (about four months after the effective date of the amendment to § 128) FHA issued a Policy and Procedure Memorandum, PPM No. 20-8 (23 CFR App. A). That Memorandum, which was primarily designed to implement the § 128 Amendment, required certification by the state of public hearings concerning, not only location, but also the design of proposed highway projects and provided that, as to projects which had not received FHA design approval by January 14, 1969, (the date of the Memorandum), compliance with the design public hearing provision of the Memorandum would be required unless the state had requested FHA design approval within three years after the date of the state's original location public hearing (in our case the "location" public hearing had been held in August, 1960); but, that, as to projects which had received FHA design approval prior to January 14, 1969, then state certification of design public hearings, otherwise required by the Memorandum, would not be necessary.

It is admitted that no public hearings, within the meaning of § 128, as amended, have been held by the state since the route or location public hearing at Pacifica in August, 1960.

Both federal and state defendants contend, however, that the record in the pending case shows a grant of FHA "design approval" for the Devil's Slide project by October, 1968, i. e., about two months after the effective date of the § 128 amendment but also about two months before January 14, 1969, (the cut off date fixed by PPM 20-8) and that, therefore, no state certification of design public hearings was necessary in the case of the Devil's Slide project.

Plaintiffs, however, strongly dispute any FHA design approval in October, 1968, arguing that FHA took no such action at that time and quoting state defendant's division engineer as, in effect, admitting that no such design approval could have been given until at least August 21, 1969—about eight months after PPM 20-8. Plaintiffs also point out the absence of any showing by defendants of any request by the state for FHA design approval within three years of the original location approval of August, 1960.

On January 1, 1970, the National Environmental Policy Act of 1969, 42 U.S. C. § 4331(b) et seq. ("NEPA") became effective, requiring even more exacting procedures concerning environmental impact than had been required by the August 23, 1968, amendment to § 128 of the Highway Act.

Section 4332 of NEPA provides that the Congress authorizes and directs that "to the fullest extent possible" all agencies of the federal government "shall . . . (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented."

On May 11, 1970, the President's Council on Environmental Quality (CEQ), created by the Act, issued Interim Guidelines (35 Fed.Reg. 7390, 5/12/70), interpreting and implementing NEPA and providing that "to the fullest extent possible", its requirements of § 4332(B) should be applied to federal actions "even though they arise from projects or programs initiated prior to NEPA", and adding that "even when it is not practicable to reassess the basic course of action, it is still important that further incremental major actions be shaped so as to minimize adverse environmental consequences. It is also important in further action that account be taken of environmental consequences not fully evaluated at the outset of the project or program."

On November 24, 1970, FHA issued its own Interim Guidelines providing in effect that NEPA compliance would not be required on projects which had received "design approval" prior to February 1, 1971, (a cut off date about one year after the effective date of NEPA and about eight months after the Interim CEQ Guidelines) but that in lieu of such compliance the state must merely "review with the federal agency" certain classes of projects, e. g. new locations, which had been accorded design approval before January 1, 1971 (a cut off date one year after NEPA).

On March 23, 1971, an agency review of the project in question was made; an Environmental Fact Sheet was prepared to document that review by state and FHA officials, apparently pursuant to the "agency review" provision of FHA's Interim Guidelines of November 24, 1970; that Fact Sheet was approved by the FHA division engineer on April 28, 1971.

On April 23, 1971, Final CEQ Guidelines (36 Fed.Reg., p. 7724) were issued restating the Interim CEQ Guidelines of May 11, 1970, already noted above, with the one change that the language of the Interim Guidelines "to the fullest extent possible" was changed to read "to the maximum extent possible".

On August 24, 1971, Final FHA Guidelines, PPM 90-1 (23 CFR Pt. I App. A, 1970) were issued requiring NEPA compliance on projects receiving design approval after February 1, 1971, but not on projects receiving design approval between January 1, 1970 (the date of NEPA's enactment) and February 1, 1971, if, as to the latter, the federal division engineer determined that the project had been...