Petition — Coleman v. Conservation Society of Southern Vermont, Inc.

Supreme Court brief1975

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What actually matters in this document.

Text

No 4-141

Iu the Supreme Court of the United States

QCTOBER TERM, 1974

WILLIAM T. COLEMAN, JR., SECRETARY OF

TRANSPORTATION, ET AL., PETITIONERS

VU.

THE CONSERVATION SOCIETY OF SOUTHERN

VERMONT, INC., ET AL.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ROBERT H. BoRK,

Solicitor General,

WALLACE H. JOHNSON,

Assistant Attorney General,

FRANK H. EASTERBROOK,

Assistant to the Solicitor General,

EDMUND B. CLARK,

KATHRYN A. OBERLY,

Attorneys,

Department of Justice,

Washington, D. C. 20530.

SS SE

, 2

INDEX

Page

Opinions below sania 2

Jurisdiction

| Questions presented 2

| Statute and regulations involved 3

| Statement ) 3

teasons for granting the writ 11

| Conclusion 23

| Appendix A la

| Appendix B 29a

Appendix C 44a

Appendix D Sla

Appendix E 83a

Appendix F 117a

CITATIONS

Cases:

Appalachian Mountain Club v. Brinegar,

D.N.H., Civ. No. 74-208, decided March

25, 1975 13

Calvert Cliffs’ Coordinating Committee v.

Atomic Energy Commission, 449 F.2d

1109 15

ee a

Cases—Continued

Citizens Environmental Council v. Volpe,

484 F.2d 870

Daly v. Volpe, C.A. 9, No. 74-2566, de-

cided March 20, 1975

Environmental Defense Fund v. Corps of

Engineers, 470 F.2d 289, certiorari de-

nied, 412 U.S. 931 ;

Finish Allatoona’s Interstate Right, Ine.

v. Brinegar, 484 F.2d 638, affirming

355 F. Supp. 933

Greene County Planning Board vy. Fed-

eral Power Commission, 455 F.2d 412,

certiorari denied, 409 US. =a

Indian Lookout Alliance vy. Volpe, 484 F.

2d 11 FA

Iowa Citizens for Environmental Quality,

Inc. v. Volpe, 487 F.2d 849

James River and Kanawha Canal Parks,

Inc. v. Richmond Metropolitan Author-

ity, 481 F.2d 1280, affirming 359 F.

Supp. 611 |

Life of the Land vy. Brinegar, 485 F.2d

460 .

Movement Against Destruction \ v. Volpe,

500 F.2d 29, affirming 361 F. Supp.

Named Individual Members of. the San

Antonio Conservation Society v. Texas

Highway Department, 446 F.2d 1013

Scientists’ Institute for Public Informa-

tion, Inc. v. Atomic Energy Commis-

sion, 481 F.2d 1079

Sierra Club v. Callaway (Trinity River),

499 F.2d 982

Page

14,18

Ill

Cases—Continued Page

Sierva Club v. Lynn, 502 F.2d 43... 18-14

Sierra Club v. Stamm, 507 F.2d 788... 18

Steubing v. Brinegar, 511 F.2d 489 10

Swain v. Brinegar, C.A. 7, No. 74-1625,

decided April 29, 1975 ae 13

Trafficante v. Metropolitan Life Ins. Co.,

409 U.S. 205 16

Trout Unlimited v. Morton, 509° F.2d

1276 inkeeaeseitsitinaties ——e

Statutes, regulations and rules:

Department of Transportation Act of

1966, Section 4(f), 49 U.S.C. 1653(f) 7

Intergovernmental Cooperation Act of

1968, 42 U.S.C. 4231(b) 10

National Environmental Policy Act of

1969, 83 Stat. 853, 42 U.S.C. 4332 et

seq.: alee a ane 3

Section 102 _.14,117a

Section 102(2) (A) mes 20

Section 102(2) (B) ma 20

Section 102(2)(C) a ......2, 117a

Section 102(2)(D) 20, 118a

40 C.F.R. 1500.7(¢) 0 15, 118 a

Miscellaneous:

Fifth Annual Report of the Council on

Environmental Quality (1974) ...... 11,15

H.R. 3130, 94th Cong., lst Sess. (1975) 12

H.R. 3787, 94th Cong., 1st Sess. (1975) 12

H.R. Rep. No. 94-111, 94th Cong., 1st

Sess. (Parts 1 and 2) (1975) 12

Iu the Supreme Court of the United States

OCTOBER TERM, 1974

No.

WILLIAM T. COLEMAN, JR., SECRETARY OF

TRANSPORTATION, ET AL., PETITIONERS

Vv.

THE CONSERVATION SOCIETY OF SOUTHERN

VERMONT, INC., ET AL.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The Solicitor General, on behalf of the Secretary

of Transportation and David B. Kelley, Division En-

gineer of the Federal Highway Administration, peti-

tions for a writ of certiorari to review the judg-

ment of the United States Court of Appeals for the

Second Circuit.’

‘Respondents are: The Conservation Society of Southern

Vermont, Inc.; Bernard G. Winslow, Leon R. Eldred, Antiss

H. Eldred, and Wallace E. Van Keuren, individually and as

members of the Conservation Society; Lawrence Wasco and

Ruth Wasco, individually; H. James Wallace, Frank A. Balch,

Henry O. Angell, Robert S. Bigelow and H. Gordon Smith, as

(1)

OPINIONS BELOW

The opinion of the court of appeals (App. A, in-

fra, pp. la-28a) is reported at 508 F.2d 927. The

opinions of the district court are reported at 343 F.

Supp. 761 (App. B, infra, pp. 29a-43a) and 362 F.

Supp. 627 (App. C, infra, pp. 44a-80a).

JURISDICTION

The judgment of the court of appeals (App. D,

infra, pp. 8la-82a) was entered on December 11,

1974. By order of March 4, 1975, Mr. Justice Mar-

shall extended the time for filing a petition for a

writ of certiorari to and including May 10, 1975.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

Section 102(2)(C) of the National Environmental

Policy Act of 1969, 83 Stat. 853, 42 U.S.C. 4332(2)

(C), provides thet all agencies of the federal gov-

ernment shall include in every recommendation or

report on “major Federal actions significantly af-

fecting the quality of the human environment” a de-

tailed statement “by the responsible official” on the

environmental impact of the proposed action. The

questions presented are:

members of the Vermont State Highway Board; and John T.

Gray, Vermont’s Commissioner of Highways. The state re-

spondents supported the federa! parties below.

1. Whether the statement can be prepared by state

officials under the supervision of the responsible fed-

eral official, if the responsible official adopts and pub-

lishes a substantively adequate statement as his own.

2. Whether the statement to be issued must in-

clude consideration of highway segments not yet

planned by any state official and not yet proposed to

or approved by any federal official.

STATUTE AND REGULATIONS INVOLVED

The relevant portions of the National Environ-

mental Policy Act of 1969, the Guidelines of the

Council of Environmental Quality, and the imple-

menting policy statements and regulations of the

Federal Highway Administration are set out in Ap-

pendix F, infra, pp. 117a-146a.

STATEMENT

United States Route 7 (“Route 7”) is the major

north-south highway in the State of Vermont. As

the population of Vermont has grown and the high-

way has become older, improvements have become nec-

essary. The district court found that the “design

of Route 1 is obsolete for much of its length, * * *

being winding, narrow, hilly, with short sighting

distances, relatively sharp curves, limited to two

lanes, and presenting hazards to the traveling pub-

lie as well as the local populace” (App. B, infra,

p. 31a). Approximately “90 per cent of the present

highway is in the bad to poor safety category” (App.

C, infra, p. 62a).

Improvement of Route 7 has been discussed and

planned for more than 17 years. When the National

Environmental Policy Act of 1969 (“NEPA”) be-

came effective on January 1, 1970, the design of

many improvements had been substantially completed.

One of the proposed improvements is at issue in this

case. It calls for a new two lane highway (the “seg-

ment”) to be built between Bennington and Man-

chester, Vermont, a distance of about 20 miles. The

segment will be financed in part by federal money,

and therefore must be approved by the Federal High-

way Administration (the “Administration”), an

agency within the Department of Transportation.

1. Because the segment had been planned and de-

signed prior to the passage of N EPA, local and fed-

eral officials continued their preparations without

preparing an environmental impact statement. On

May 4, 1972, some of the respondents brought an

action seeking an injunction against additional prep-

aration or construction until an impact statement

had been prepared. The district court concluded

that, “at least where * * * the project has not be-

come so final in engineering detail as to be ready to

submit to bid” on the effective date of NEPA, an

impact statement would be required before a project

could continue (App. B, infra, p. 41a). According-

ly, on October 26, 1972, the district court enjoined

further action pending preparation of an impact

statement.

2. The Administration has established procedures

for fulfilling the requirements of NEPA. It initially

set out this procedure in Policy and Procedure Memo-

randum (PPM) 90-1 (see App. F, infra, pp. 119a-

127a), which requires the highway authority of the

state seeking federal financing to prepare a draft

environmental impact statement.’ This draft is pre-

pared in consultation with federal officials, and must

incorporate all of the relevant environmental consid-

erations. Once the draft is completed, it is circulated

for comment. The Administration reviews the draft

impact statement at both the local and regional! level

and makes suggestions for improvement; if the state-

ment is unsatisfactory, the Administration wil] re-

ject it and order the preparation of another.

The state highway authority then must revise the

draft impact statement and prepare a final impact

statement. This document, too, receives scrutiny by

the Administration, this time at the local, regional .

and national levels. If the statement adequately con-

siders and evaluates the environmental issues, the

Administration approves it and adopts it as its own

impact statement. After the Administration has ap-

proved the impact statement, it is forwarded to the

Assistant Secretary of Transportation for Environ-

ment, Safety and Consumer Affairs, who also must

approve it. It then becomes, and is treated for all

purposes as, a federal document.

* PPM 90-1 has been superceded by regulations effective De-

cember 2, 1974 (see App. F, infra, pp. 128a-146a). These new

regulations, although more detailed than PPM 90-1, establish

procedures functionally similar to those in PPM 90-1, and

their application would present issues identical to those in

this case.

After the district court’s decision in October 1972,

the prescribed procedure was followed in this case.

An engineering coordinator of the local office of the

Administration “maintained frequent contact” (App.

C, infra, p. 47a) with the Vermont Highway Depart-

ment during the preparation of the draft impact

statement. On at least one occasion the Administra-

tion’s division engineer went on a field trip with

state officials and environmental consultants, and they

discussed the environmental considerations involved

in construction (ibid.).

The draft environmental impact statement pre-

pared by the Vermont Highway Department was

“submitted to the public for comment and to the divi-

sion office of [the Administration] in Montpelier,

Vermont, and the regional office in Delmar, New

York” (ibid.). At the regional office the statement

was examined and assessed by the director of the Of-

fice of Environment and Design and by a Regional

Task Force, which included “bridge and construction

engineers, a hydraulics engineer, a landscape archi-

tect, a ‘regional relocation specialist,’ a regional ur-

ban planner, and the Deputy Regional Federal High-

way Administrator” (App. C, infra, pp. 47a-48a).

After this consideration the local office of the Ad-

ministration wrote to the Vermont Highway Depart-

ment, making three specific suggestions for addi-

tional evaluations of environmental considerations

(id. at 48a).

All three of the suggestions were accepted by the

Vermont planners, and additional sections incorpo-

rating them were written for the final impact state-

ment. When that final statement was issued, it was

reviewed as provided in PPM 90-1 at the local, re-

gional and national offices, was approved without ad-

ditional change, and was issued as a federal docu-

ment,

3. On March 20, 1973, the state and federal

parties jointly moved to dissolve the previously-en-

tered injunction. The court thoroughly scrutinized

the final impact statement and concluded that, al-

though there was room for some improvement, it

represented a good faith assessment of al] pertinent

environmental considerations, and was adequate to

meet the requirements of NEPA (id. at 54a-63a).

Nevertheless, for two separate reasons, the court de-

clined to allow the project to proceed.’

The court held that it was impermissible to allow

state officials to prepare a draft impact statement.

The court believed that an impact statement pre-

pared by state officials “is bound to be ‘self-serving’ ”

(id. at 50a) and that the Administration had a

“duty of preparation” that it could not “delegat[e]”

to state officials (id. at 51a) because NEPA states

that “the responsible official” shall issue the state-

‘The district court also concluded that federal officials

had not adequately complied with Section 4(f) of the Depart-

ment of Transportation Act of 1966, 49 U.S.C. 1653 (f), which

declares that the Secretary of Transportation shall not ap-

prove construction across publicly owned park or recreation

lands unless there is “no feasible and prudent alternative.”

This holding was not appealed, and steps have been taken to

comply with the court’s decision.

ment. Under the district court’s view, it was im-

material that the Administration reviewed the state-

ment and ultimately adopted it as a federal document.

The district court’s second reason for disapproving

the impact statement was that the statement did not

consider the potential environmental effects of build-

ing a limited access superhighway over the entire

280 mile ‘‘Route 7 corridor” in Connecticut, Massa-

chusetts and Vermont (essentially stretching from

New York to the Canadian border), but had instead

confined its analysis to the 20 miles of two-lane high-

way actually proposed for construction. The court

concluded that the segment between Bennington and

Manchester was badly needed and had independent

utility even if no other segment were built (App. C,

infra, p. 68a); that there was no overall plan to

build a highway in the Route 7 corridor (id. at 63a) ;

that Massachusetts and Connecticut were not even

considering additional superhighway construction

(ibid.) ; and that “there is no overall federal plan for

improvement of the Route 7 corridor” (id. at 64a).

The court believed, however, that “the three states’

highway departments are looking toward this end

as possible of accomplishment” (ibid.); that con-

struction of any segments would increase traffic and

create pressure for the construction of additional

segments (ibid.); and that it would be desirable for

federal officials to take an overview of the effects of

construction of a highway through the corridor. The

court therefore held that “the filing of an overall

[impact statement] by the [Administration] in re-

spect to the entire Route 7 corridor” was a precon-

dition to construction of the segment between Man-

chester and Bennington (id. at 68a).

4. The court of appeals affirmed.* It agreed with

the district court that state preparation of an impact

statement is undesirable, and that it would presume

that such preparation would be biased (App. A,

infra, p. 9a). It also held that the responsible fed-

eral official had a nondelegable duty to prepare the

impact statement as well as to issue it. Citing Greene

County Planning Board v. Federal Power Commis-

sion, 455 F.2d 412 (C.A. 2), certiorari denied, 409

U.S. 849, the court held that “[n]othing short of

‘genuine’ federal preparation’ of the impact state-

ment would be acceptable (id. at 10a-lla). The

federal preparation envisaged by the court appar-

ently must be total since the court sought to render

“unnecessary” (id. at 10a) any further litigation

over the adequacy of federal participation in the im-

pact statement by adopting an “unambiguous rule”

(ibid.). In a case consolidated for disposition,’ the

court held that even “searching” review of a draft

* No appeai was taken from the district court’s conclusion

that the impact statement adequately considered the environ-

mental effects of building the segment. See App. A, infra,

p. 3a, n. 6.

° The instant case was consolidated on appeal with Vermont

Natural Resources Council, Inc. Vv. Brinegar, No. 74-2168. The

district court there had allowed construction to go forward.

The court of appeals held that NEPA had not been complied

with, but affirmed the denial of equitable relief. We do not

seek review of that decision.

impact statement to which “federal agency contri-

butions * * * were found to be substantial” is inade-

quate (id. at 13a, n. 26). As another panel of the

Second Circuit described the holding below, “the re-

sponsible federal agency has a ‘primary and non-

delegable responsibility’ to make its own comprehen-

sive and objective evaluation of the environmental

impact of a project constituting a major federal ac-

tion” (Steubing v. Brinegar, 511 F.2d 489, 496 (C.A.

2)).

The court of appeals also held that the impact

statement must cover “transportation systems in the

entire 280 mile Route 7 corridor” (App. A, infra, p.

15a). It accepted the district court’s finding that

“no plan presently exists” (ibid.) for constructing a

superhighway in the area and that the segment be-

tween Manchester and Bennington has “local utility”

(id. at 19a). Nevertheless, it concluded, because “an

ultimate Route 7 superhighway is the expectation of

state agencies with the knowledge and cooperation

of the federal government” (id. at l6a), the envi-

ronmental effects of such a potential system must be

studied before any part of it can be built.’

° The district court predicated its holding, in part, upon

the Intergovernmental Cooperation Act of 1968, 42 U.S.C.

4231(b). The court of appeals did not consider this alterna-

tive ground in light of its NEPA conclusion. See App. A,

infra, p. 20a, n. 44,

REASONS FOR GRANTING THE WRIT

This case presents related questions concerning the

interpretation of NEPA, a major statute applicable

to every federal agency and action having a signifi-

cant effect upon the environment. Although the ques-

tions presented in this case deal with highway con-

struction, their resolution may affect the procedures

used by all federal agencies. Even within their nar-

rowest confines the questions presented are of con-

siderable importance: we have been informed by the

Department of Transportation and the Council on

Environmental Quality that approximately one third

of all impact statements issued by all federal agen-

cies concern highway construction. See Fifth Annual

Report of the Council on Environmental Quality 389

(1974).

The responsible federal official must make two

fundamental decisions befere beginning every envi-

ronmental investigation: who has the initial obli-

gation to prepare the document, and what subjects

the impact statement will cover. The decision of the

court of appeals has introduced considerable uncer-

tainty into this process. Because of the conflict among

the circuits (which we discuss infra), federal officials

must perform their duties in different ways in dif-

ferent parts of the country, a prospect that is par-

ticularly undesirable because not only NEPA but

also the federal highway program were designed as

national programs of uniform applicability. The con-

flict among the circuits—and the inevitable uncer-

tainty in predicting how other circuits will resolve

similar questions—places federal administrators in

the position of attempting to comply with NEPA

only to be told, at a later date, that their understand-

ing of the statute was incorrect and they must start

again.

The “start again” command in this case is a literal

one. The court of appeals has directed the Adminis-

tration to make an independent environmental inves-

tigation of not only the Manchester-Bennington seg-

ment but also the entire “Route 7 corridor.” This

new assessment, which will be in addition to the pre-

vious and (the district court held) adequate assess-

ment, will take substantial time to complete, circu-

late for comment, revise and recirculate. At least

one construction season will be lost as a result; and

the delay in construction will in turn increase ulti-

mate cost. In the jurisdictions affected, thousands of

jobs throughout many states will be lost at the height

of the current recession.’ This pattern of delay will

repeat itself in any other circuit that adopts the posi-

tion of the court below, and will become endemic be-

cause it will expand from one to two the number of

’ Primarily because of these problems a number of bills were

introduced in Congress to overturn the result below. H.R.

3130 provides that any impact statement issued by a state

official under the supervision of a federal official shall not be

considered inadequate on the ground that it was not prepared

by a federal official. H.R. 3787 makes the same provision, but

is limited to highway projects in the Second Circuit. See H.R.

Rep. No. 94-111, 94th Cong., 1st Sess. (Parts 1 and 2) (1975).

Both bills passed the House on April 21, 1975 and are under

study in the Senate.

“rounds” of environmental consideration required

before any project may be approved. Each round is

both costly and lengthy. We submit that a single

“round” of adequate environmental consideration, on

a properly defined project, is all that NEPA requires.

Because of the importance of the issue and the con-

flict among the circuits, we believe that both issues

warrant consideration by this Court.

1, The Court of Appeals for the Second Circuit

has held that federal officials must independently

analyze the environmental issues in state highway

construction and must write and issue an impact

study of their own. The court stated that although

the Administration need not ignore any previous ef-

forts of the state authorities, it could not “delegate”

to state authorities any part of the task of research

and writing. The decision has been so understood,

and followed, by two other courts: the Seventh Cir-

cuit (Swain v. Brinegar, C.A. 7, No. 74-1625, de-

cided April 29, 1975, reproduced in App. E, infra,

pp. 83a-116a, at pp. 103a-llla) and the District of

New Hampshire (Appalachian Mountain Club vy.

Brinegar, D.N.H., Civ. No. 74-208, decided March 25,

1975). As the court below acknowledged (App. A,

infra, p. 2a, n. 3), the courts of appeals for the

Fourth, Fifth, Eighth, Ninth and Tenth Circuits have

decided, to the contrary, that state agencies may pre-

pare impact statements under federal supervision, if

the statement is prepared with the guidance and par-

ticipation of the federal agency and is analyzed,

adopted and issued as a federal document. See Sierra

Club v. Lynn, 502 F.2d 43, 59 (C.A. 5); Movement

Against Destruction v. Volpe, 590 F.2d 29 (C.A. 4),

affirming 361 F. Supp. 1360, 1393 (D. Md.); Jowa

Citizens for Environmental Quality, Inc. v. Volpe,

487 F.2d 849 (C.A. 8) (expressly approving PPM

90-1); Life of the Land v. Brinegar, 485 F.2d 460

(C.A. 9); Citizens Environmental Council v. Volpe,

484 F.2d 870 (C.A. 10) (sustaining a procedure

identical to that used in this case) ; Finish Allatoona’s

Interstate Right, Inc. v. Brinegar, 484 F.2d 638

(C.A. 5), affirming 355 F. Supp. 933 (N.D. Ga.).

We submit that the majority position, rather than

the view of the Second and Seventh circuits, is sup-

ported by the language and purposes of NEPA. Sec-

tion 102 of NEPA requires “all agencies” to “in-

clude in every recommendation” for major federal

action “a detailed statement by the responsible offi-

cial” concerning potential environmental effects of the

proposal. Although it clearly is a federal task for the

“responsible official” to see to it that such a “detailed

statement” is prepared and included with the recom-

mendation, NEPA does not require any specified in-

dividual or agency physically to prepare the state-

ment. Issuance of an adequate statement is a federal

responsibility but it, like many other responsibilities

ultimately resting with particular officials, can be as-

signed in the first instance to others more intimately

acquainted with the project and more advantageously

placed to collect and assess the requisite information.

One purpose of the impact statement is to alert

both the public and the decisionmakers themselves to

the potential environmental effects of their decisions,

so that these effects can be taken into account. See

generally Calvert Cliffs’ Coordinating Committee v.

Atomic Energy Commission, 449 F.2d 1109 (C.A.

D.C.). NEPA is an environmental “full disclosure”

statute (Environmental Defense Fund v. Corps of

Engineers, 470 F.2d 289, 290 (C.A. 8), certiorari

denied, 412 U.S. 931). But these commendable and

altogether necessary goals are served whatever the

source of the information, so long as the information

is accurate and sufficiently detailed (as the district

court concluded that it was in this case).

Both the Department of Transportation (through

PPM 90-1) and the Council on Environmental Qual-

ity have interpreted NEPA as permitting substantial

state participation in the preparation of an impact

statement. The Guidelines of the Council (40 C.F.R.

1500.7(c); App. F, infra, p. 118a), provide that an

agency can rely upon applicants for environmental

assessment if it makes its own environmental analy-

sis and “take[s] responsibility for the scope and con-

tent of draft and final environmental statements.”

That is exactly what the Administration did here: it

provided guidance and consultation to state officials

on their environmental assessment, independently

analyzed the statement submitted, and took full re-

sponsibility for the contents of the final document.

The Council’s most recent Annual Report stated: *

‘Fifth Annual Report of the Council on Environmental

Quality 397-398 (1974).

CEQ has traditionally not objected to delega-

tion of the preparation of a statement in those

instances where the Federal agency has main-

tained responsibility for the objectivity and ade-

quacy of the statement. Efficient use of re-

sources suggests that the party closest to the

development of a project should engage in at

least its preliminary environmental analysis.

Where this party is a state or local government,

the responsibility of the Federal agency is to

ensure that environmental considerations are

meaningfully integrated into the project’s design.

This requires at least some review of the proj-

ect and the impact statement by the agency. But

it does not require an agency in every case to

engage in an independent preparation of the

impact statement.

The interpretation of NEPA in PPM 90-1 and by

the Council is reasonable and entitled to deference.

Trafficante v. Metropolitan Life Ins. Co., 409 US.

205, 210. But what is more compelling is that it is

altogether sensible to assign the task of impact state-

ment preparation to state officials. State officials

plan highways in the first instance: the location, size

and design of highways are matters of state choice.

State officials have better access to information and

control over the alternatives through which environ-

mental damage may be minimized. The Administra-

tion does not direct state highway authorities to build

or not to build particular roads or to locate them in

particular areas. Federal “approval” is for the pur-

pose of federal funding of state proposals and nothing

more. Because of this allocation of functions, state

2 ee ee eee =

officials “propose” to federal officials a fully-designed

highway. In order for NEPA to fulfill its purpose,

the impact statement to which it refers should be

made at the same time as that proposal and should

“accompany” the state’s proposal through the federal

project review procedures. Once this stage has been

reached the purpose of the impact statement require-

ment—full environmental investigation and disclo-

sure so that all involved will know and consider envi-

ronmental effects—has been accomplished.

This does not mean that federal officials have ab-

dicated their responsibility. Because federal funding

is involved, the ultimate responsibility is federal. But

that responsibility is satisfied when (as here) federal

officials participate in and guide the preparation of

the impact statement, thoroughly review it at three

levels, analyze it, and adopt and publish the state-

ment as their own. They stand fully responsible for

any flaws or deficiencies in the estimates or scope.

The court below thought that state officials would

prepare a biased statement. But federal officials, like

state officials, have a programmatic “interest” in

highway construction; both state and federal officials

are interested in building and preserving an adequate

system of transportation. Neither set of officials

has a personal stake in the proposals and there is

no reason to believe one will be less objective than

the other. Even assuming, however, that state offi-

e‘als might color their presentation more than would

federal officials, the comprehensive review procedures

established by the Department of Transportation pro-

tect against that possibility. The federal regulations

set out in some detail the considerations an impact

statement must assess; the statement in this case

did so. Indeed, after a full trial the district court

concluded that this impact statement was substan-

tively adequate. If it were biased, the Administra-

tion would be responsible and the project could not

go forward. But the proper way to alleviate the

problem of bias is to detect and correct it as it arises.

There is no need to institute a costly second round

of environmental preparation, which will delay every

project, merely in order to ameliorate the conse-

quences of bias that may never occur.

2. The court of appeals’ holding that the Ad-

ministration must prepare an impact statement on

the entire 280 mile “Route 7 corridor” also warrants

review. The Second Circuit’s decision here stands

alone, and conflicts with decisions in at least five

other circuits.’ See Trout Unlimited v. Morton, 509

F.2d 1276 (C.A. 9); Daly v. Volpe, C.A. 9, No. 74-

2566, decided March 20, 1975; Sierra Club v. Stamm,

507 F.2d 788 (C.A. 10); Sierra Club v. Callaway

(Trinity River), 499 F.2d 982 (C.A. 5); Indian

Lookout Alliance v. Volpe, 484 F.2d 11 (C.A. 8);

Movement Against Destruction v. Volpe, 500 F.2d

29 (C.A. 4), affirming 361 F. Supp. 1360, 1383 (D.

Md.); James River and Kanawha Canal Parks, Ince.

v. Richmond Metropolitan Authority, 481 F.2d 1280

(C.A. 4), affirming 359 F. Supp. 611 (E.D. Va.).

* A middle ground has been taken by the district court in

Appalachian Mountain Club, supra.

All of the other circuits to consider the matter have

held that, when a presently-planned project has in-

dependent utility, it may be assessed separately, even

though there is a potential for incorporation into a

larger project at some future time.

We do not argue that any segment, however small,

can be the proper focus of an impact statement.

PPM 90-1 properly provides that each segment should

be “as long as practicable to permit consideration

of environmental matters on a broad scope” (App. F,

infra, p. 121la). Highway projects cannot be frac-

tured into segments in order to avoid the responsi-

bility of assessing broader environmental concerns.

See Named Individual Members of the San Antonio

Conservation Society v. Texas H ighway Department,

446 F.2d 1013, 1023 (C.A. 5); Indian Lookout Al-

liance, supra, 484 F.2d at 18. Moreover, we believe

that the Administration has a responsibility to ex-

amine, in a timely fashion, the overall effects of a de-

cision to build a highway through a long “corridor.”

In order to make such an assessment a “program

impact statement” often will be both necessary and

appropriate,

The question presented by this case is, therefore,

one of degree. How short a segment is too short?

When is the appropriate time to make an overall en-

vironmental assessment of a proposal to build a

lengthy superhighway? Resolution of these questions,

which continually face lower courts in highway con-

struction cases, is difficult because two principles com-

pete for recognition. On the one hand, the overall

assessment must take place soon enough to be use-

ful, so that events do not acquire a momentum suf-

ficient to overcome late-developing realizations of

damage to the environment. The environmental con-

cerns must be injected soon enough to affect plan-

ning. On the other hand, assessment in a vacuum is

a waste of resources. In highway planning, environ-

mental considerations can be dominated by apparent-

ly small matters of degree, by the movement of the

road a mile to the east or west, by the width of a

median strip. Each of these factors, as well as the

critical factor of when the state desires to build the

road, is within the control of state officials and leg-

islatures. Until those officials have begun the process

of proposing and evaluating alternatives, there is

literally nothing for federal officials to assess. A

“study,” in the absence of alternative proposals, would

not be long-range planning and projection, but un-

guided speculation. For courts to require such as-

sessment would waste resources, and not only the re-

sources expended in the study but also those lost

because of delay in the construction of segments that

everyone agrees will be built regardless of the dis-

position of some larger project.

Sections 102(2)(A), (B), and (D) of NEPA

create environmental duties in addition to the impact

statement requirement. Federal agencies must always

“utilize a systematic, interdisciplinary approach”

to planning, develop methods to take environmental

concerns into consideration in all decisions, and study

alternatives to every recommended course of action.

But an impact statement itself is required only when

there is a “recommendation or report” on proposals

for “major Federal actions” significantly affecting

the environment. These two additional requirements

—"recommendation or report” and “major Federal

actions” —-provide guidance in solving the refractory

problem of the size of the project the impact state-

ment must assess,

The “federal” action involved in highway construc-

tion is not the planning or even the construction, but

the approval of the expenditure of federal money.

We suggest, therefore, that until a state proposes a

discrete segment of highway for consideration or con-

struction, there has been no proposal for major fed-

eral action significantly affecting the quality of the

environment. Without federal action, there is no

need for an impact statement. Applied to this case,

this principle indicates that the court of appeals

was incorrect. A superhighway through the “Route

7 corridor” is a gleam in the eye of planners of

three states. None cf the states has proposed any

federal. action; Connecticut and Massachusetts, with

their self-imposed bans on current superhighway con-

struction, are not even contemplating making such

proposals (App. C, infra, pp. 63a-64a). Nor is the

“Route 7 corridorg’ the location of a proposed inter-

state highway, in which federal involvement (in cor-

ridor approval and encouragement) would be argua-

bly more substantial. Because, at least at the mo-

ment, proposals or desires to create a superhighway

in the “Route 7 corridor’ are entirely state matter's,

NEPA does not require an impact statement.

Even assuming, however, that the current lack of

federal disapproval of the states’ hopes can be equat-

ed with “major Federal action,” we do not believe it

follows that an impact statement must necessarily

cover the entire 280 mile corridor. Other courts of

appeals have developed a rule of reason to delimit the

scope of required consideration and have held that if

the segment proposed for construction has an inde-

pendent utility—that is, if it would be useful and de-

sirable whether or not some larger project is com-

menced or continued—then it can be studied and

evaluated as an independent unit. This standard, too,

is met by the impact statement prepared in this case.

Both the district court (App. C, infra, p. 68a) and

the court of appeals (App. A, infra, p. 19a) concluded

that the Manchester-Bennington segment has inde-

pendent local utility." Once a court has reached this

conclusion, it should search no further. No valid in-

terest is served by allowing a local project of inde-

pendent utility, which will be constructed because of

that utility, to be held hostage by objections to a

‘’° For this reason, Scientists’ Institute For Public Infor-

mation, Inc. V. Atomic Energy Commission, 481 F.2d 1079

(C.A.D.C.), is inapposite. The court in that case required a

program impact statement for the breeder reactor program

to be issued while that program was in its earliest stages.

The early stages, however, were viewed as steps toward the

latter, and had no independent utility. Moreover, the “fed-

eral action” in the project was obvious. See Trout Unlimited,

supra, 509 F.2d at 1285, n. 13.

larger project that is yet but a vision and may never

be proposed, let alone built.

The ultimate deficiency in the approach of the court

of appeals is that it failed to come to grips with the

problem of timing; it assumed that because eventual

construction is a possibility, a complete impact state-

ment is required now. But “now” may be the wrong

time, both practically and within the confines of the

statute. The Court should take this opportunity to re-

solve the conflict among the circuits in regard to

this important area of environmental law.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted.

ROBERT H. BORK,

Solicitor General.

WALLACE H. JOHNSON,

Assistant Attorney General.

FRANK H. EASTERBROOK,

Assistant to the Solicitor General.

EDMUND B. CLARK,

KATHRYN A. OBERLY,

Attorneys.

May 1975.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 63, 288, 341—September Term, 1974

Dockets 73-2629, 74-2168, 73-2715

THE CONSERVATION SOCIETY OF SOUTHERN

VERMONT, INC., ET AL., APPELLEES

SECRETARY OF TRANSPORTATION, ET AL.,

APPELLANTS IN NO. 73-2629

THE VERMONT NATURAL RESOURCES COUNCIL, INC.

ET AL., APPELLANTS IN NO. 74-2168

’

Vv.

CLAUDE S. BRINEGAR, Secretary of Transportation,

ET AL., APPELLEES

TOWN OF ST. JOHNSBURY, INTERVENOR-APPELLEE

Argued Sept. 17, 1974

Decided Dec. 11, 1974

* ? . *

Before MOORE, MULLIGAN and ADAMS,®* Cir-

cuit Judges.

ADAMS, Circuit Judge:

Two cases are consolidated for appeal here because

they present an identical issue, namely, whether this

* Of the Third Circuit Court of Appeals, sitting by designa-

tion.

Circuit adheres to the holding of Greene County

Planning Board v. Federal Power Commission,’ that

an environmental impact statement (EIS) sufficient

to satisfy the requirements of the National Environ-

mental Policy Act* must be prepared by the respon-

sible federal agency. We reaffirm that Greene County

remains the law of this Circuit, and that the Federal

Highway Administration (FHWA) must formulate

and prepare its own impact statement to assess the

environmental effects of proposed federally-funded

highway projects.

I. Background.

Objections by environmental groups to proposed

Vermont highway construction have generated both

these cases, and the defendants in each include the

state and federal highway officials.*

*455 F.2d 412 (2d Cir.), cert. denied 409 U.S. 849, 93

S.Ct. 56, 34 L.Ed.2d 90 (1972).

* 42 U.S.C. § 4321 et seq. (1973) (NEPA).

* Contra, Life of the Land v. Brinegar, 485 F.2d 460 (9th

Cir. 1973), cert. denied, 416 U.S. 961, 94 S.Ct. 1979, 40 L.Ed.

2d 312 (1974); Citizens Environmental Council v. Volpe, 484

F.2d 870 (10th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct.

1935, 40 L.Ed.2d 286 (1974); Iowa Citizens for Environ-

mental Quality, Inc. v. Volpe, 487 F.2d 849 (8th Cir. 1973):

Finish Allatoona’s Interstate Right, Inc. v. Brinegar, 484

F.2d 638 (5th Cir. 1973); Movement Against Destruction v.

Volpe, 500 F.2d 29 (4th Cir. 1974).

* The Town of St. Johnsbury is the defendant-intervenor in

Vermont Natural Resources Council. In both cases briefs by

amici curiae have been filed and considered.

In Conservation Society of Southern Vermont v.

Secretary of Transportation, improvement was

planned for a twenty-mile segment of U. S. Route 7

between Bennington and Manchester, Vermont. The

district court, Circuit Judge Oakes sitting by desig-

nation, granted a permanent injunction in 1972

against proceeding with construction pending com-

pliance with the mandate of NEPA.’ In 1973, the

federal defendants, asserting procedural and substan-

tive compliance with NEPA, moved to dissolve the

Route 7 injunction. That motion was denied. Fed-

eral participation in preparation of the EIS, Judge

Oakes concluded, was scant, perfunctory and insuffi-

cient to satisfy the procedures of NEPA as that Act

was interpreted in Greene County.

Judge Oakes found that the ultimate conversion

of the Route 7 corridor into a divided limited-access

superhighway through Connecticut, Massachusetts

and Vermont is not the subject of an existing federal

plan. However, he found that it is nonetheless viewed

°343 F.Supp. 761 (D.Vt. 1972). The holding that there

had been noncompliance with § 4(f), Department of Trans-

portation Act of 1966, 49 U.S.C. § 1653(f), which served as a

basis for the original injunction, is not questioned in this

appeal.

* “There is no indication whatsoever that FHWA or any

of its employees conceived, wrote or even edited any sec-

tion of or passage in the EIS.” 362 F.Supp. 627, 632

(D.Vt. 1973).

In contrast to the procedural shortcoming of the EIS, the

district court found that substantively the EIS was adequate.

There is no appeal from this aspect of the district court

opinion.

by the respective state highway departments as a

goal “possible of accomplishment with legislative and

federal approval over a long-range period of time,

with federal approval taking place on an ad hoc basis

at the division engineer level.” 362 F.Supp. at 636.

The district court determined that the FHWA has

knowledge of each state’s planning process and acts

in a “partnership” with the officials of each state

respectively. Conversion of isolated portions of Route

7 into a superhighway, the court stated, will produce

greater traffic, thus creating synergistic pressure for

further construction te connect the newly expanded

sections.

The district court therefore held that before the

contemplated construction was undertaken, a com-

prehensive exploration into the environmental impact

of development alternatives through the 280 mile

corridor was called for. Judge Oakes concluded that

there was justification for his order both under

NEPA and under the Intergovernmental Cooperation

Act of 1968." This appeal by defendants followed.

In the companion case, Vermont Natural Resources

Council v. Brinegar, an appeal is taken by environ-

mentalist-plaintiffs from rulings of District Judge

Coffrin on several issues relating to a proposed con-

struction denominated the Sleepers River Inter-

change.* The interchange, to be located in St. Johns-

* 42 U.S.C. § 4231(b), (e) (1973).

*D.Vt., Civ. No. 74-149, order entered Aug. 16, 1974, opin-

ion filed Aug. 21, 1974 (Coffrin, J.). The district court in

effect bifurcated the proceedings to enable speedy disposition

bury, Vermont, would provide a highway connection

for motorists between U. S. Route 2 (an east-west

road) and Interstate I-91 (a north-south road).

Without the interchange, those who wished to trans-

fer from one highway to the other would have to

leave the highway and pass through the narrow

streets of St. Johnsbury. The two principal road-

ways, Route 2 and I-91, are presently under con-

struction; the sole project at issue before this Court

is the proposed interchange.

As envisaged, building the St. Johnsbury inter-

change would require the channelization * of approx?-

mately one mile of Sleepers River. The environ-

mentalists sought to enjoin the project because of

alleged failures by defendants to comply with fed-

eral law. They alleged procedural and substantive

violations of NEPA § 102(2)(c).” Before the trial

court, and here, that the draft and final EIS were

prepared by the state agency rather than by the fed-

of the Sleepers River Interchange controversy, designated a

matter of “considerable urgency.”

By order dated Aug. 26, 1974, a stay pending appeal was

issued by a panel of this Circuit pursuant to F.R.App.Proc. 8.

The stay was dissolved by the present panel, in an order

dated October 23, 1974.

* Channelization of a stream, in the context emp!oved here,

involves the creation of an artificial stream bed and diversion

of a stream from its natural course to the constructed water-

way. From perspectives of engineering, ecology and aesthe-

tics, clearly a broad spectrum is comprehended in the term

“channelization.”

eral agency and observed that, contrary to statute,

the EIS did not consider alternatives to the con-

struction. While conceding certain shortcomings in

the EIS, the district court found the construction

essential and declined to issue an injunction. Non-

compliance with the permit requirements of the Fed-

eral Water Pollution Control Act of 1972” is also

pressed on this appeal as grounds for enjoining fur-

ther work on the interchange. The district court

found that plaintiffs could not maintain such cause

of action because they had not satisfied a sixty-day

notice requirement established by the Pollution Con-

trol Act as a precondition to private suit.”

Il. The “Responsible Official” to Prepare the EIS.

Consideration of environmental factors in planning

major federal projects has been deemed a high na-

tional priority. The duty of a federal agency under

NEPA is to produce, as part of a determination

whether to proceed with a project, a detached and

comprehensive analysis of the impact on the environ-

ment of such project.”

"33 U.S.C. §§ 1311, 1344 (Supp. 1974).

* A claim under the Federal Rivers and Harbors Act, 33

U.S.C. §§ 403, 407 (1970), rejected by the court below, was

not pursued in this appeal.

* 42 U.S.C. § 4332(2) (C), NEPA Section 102(2) (C), pro-

vides in full:

Sec. 102. The Congress authorizes and directs that, to

the fullest extent possible:

[ Footnote continued on page 7a}

In Greene County, supra, the New York Power

Authority, in accordance with the regulations of the

Federal Power Commission, prepared and filed with

the Commission an impact statement to accompany

an application for a new power line. The Commis-

sion reviewed and circulated the statement that had

been prepared by the Authority, a state agency, in

'® [Continued]

(2) all agencies of the Federal Government shall—

* * a *

proposals for legislation and other major Federal actions

significantly affecting the quality of the human environ-

ment, 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.

Prior to making any detailed statement, the respon-

sible Federal official shall consult with and obtain the

comments of any Federal agency which has jurisdiction

by law or special expertise with respect to any environ-

mental! impact involved. Copies of such statement and the

comments and views of the appropriate Federal, State,

and local agencies, which are authorized to develop and

enforce environmental standards, shall be made available

to the President, the Council on Environmental Quality

and to the public as provided by section 552 of title 5,

United States Code, and shall accompany the proposal

through ihe existing agency review processes.

alleged satisfaction of its duty under NEPA. Chief

Judge Kaufman held that in so doing, the Federal

Commission:

abdicated a significant part of its responsibility

by substituting the statement of [the state

agency] for its own. The Commission appears

to be content to collate the comments of other

federal agencies, its own staff and the interven-

ors and once again to act as an umpire. The

danger of this procedure, and one obvious short-

coming, is the potential, if not likelihood, that

the applicant’s statement will be based upon self-

serving assumptions.”

NEPA, Chief Judge Kaufman stated, “explicitly re-

quires the [federal] agency’s own detailed statement”

of the expected environmental impact of a major

federal action. The Act places “primary and non-

delegable responsibility” for preparation of the EIS

on the federal agency. Accordingly, Greene County

held that, to the extent regulations of the Federal

Power Commission did not implement Congressional

policy, compliance with the Commission’s regulations

would not satisfy NEPA.

In the highway cases presently before us, the

FHWA is the initial decision maker under the Act.

While it does not plan, design or construct highways,

FHWA decides whether the commitment of millions

of dollars of federal money should be allocated to

“455 F.2d at 420 (footnotes omitted).

"Id. at 421 (emphasis original).

* Id. at 420.

specific highway projects. Accordingly, having care-

fully considered the Act, the regulations and prece-

dent, we conclude that FHWA is in the best position

to weigh the costs to the environment and the bene-

fits hoped for from the project and then to reach, as

it must, a decision based on “its own evaluation of

the environmental issues.” *’

A state agency is established to pursue defined

state goals. In attempting to secure federal approval

of a project, “self-serving assumptions” may ineluct-

ably color a state agency’s presentation of the envi-

ronmental data or influence its final recommendation.

Transposing the federal duty to prepare the EIS to a

state agency is thus unlikely to result in as dispas-

sionate an appraisal of environmental considerations

as the federal agency itself could produce. Judge

Oakes declared that:

[Tjhe Vermont Highway Department has the

duty .. . to follow legislative mandate in regard

to proposed highway construction, and the con-

struction here contemplated [Route 7] was leg-

islatively mandated in 1968. Thus, it is impos-

sible for the Vermont Highway Department not

to be an advocate of legislatively mandated con-

struction and still act consistently with its duty

as a state agency.”

Requiring strict adherence to the Greene County

rule would provide a clear and effective means to

** Council on Environmental Quality (CEQ) Guidelines, 38

Fed.Reg. 20553 (1973).

* 362 F.Supp. at 631.

l0a

obtain an objective, comprehensive EIS. Further-

more, the beneficial effects of such an approach are

substantial.

[A]ppropriate agency regulations on EIS au-

thorship . . . would shift the initial burden of

monitoring compliance with this aspect of

NEPA to the agencies themselves, while facili-

tating ultimate judicial evaluation of such com-

pliance. ... [T]he case-by-case approach .. .

tends to encourage even more NEPA litigation,

while at the same time increasing the chance

that a legally insufficient EIS might for lack of

litigation become the basis for federal decisions

made in ignorance of potentially disastrous envi-

ro.mental consequences.”

Lodging primary responsibility with the federal

agencies would clarify definitively the respective roles

of agency and court in effectuating the Congressional

purposes. By assuring unambiguous rules, judicial

intrusion into what are in essence agency determina-

tions will be avoided wherever possible.”

Further litigation before this Court should be ren-

dered unnecessary, or at least kept to a minimum,

regarding whether “significant federal participation”

or “substantial interaction” between federal and

state agencies satisfy NEPA requirements. Nothing

‘* 1-291 Why? Ass’n v. Burns, 372 F.Supp. 223, 246, n. 72

(D.Conn. 1974), appeal filed No. 74-1545 (2d Cir. Feb. 7,

1974).

*? Sec, Natural Resources Defense Council, Inc. v. Morton,

148 U.S.App.D.C. 5, 458 F.2d 827, 838 (1972).

lla

short of “genuine” federal preparation of the EIS

accords with Greene County.

The interpretation of the statute by the Council

on Environmental Quality, CEQ, has been expressly

accommodated to the Greene County result.” The

CEQ guidelines presently read:

§7(c). Where [a federal] agency relies on an

applicant to submit initial environmental infor-

mation, the agency should assist the applicant

by outlining the types of information required.

In all cases, the agency should make its own

evaluation of the environmental issues and take

responsibility for the scope and content of draft

and final environmental statements.”

It is objected that a stringent rule requiring

FHWA preparation of the EIS is unmanageable

from a practical viewpoint. Upon careful review,

*1 362 F.Supp. at 632.

*? 38 Fed.Reg. 10856, 10865 (1973) (statement accompany-

ing proposed guidelines for the preparation of an EIS; com-

ments to § 7(d)).

*® Fed.Reg. 20550, 20553 (1973), codified as 40 CFR

§ 1500.7(c) (emphasis added). The guidelines do permit “the

use [after review] of initial information furnished by an

applicant in the form of an EIS.” 38 Fed.Reg. 10865.

The CEQ published FHWA Policy and Procedure Memo-

randum (PPM) 90-1 two years prior to issuance of its re-

vised guidelines (102 Monitor, Vol. 1, No. 9, Oct. 1971). Such

earlier publication does not provide evidence that CEQ pres-

ently approves the procedures outlined in PPM 90-1. The

more likely inference is that the 1973 guidelines were intend-

ed by CEQ to stimulate agency revision of internal procedures

inconsistent with judicial and CEQ interpretations of the

Act.

12a

however, it would appear that the problems entailed

in conforming to Greene County are tractable.™

It is contended that the FHWA is not involved in

planning a particular project from the earliest stages,

and thus does not have the advantage of information

available to the state. This handicap is minimized

however, for the CEQ guidelines explicitly preserve

sufficient flexibility for the federal agency to solicit

and integrate information from state agencies.”

Surely there is no reason to lose the benefit of any

work done by the state during initial exploration in-

to project possibilities prior to federal involvement.

Turning now to the cases before the Court, in Con-

servation Society of Southern Vermont, we affirm the

judgment of Judge Oakes that the requisite EIS be

“* Shortages of both general and expert personnel are cited.

However, we agree with the district court in Southern Ver-

mont that this difficulty is best addressed to Congress. 362

F.Supp. at 361. Testimony on behalf of the Vermont Highway

Department indicated that the FHWA already absorbs that

share of the cost of EJS preparation commensurate with its

underwriting of construction costs. It has been suggested that

states might be asked to continue to pay their portion of costs

when the FHWA prepares the EIS. No financial constraints

operating on FHWA would thus hamper their ability to pre-

pare the EIS. See Comment, The Independent Offices Appro-

priations Act of 1952; Who Should Pay for the Impact State-

ment, 3 E.L.R. 10059 (1973); Comment, More on the Inde-

pendent Offices Appropriations Act of 1952, 3 E.L.R. 10086

(1973). The Supreme Court recently approved a fee assess-

ment by a federal agency under the Appropriations Act. Na-

tional Cable Television Assoc., Inc. v. United States, 415 U.S.

336, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974).

*° Notes 22, 23, supra.

l3a

prepared by the FHWA, the responsible federal

agency. The injunction prohibiting construction of

Route 7 will continue until the requisite EIS is pre-

pared in compliance with the district court order.

In Vermont Natural Resources Council a signifi-

cantly different factual context is presented. To the

extent that the district court questioned the need for

FHWA compliance with Greene County, its opinion

is not sustained. But the district court ascertained

that, in any event, several factual considerations com-

bined to justify withholding an injunction. Since we

have resolved that the district court did not abuse its

discretion in making its determination, we affirm the

result reached below on this point.”

In determining whether to issue an injunction

against proceeding with the Sleepers River Inter-

change, Judge Coffrin found that, under the circum-

stances, the equities largely favored the defendants.

The court pointed to the late stage reached by the

*° It would appear that the district court was moved in part

at least by what it perceived as significant federal interaction

in the preparation of the EIS. In contradistinction to Con-

servation Society, Judge Coffrin found that federal-state co-

operation was “much more extensive.” Slip Opinion 15. Fed-

eral review of the draft EIS was described as “searching.”

Slip Opinion at 12. In addition, federal agency contributions

incorporated into the final EIS were found to be substantial.

While the level of involvement described does not reach the

standard reaffirmed by this Court today, Judge Coffrin’s find-

ings in this regard help sustain his decision not to enjoin con-

struction in the Sleepers River case until a properly prepared

EIS is available.

14a

general construction program,” to the very strong

considerations of public safety urged by St. Johns-

bury into whose streets the I-91 highway traffic must

otherwise empty, and to the urgency attending com-

pletion of this project.

Although the procedural requirements of NEPA

must be followed scrupulously * and cost or delay will

not alone justify noncompliance with the Act,*’ where

the equities require, it remains within the sound dis-

cretion of a district court to decline an injunction,

even where deviations from prescribed NEPA pro-

cedures have occurred.’ We cannot conclude, based

on its factual determinations and its weighing of the

equities, that the district court abused its discretion

** Design approval for the I-91 construction was prior to

Feb. 1, 1971. I-91 construction in Vermont was in its final

phase. Even as to the interchange project at issue here, land

acquisition has been completed, contracts have been awarded

and construction has begun. Slip Opinion 5-6, 22, n. 1.

** Calvert Cliffs’ Coordinating Committee v. AEC, 146 U.S.

App.D.C. 33, 449 F.2d 1109 (1971): Greene County, supra;

City of New York v. United States, 344 F.2d 929 (E.D.N.Y.

1972) (3-judge court, Friendly, J.).

** Calvert Cliffs,’ supra; Greene County, supra; Environ-

mental Defense Fund, Inc. v. Froehlke, 477 F.2d 1033 (8th Cir.

1973).

°In Greene County, the court held that as to certain por-

tions of the power line construction, “[{T]here can be no ques-

tion that the Commission failed to comply with NEPA....

Nevertheless we find no compelling basis for halting construc-

tion of the lines so far [80%] advanced . . .” 455 F.2d at

424-425. See also Environmental Defense Fund, Ine. v.

Froehlke, 477 F.2d 1033 (8th Cir. 1973), and cases cited

therein.

l5da

in refusing to enjoin construction of the Sleepers

River Interchange.

III. EIS for the Route 7 Corridor

The defendants appeal from the portion of the or-

der in Conservation Society of Southern Vermont

that, within six months from issuance by the FHWA

of the EIS relating to the 20 mile project, an EIS

concerning development of transportation systems in

the entire 280 mile Route 7 corridor must be pre-

pared.”

Although no plan presently exists for constructing

a Route 7 superhighway through Connecticut, Massa-

chusetts and Vermont, the district court made partic-

ular findings indicating a long-range goal of super-

highway construction by the respective states and the

federal government, acting in partnership." Develop-

ment is apparently foreseen as the piecemeal con-

nection of smaller segments, each considered on an

ad hoc basis. It appeared that the FHWA would not

consider a comprehensive corridor-long EIS necessary

because the highway as an entity would never be

characterized as a “major Federal action.” * Judge

Oakes emphasized the undesirable consequences if

each isolated increment is approved in ignorance both

of the cumulative environmental impact of frag-

mented growth and of major transportation alterna-

*1 362 F.Supp. at 638.

82 Id. at 636.

3 42 U.S.C. § 4332 (2) (c).

l6a

tives that might be planned in lieu of highway con-

struction.”

The government advances the contention that the

scope of the EIS required by the district court is ex-

cessive, first, in view of the nonexistence of any

present plans to build the three-state highway, and

second, in light of the relatively small portion of road

reviewed here.*

Under the facts as found, we would not disturb the

district court’s conclusion that an ultimate Route 7

superhighway is the expectation of state agencies with

the knowledge and cooperation of the federal gov-

ernment. We thus must reach the second issue, wheth-

er it was beyond the sound exercise of discretion of

the district court to order an EIS considerably great-

er in scope than the specific project before the agency

at this time.

Support for the order below may be found in

NEPA, which provides that the EIS include consid-

* The defendants would cast this determination by the

district court as an intrusion into FHWA decision-making

inconsistent with the limited scope of review afforded sub-

stantive matters. The failure of the FHWA to provide any

impact statement regarding the entirety of what the district

court found to be an ongoing, albeit piecemeal, development

is not so sheltered from judicial review. Scientists’ Institute

for Public Information, Ince. vy. A.E.C., 156 U.S.App.D.C. 395,

481 F.2d 1079 (1973); Natural Resources Defense Council,

Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972);

City of New York v. United States (II), 344 F.Supp. 929

(E.D.N.Y. 1972) (3-judge court).

** The Bennington-Manchester Route 7 project is approxi-

mately 20 miles in length.

17a

eration of the relation between short and long term

uses of the environment, especially where “irreversi-

ble and irretrievable commitments of resources” will

follow from approval of the proposed project.”” NEPA

also requires that federal agencies “recognize the

worldwide and long-range character of environmental

problems.” For consideration of environmental fac-

tors “to the fullest extent possible’, CEQ requires re-

view “beginning at the earliest possible point.” *

CEQ reminds agencies that, to be meaningful, impact

statements “are to serve as the means for assessing

the environmental impact of proposed agency actions,

rather than as a justification for decisions already

made.” *

“ 42 U.S.C. § 4332(2) (C) (iv), (v).

** 42 U.S.C. § 4332(2) (E). The Senate report accompany-

ing NEPA states expressly that one function of the Act is to

prevent decision-making that affects the environment to take

place “in small but steady increments which perpetuate rather

than avoid the recognized mistakes of previous decades.” S.

Rep. No. 91-296, 91st Cong., Ist Sess. 5 (1969).

** 38 Fed.Reg. 10856, 10865 (1973).

°° 38 Fed.Reg. 20550, 20552 (1973). 40 C.F.R. § 1500.2(a)

mandates that “in all cases prior to agency decision” a de-

tailed EIS is necessary. Courts also have required impact

statements prior to decision-making by agencies. Calvert

Cliffs’, supra, described tardy consideration of environmental

factors as a “hollow exercise.” 449 F.2d at 1128.

See also Arlington Coalition on Transportation v. Volpe,

458 F.2d 1323 (4th Cir.), cert. denied, 409 U.S. 1000, 93

S.Ct. 312, 34 L.Ed.2d 261 (1972); Citizens Env’l Council v.

Volpe, 364 F.Supp. 286, 293-294 (D.Kan.), aff’d, 484 F.2d 870

(10th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1935,

40 L.Ed.2d 286 (1974); Citizens for Clean Air v. Corps of

Engineers, 349 F.Supp. 696, 708 (S.D.N.Y. 1972).

18a

The appropriateness of ordering impact statements

for entire development programs when a proposal be-

fore an agency concerns only one portion of a more

massive undertaking is not a novel issue in the

courts.”” In Scientists’ Institute for Public Informa-

tion v. AEC," the plaintiffs sought to force AEC to

prepare an EIS regarding the liquid metal fast breed-

er reactor program to develop fuel for nuclear-pow-

ered electric generators. The AEC conceded that at

some future time prior to the construction of gener-

ator plants an EIS would be required, but the agency

ascertained administratively that the program, still in

the research and development stages, was not ripe for

preparation of an EIS, The Court of Appeals for the

District of Columbia disagreed. It reasoned that de-

velopments presently occurring required the “jrioc-

versible and irretrievable commitments of resources,”

and that these commitments themselves would cur-

tail subsequent broad-seale assessment of alterna-

tives.”

*° The related question of artificial division of a project into

smaller segments for approval is considered in Indian Lookout

Alliance v. Volpe, 484 F.2d 11 (8th Cir. 1973), and Named

Individual Members v. Texas Highway Dept., 446 F.2d 1013

(5th Cir. 1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32

L.Ed.2d 136 (1972). The test for whether an isolated highway

segment is the proper subject of an EIS appears to be whether

the segment has an independent utility, whether it has logical

functional termini. PPM 90-1 §3(a).

“156 U.S.App.D.C. 395, 481 F.2d 1079 (1973).

“Id. at 1092. See also Natural Resources Defense Council,

Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 835 (1972).

19a

Judge Oakes was equally concerned with the irre-

trievable commitment of federal funds to local high-

way projects without early attention to possible alter-

natives to highway development. Furthermore, in

contrast to the situation in Scientists’ Institute, where

it was clear that an EIS would be forthcoming at

some time covering the reactor program, in the Route

7 case it appears that no overall impact statement is

likely to emerge spontaneously from the FHWA.

The Bennington-Manchester Road is admittedly a

project with local utility. Accordingly, the govern-

ment asserts that by submitting an EIS for this seg-

ment compliance is established with the NEPA man-

date to consider the environment from a broad per-

spective. The FHWA guidelines themselves would

seem to answer this contention. Guidelines on the

scope of an EIS provide:

The highway section included in an environmen-

tal statement should be as long as practicable

to permit consideration of environmental mat-

ters on a broad scope. If possible, the highway

section should be of substantial length that would

normally be included in a multi-year highway

improvement program."

Upon careful consideration of the facts, and with

a sensitive eye to the options often impreceptibly

foreclosed by fragmented growth, we conclude that

the legislation, the regulations and precedent appear

to afford ample basis for Judge Oakes’ determina-

* PPM 90-1 {| 6.

20a

tion.“ The court thus did not abuse its discretion in

concluding that the time was appropriate for early,

comprehensive and meaningful consideration of the

environmental impact of an alternative to continued

highway expansion in the Route 7 corridor.”

IV. Consideration of Alternatives at Sleepers River

An attack was leveled by plaintiffs in Vermont

Natural Resources on the substantive adequacy of

the EIS for the Sleepers River Interchange because

the EIS did not consider, as required by NEPA,

other route locations or the alternative of abandoning

the project." NEPA’s mandate is clear that agencies

***In a recent per curiam opinion, this Circuit affirmed a

district court determination relating to a portion of the Route

7 corridor between Danbury and New Milford, Connecticut.

Citizens for Balanced Environment and Transportation, Inc.

v. Volpe, 503 F.2d 601 (2d Cir. 1974). In that case the district

court dealt solely with the question of whether or not there

was federal action in the construction of the Danbury-New

Milford portion of Route 7; it did not consider the issue of the

necessity for an EIS covering the entire corridor. Thus, the

affirmance by this Court of Judge Newman’s specific finding

does not preclude, and is unaffected by, the present affirmance

of Judge Oakes’ general findings.

**Since we affirm the district court’s requirement of a

corridor-long EIS based on NEPA, we do not reach the ques-

tion whether such order might be bottomed on the additional

basis asserted by the district court, namely, the Intergovern-

mental Cooperation Act of 1968, 42 U.S.C. § 4231 (1973).

**The EIS shall include a detailed statement of “any ad-

verse environmental effects which cannot be avoided should

the proposal be implemented,” as well as “alternatives to the

proposed action.” 42 U.S.C. § 4332(2) (C).

All federal agencies are required to “study, develop, and

describe appropriate alternatives to recommended courses of

2la

must accord thorough heed to the environmenta! im-

pact of reasonably available options prior to a forma!

determination to pursue a course of action.“ While

consideration of every conceivable alternative is not

necessary, “what is required is information sufficient

to permit a reasoned choice of alternatives... .”~

Generally an EIS must consider the possibility of do-

ing nothing as well as various ways to achieve a

certain end.”

The EIS here, in violation of NEPA, did not in-

clude a discussion of the environmental impact of not

building the Sleepers River Interchange. Despite this

failure, a constellation of facts contributed to the dis-

trict court’s conclusion that no injunctive relief was

warranted in the case before it. Plaintiffs contend

that a clear violation of NEPA justified injunctive

relief against defendants pending compliance with the

statute. Ordinarily, we would not take issue with a

action in any proposal which involves unresolved conflicts

concerning alternative uses of available resources.” 42 U.S.C.

§ 4332(2) (D). See also S.Rep. No. 91-296, 91st Cong., Ist

Sess. 21.

(10th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1935,

40 L.Ed.2d 286 (1974); Monroe County Conservation Council,

Inc. v. Volpe, 472 F.2d 693 (2d Cir. 1972), Natural Re-

sources Defense Council, Inc. v. Morton, 148 U.S.App.D.C.

5, 458 F.2d 827 (1972); Committee for Nuclear Responsi-

bility, Inc. v. Seaborg, 149 U.S.App.D.C. 385, 463 F.2d 783

(1971).

‘7 Natural Resources Defense Council, Inc. v. Morton, supra.

*® Monroe County Conservation Council, Inc., supra.

22a

rule that, where other things are equal, a clear viola-

tion of a statute embodying a strong national policy

merits injunctive relief. But here the district court

found that the equities clearly and strongly favored

the defendants.

Three grounds, each supported by the record, pro-

vided the basis for the district court’s result. We

need not decide today whether fewer than the sum

of these would justify withholding injunctive relief,

for here all were present.

First, the district court found that the general I-91

highway project and the Sleepers River Interchange

were at an advanced stage of completion. I-91 when

complete will provide highway transportation in Ver-

mont from the Massachusetts border north to Can-

ada. Most of the construction phase is ended and all

but 24 miles of i-91 are in operation in Vermont.*

The I-91 portion to be serviced by the interchange

was almost finished, and the interchange was found

necessary to provide adequate access to I-91. The

land acquisition program for the interchange right of

Way Was accomplished. Contracts had been let and

construction had begun except for actual diversion

of the river bed.”

“It was ‘Stated at oral argument without contradiction

that approximately 80°, or 3,900 feet of the 4,800 foot-long

channelization of Sleepers River was attributable to the I-91

construction to which no objections are raised.

. The late stage at which this construction has been sub-

jected to attack provides a vivid contrast to the situation in

Southern Vermont, the companion case here, where the

district court ordered early contemplation of alternatives,

23a

Second, granting an injunction appeared unjusti-

fied where the outcome was virtually undisputed,

where the affected resource was not “so environ-

mentally unique [as to require] any special consid-

eration,” “' and where extensive and thoughtful con-

sideration had been given to mitigating the adverse

environmental consequences of the project. Thus, the

court found that the interchange was essential “for

the benefit of the traveling public and the effective

utilization of I-91” as well as for the safety and

general welfare of the citizenry of St. Johnsbury.

Elimination of the interchange, the court found, was

“a very remote possibility” * and alternative pro-

posals were “impossible to realistically implement be-

cause of adverse terrain.” Further, in preparing

plans for the actual construction, exhaustive efforts

had been expended to preserve the ecological value of

the river, notwithstanding the channelization.”

permitting a more meaningful appraisal. Greene County,

supra; Arlington Coalition on Transportation, supra; Calvert

Cliffs’, supra.

*! Dist. Court slip opinion at 24. The Court noted that al-

though six alternative routes were suggested in the final EIS

for the remaining 24 miles of I-91, all contained identical plans

for the Sleepers River Interchange.

%2 Id. at 23.

8 Id. at 24.

* Id. at 19.

°S Jd. at 21-24. In the course of review prior to issuance of

the final EIS, there had been meetings with the U. S. Depart-

ment of Interior Fish & Wildlife Service and the Vermont

Fish & Game Department. Many aspects of construction were

24a

Third, Judge Coffrin found that the heavy damage

to defendants to be expected from an injunction mili-

tated against its issue. Delay and concomitant cost

increases would not alone justify noncompliance with

the Act.” Here, however, the court found that until

the interchange was complete the town bore an “im-

permissibly heavy traffic burden,” comprising the

quality of life in the town and the safety of its

inhabitants. Also, construction would provide jobs

in an area of high unemployment. On the other

hand, the delay occasioned by an injunction would

be especially costly because of the curtailed construc-

tion season in northern Vermont, which would, in

effect, postpone the job an entire year, although a far

shorter period might be required to comply with

NEPA.

The district court gave the above reasons for with-

holding injunctive relief notwithstanding the viola-

tion of NEPA in regard to contemplation of alterna-

tailored to incorporate suggestions to alleviate the environ-

mental impact of channelization, directed to flood control and

the preservation of the fishing, recreational and aesthetic value

of the stream. Some of the modifications involved placing a

natural boulder fill in the channel, designating the steepness

of the banks and the depth of the channel, and planting shade

trees to keep down water temperature, to hold the soil and

to promote the growth of other vegetation.

** Greene County, supra; Calvert Cliffs’, supra.

* Slip opinion at 18.

** Id. at 35. This would appear to be of no consequence if

the ultimate outcome were in substantial donbt, but such was

not found to be the case.

25a

tives in the EIS for the Sleepers River Interchange.

When all the pertinent facts are considered, we can-

not say the district court abused its discretion in so

deciding.”

V. The Federal Water Pollution Control Act Claim

The plaintiffs in Vermont Natural Resources Coun-

cil also contend that the district court erred by con-

cluding it lacked jurisdiction to entertain a claim

that defendants’ channelization of Sleepers River vio-

lated the Federal Water Pollution Control Act

(FWPCA) Amendments of 1972." The court con-

cluded that only by waiting sixty days after giving

notice to the administrator, the state, and the alleged

** Aberdeen & Rockfish RR. Co. v. Students Challenging

Regulatory Agency Proceedings (SCRAP), 409 U.S. 1207,

1218, 93 S.Ct. 1, 34 L.Ed.2d 21 (1972) (Burger, C. J., sitting

as Circuit Justice).

#33 U.S.C. § 1251 et seq. (Supp. 1974).

Section 1311(a) provides:

Except in compliance with this section and [section

1344] of this title, the discharge of any pollutant by any

person shall be unlawful.

Section 1344(a) states:

(a) The Secretary of the Army, acting through the Chief

of Engineers, may issue permits, after notice and oppor-

tunity for public hearings for the discharge of dredged

or fill material into the navigable waters at specified dis-

posal sites.

“Pollutant” is defined in 33 U.S.C. §1862(6) to include

dredged spoil, rock, and sand.

26a

violator as required by the statute“ could plaintiffs

obtain review of the defendants’ actions.

After careful consideration we are not persuaded

that Congress intended the sixty-day notice provision

to erect an absolute barrier to earlier suit by private

citizens under the FWPCA.* However, we decline

*1 33 U.S.C. § 1365(a) reads in pertinent part:

[A]ny citizen may commence a civil action on his own

behalf—

(1) against any person (including (i) the United

States, and (ii) any other governmental instrumentality

or agency to the extent permitted by the eleventh amend-

ment to the Constitution) who is alleged to be in violation

of (A) an effluent standard or limitation under this

chapter ....

+ * * *

33 U.S.C. § 1865 (b) reads:

No action may be commenced—

(1) under subsection (a) (1) of this section—

(A) prior to sixty days after the plaintiff has given

notice of the alleged violation (i) to the Administrator,

(ii) to the State in which the alleged violation occurs, and

(iii) to any alleged violator of the standard, limitation,

or order....

*? See Natural Resources Defense Council, Inc. v. Train,

F.2d (D.C. Cir. 1974). Ordinarily, the 60-day notice

previsions must be adhered to prior to initiation of suit under

the FWPCA. The purpose of the 60-day notice procedure of

§ 1365 is to provide the Administrator time to launch gov-

ernmental enforcement of the FWPCA in lieu of enforce-

ment through private citizens suits. See Sen.Rep. No. 92-414,

92nd Cong., Ist Sess., 79-80 (1971); 1972 U.S.Code Cong. &

Admin. News 3668, 3745.

However, a crabbed construction of § 1365 which would

elevate the 60-day rule to the position of an absolute barrier

to earlier suit fails to account for § 1365(e), which preserves

27a

all private rights to sue for relief under any statute, or com-

mon law. Moreover, a review of the legislative historv of

§ 1365 and its prototype, § 304 of the Clean Air Act, supports

the conclusion that the provisions for obtaining judicial re-

view set forth in § 1365 were not intended to eliminate ave-

nues previously available to citizens seeking enforcement of

the Act, but were rather intended to provide citizens with

an additional remedy. Section 304 of the Clean Air Act, 42

U.S.C. §§ 1857h et seq., was the model for the citizen-suit

provision of the FWPCA, and is substantially identical to

§ 505 of the FWPCA. See Sen. Comm. on Public Works

(Library of Congress) A Legislative History of the Federal

Water Pollution Control Act Amendments of 1972, 93d Cong.,

Ist Sess. (Jan. 1973) (2 vols.), at 820, 1497. See Sen. Comm.

of Public Works, A Legislative History of the Clean Air

Amendments of 1970, 93d Cong., 2d Sess. (Jan. 1974) (2

vols.) at 436-439.

Although it appears that no court has expressly ruled on

whether the § 505 procedure is the exclusive means of ob-

taining review of agency action under the FWPCA, district

courts have in fact exercised jurisdiction over FWPCA claims

based on other jurisdictional statutes. See, e.g., Scenic Hudson

Preservation Conference v. Callaway, 370 F.Supp. 162 (S.D.

N.Y. 1973), aff’d 499 F.2d 127 (2d Cir. 1974) (establishing

jurisdiction to grant permanent and injunctive relief for

alleged violation of § 404 of FWPCA under 28 U.S.C. § 1331

and the APA, 5 U.S.C. §§ 701-706); Natural Resources De-

fense Council, Inc. v. Quarles, F.Supp. — (Civil No.

1629-73, D.D.C., Feb. 1, 1974). See also City of Highland

Park v. Train, 374 F.Supp. 758 (N.D.IIl. 1974), in which the

court held that it had jurisdiction under 28 U.S.C. § 1331 to

review the failure of the EPA Administrator to promulgate

regulations in conformity with the Clear Air Act, 42 U.S.C.

§§ 1857 et seq.

Abbott Laboratories v. Gardner announces the standard to

be applied:

[J]udicial review of a final agency action by an ag-

grieved person will not be cut off unless there is per-

28a

to remand the case for a determination of the merits

of plaintiffs’ claims. Assuming arguendo that the

district court had jurisdiction over the FWPCA

claims and, assuming further that a stream channeli-

zation project such as the one here would require a

permit under the Act, we would not employ the

equitable powers available to this Court to enjoin

further construction of the Sleepers River Interchange

until such a permit is obtained. As already pointed

out, granting such an injunction would cause serious

harm and inconvenience both to St. Johnsbury and

to the general travelling public. The purposes which

would be served by enjoining construction at this

late date are simply not sufficiently weighty to bal-

ance the injury which further delays would cause.

Accordingly, the judgment of the district court in

each of these cases will be affirmed.

suasive reason to believe that such was the purpose of

Congress.

387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967).

See also PBW Stock Exchange, Inc. v. SEC, 485 F.2d 718, 733

(3d Cir. 1973) (dissenting opinion).

Since a “persuasive reason” does not appear in this case,

the notice requirements of § 505 would not operate as a total

jurisdictional bar to entertaining plaintiffs’ claim.

*? Plaintiffs assert that the district court had jurisdiction

to review under either the federal question statute, 28 U.S.C.

§ 1331, or the Administrative Procedure Act, 5 U.S.C.

§§ 701-706.

29a

APPENDIX B

UNITED STATES DISTRICT COURT

D. VERMONT

Civ. A. No. 6598

June 2, 1972

THE CONSERVATION SOCIETY OF

SOUTHERN VERMONT, INC., ET AL.

JOHN A. VOLPE, Secretary of Transportation, et al.

FINDINGS OF FACT, OPINION AND ORDER

OAKES, Circuit Judge (Sitting by Designation).

The above matter came on for hearing on May 22,

24 and 25 on plaintiffs’ application for preliminary

injunctive relief. By consent of the parties and or-

der of the court, pursuant to Fed.R.Civ. P. 65, the

hearing was transposed into one on the merits, i.e.,

plaintiffs’ application for permanent injunctive re-

lief. Defendants waived any objection to plaintiffs’

standing to sue, Scenic Hudson Preservation Con-

ference v. FPC(I), 354 F.2d 608 (2 Cir. 1965),

cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d

540 (1966), except as to plaintiff The Vermont As-

sociation of Railway Passengers, and the court finds

that the individual plaintiffs, as residents and citi-

zens of Bennington County, Vermont, as well as plain-

30a

tiff The Conservation Society of Southern Vermont,

Inc. (“The Society”), of which they are members,

have the requisite personal interest or stake in the

outcome of this litigation under Sierra Club v. Mor-

tion, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636

(Apr. 19, 1972), to maintain it. No showing having

been made as to any standing of The Vermont As-

sociation of Railway Passengers, the complaint is dis-

missed as to it. Plaintiffs called four witnesses, de-

fendant State of Vermont three, and defendant Volpe

one. The court has considered all documentary and

photographic proof offered, and makes the following

findings of fact.

FINDINGS OF FACT

1. Bennington County, Vermont, is located in the

southwest portion of the state and is a county of

great scenic beauty, consisting of valleys, hills, gla-

cially formed mountains (Taconic and Green), forest

areas, some remaining pastoral scenery located pri-

marily in the valleys, village and small towns, along

with the larger towns, which are also highway cross-

roads, of Bennington and Manchester, Vermont, the

former known for its college and varied residential-

commercial and industrial economy, the latter known

primarily as a winter-summer recreation area with

four-season homes nearby.

2. Bisecting Bennington County, primarily run-

ning through the valley floors between the north-south

range of Green Mountains and the more or less

sla

parallel north-south range of Taconic Mountains to

the west, is U.S. Route 7, a major highway that

runs through western Connecticut and Massachusetts,

through Bennington County to Vermont’s two major

cities, Rutland and Burlington, and thence to the

Canadian border where it leads to Montreal. Over

90 per cent of the County’s population is in the

towns through which Route 7 passes (Gov.Ex. 4,

p. 4), but the highway itself is especially scenic since

the principal valley land which it traverses is only

3 to 6 miles wide and the parallel mountain ranges

that border it rise abruptly 2,000 feet or more in

altitude from the valley floor. It is truly an area

with the stuff of which poetry is made; one of Robert

Frost’s five Vermont farms lay there.

3. The average daily flow of traffic on Route %

as of 1968 varied from 3,500 to 4,500 vehicles, rising

to more than 13,000 per day (one of the highest in

the State of Vermont) in the busy commercial cen-

ter immediately to the north of Bennington Village.

The design of Route 7 is obsolete for much of its

leneth, in view of present day traffic patterns and

volumes, being winding, narrow, hilly, with short

sighting distances, relatively sharp curves, limited to

two lanes, and presenting hazards to the traveling

public as well as the local populace. It has, however,

been improved in certain stretches, particularly in

that part of the County north of Manchester.

4. Improvement of Route 7 has been talked about

for at least 15 years, has been in various stages of

highway thinking, planning and design for 8-10

32a

years, has been in part the subject of a legislative

mandate for construction since 1966, and is neces-

sary not only to highway safety but also to the long-

range planning needs of the County, as set forth in

the Regional Plan, Bennington County Vermont Re-

gional Planning Commission (1970) (Gov.Ex. 4).

5. “Design approval” as a term in highway think-

ing is new, originating after enactment of the Na-

tional Environmental Policy Act (NEPA) and De-

partment of Transportation regulations adopted, if

not in accordance therewith, in accommodation there-

of. “Design approval” is a term of art, so to speak,

in that prior to the adoption of those regulations

there was no formal step or procedure whereby the

federal government, acting through the now defunct

(if not extinct) Bureau of Public Roads, gave its

“approval” to the “design” of any highway. The

court finds, nevertheless, that, as explained in the

testimony and particularly in Government Ex. 6, by

Albert R. Purchase, longtime Division Engineer for

the Bureau and the Federal Highway Administra-

tion (FHWA), design approval within the meaning

of PPM 90-1 (DOT-Fed. Highway Adm’n) trans-

mitted under date of August 24, 1971, Para. 5(e),

was had for the following Route 7 projects as of

July 17, 1968:

F 019-1(6); F 219-1(7); F 109-1(8); AP 019-

1( ), F 110-1( ), AP 019-1( ); F 019-1(9)

(except for the northerly 1.47 miles thereof, as

to which there was no design approval until

January 26, 1971.

33a

The court limits this finding to the proposition

that in substance the overall route, line, or general

location was submitted by the state highway depart-

ment to the federal agency and received substantial

acceptance therefrom subject to minor refinements of

line and such lesser changes as might be made in the

course of survey, design and right of way acquisi-

tion. This finding is made by a court bearing in

mind that so-called Section 222 hearings (19 V.S.A.

§ 222) were not held by the State until later and

that so-called “design hearings” (a creature of PPM

20-8) were not held until after such “approval” had

been granted, the “hearings” being intended to com-

ply with an entirely new federal regulation or set of

regulations (contained in PPM 20-8, issued on or

about January 14, 1969, under the Federal-Aid High-

way Act and the Department of Transportation Act).

“Design approval” in this narrow and limited sense

means general approval of an overall line, and is

subject to specific engineering changes resulting from

the preliminary survey and objections voiced by com-

munities and landowners affected by the proposed

route, as well as by ecologists.

6. No design approval in any sense of the term

was had for the following projects until January 21,

1971: AP 219-1( ), F 110-1( ), AP 219-1( ), the

southerly half of the so-called Bennington Belt-Line;

and until January 26, 1971, the northerly 1.47 miles

of Project F 019-1(9) leading easterly of the vil-

lage of Manchester. No such approval has been had

for any other Route 7 improvements other than those

already construction-complete.

34a

7. So-called Arterial 7, consisting of Projects IF

019-1(6) and F 219-1(7), and meeting the highest

traffic-flow requirements of the area (see Finding

No. 3 above), is independent of and unrelated to the

other projects in question; the construction of Ar-

terial 7 is at a further stage of progress than any

of the other projects; completion of Arterial 7, con-

sisting mainly of re-routing and improving the

traffic through and to the immediate north and south

of Bennington Village will not require or affect the

planning or construction of any other portion of

Route 7; and such completion is necessary at the

earliest possible moment both from a traffic and a

cost standpoint. There are no foreseeable substantial

adverse ecological or environmental effects of con-

struction, were continuation of pending plans and

completion of construction of Arterial 7 as above

defined to occur.

8. Despite “design approvals” on July 17, 1968,

of Projects F 019-1(8) and (9), and on January

21, 1971, of Projects AP 219-1( ), F 110-1( ), AP

219-1( ) January 26, 1971, of Project F 019-1(9)’s

northerly 1.47 miles, there are substantial ecological

and environmental effects that may occur if the

present highway design of these projects is pushed

to completion, that have not been adequately con-

sidered by the federal and state highway engineers

and that may, with relative ease of design and right

of way acquisition, be avoided in any future con-

struction. These effects—cognizable even from only

a limited exploration of the area by the plaintiffs’

35a

expert ecologists—indicate that a review of environ-

mental effects along this major portion of the pro-

posed relocation of Route 7 is required to avoid

upsetting ecological balances and to avoid the de-

struction of invaluable environmental resources. Any

delay occasioned by such a revaluation—estimated by

government witnesses to take one year—will cost the

defendants little or nothing because design and ac-

quisition of these portions of the highway have not

reached a stage where bids are ready to be let, and

many indeed preserve ecological values which will

be cherished by succeeding generations although they

may seem to some to be of little or no meaning now.

9. Specifically included in the adverse effects that

may occur are those (1) to Jewett’s Brook and its

wetlands and marsh, which have botanical significance

and require soil stabilization (avoidance of siltation

and sedimentation together with preservation of the

quality of run-off), and which attract significant and

rare birdlife; (2) to Harrington’s Cobble, an abruptly

rising limestone hillock with a peculiar profusion of

herbs and wildflowers, unique in Bennington County ;

and (3) to a portion of the Chiselville beaver pond

with adjacent marshes containing a_botanically

unique juxtaposition of wetland softwoods and hard-

woods, with concomitant aquatic vegetation. Upon

a re-survey of the ecological effects of these proposed

highway projects other similarly significant wilder-

ness or semi-wilderness areas may be uncovered with

substantially equivalent long-range significance ex-

36a

tending well beyond the short-term highway use to

which defendants intend to appropriate them.

10. There has been a degree of “community in-

volvement” in connection with the proposed highway

changes, but—on the somewhat scanty record before

the court in this respect—the communities, as exem-

plified by Government Ex. 2, have been more con-

cerned with local socio-economic and short-range ef-

fects of highway improvement, rightfully including

increased highway safety, to be sure, than with the

long-range preservation of the environment. This

environment helps to make Bennington County, and

the state in which it is situated, an example which

the rest of the United States would be fortunate to

be able to emulate.

11. The state highway department has, before any

National Environmental Policy Act, valiantly at-

tempted in the past few years—in which there has

been a rapidly expanding public consciousness of en-

vironmental impact—to examine the environmental

effects of proposed highways. This concern, genuine

if belated, has manifested itself by, for example,

calling in Dr. Frederick Mould, an acknowledged

wetlands expert, to advise on the Jewett’s Brook

marsh here involved, and following his advice to the

extent of moving the proposed line easterly—all of

this only after the department’s attention was called

to this by plaintiff's counsel. At the hearing the

concern manifested itself further in the testimony

of one of the state engineers who indicated that, by

“squeezing” the median strip of what ultimately

37a

is apparently planned as a four-lane highway, any

major damages to Harrington’s Cobble might be

avoided within the limits of the present design and

right-of-way acquisitions now in process. Like that

of other departments, state and federal, the environ-

mental attention now being paid by the Vermont

state highway department may be both too little and

too late, but not so little or so late that a thorough

review of environmental impact, followed by what

probably are simple design-engineering changes, will

still be sufficient to save the day.

CONCLUSIONS OF LAW

This court rejects the broad view of plaintiffs

that the National Environmental Policy Act (NEPA),

42 U.S.C. § 4332(2)(C), requires an impact state-

ment where any highway project was incomplete as

of January 1, 1970, the effective date of NEPA,

as well as the narrow view of defendants that no

NEPA statement is required if there were “design

approval” of a given highway project before the

date of February 1, 1971 (the time which DOT

apparently thought a reasonable one for the imple-

mentation of NEPA, as per PPM 90-1 $5), or at

least before the January 1, 1970, effective date of

the governing act. In so holding, the court has con-

sidered the leading cases, Hanly v. Mitchell, 460 F.2d

640 (2d Cir., May 17, 1972); Greene County Plan-

ning Board v. FPC, 455 F.2d 412 (2d Cir. 1972);

and Calvert Cliffs’ Coordinating Committee v. AEC,

38a

449 F.2d 1109 (D.C.Cir.1971). The court bears in

mind and agrees with the conclusion of Named In-

dividual Members of San Antonio Conservation So-

ciety v. Tex s Highway Department, 446 F.2d 1015

(5th Cir. 1/71), that highways may not be broken

into such short segments that the public is effectively

left without remedy in the event that two non-ad-

joining segments are approved. This rule of law is

found inapplicable, however, to Arterial 7, as de-

fined in the findings, since that portion of defend-

ants’ proposals is entirely independent of the re-

mainder of them. In rejecting defendants’ narrow

view of the law the court has in mind the decision

in Arlington Coalition of Transportation v. Volpe,

458 F.2d 1323 (4th Cir., Apr. 4, 1972), holding

that “design approval” is not determinative but that

the key question in respect to highway NEPA state-

ments is whether the highway “has reached the

crucial stage. . . .” Parenthetically, we note that

NEPA is not the sole federal act involved; compli-

ance with section 4(f) of the Department of Trans-

portation Act of 1966, 49 U.S.C. § 1653(f), and with

section 138 of the Federal-Aid Highway Act of 1968,

23 U.S.C. § 138, is also required, and the court’s

references to conformance with NEPA requirements

are not intended to by-pass the other applicable

statutes.

In rejecting plaintiffs’ broader view, however, the

court has in mind the decisions of the Third Circuit

in Concerned Citizens of Marlboro v. Volpe, 459 F.2d

332 (Apr. 28, 1972), and Pennsylvania Environ-

39a

mental Council v. Bartlett, 454 F.2d 613 (8rd Cir.

1971), holding that “design approval” together with

federal commitment of funds before January 1, 1970,

makes NEPA inapplicable to highway projects. The

views of the Third Circuit on the one hand and the

Fourth Circuit on the other are not necessarily ir-

reconcilable, however, insofar as the projects in this

case are concerned. The better view, which this

court adopts as its own, seems to be that taken im-

pliedly by the Second Circuit in Hanly v. Mitchell,

supra, and expressed explicitly by District Judge

Peckham in Environmental Law Fund v. Volpe, 340

F.Supp. 1328 (N.D.Cal., Mar. 22, 1972). He held

that in determining the applicability of NEPA to

projects pending as of January 1, 1970, the test is

that suggested by the Council on Environmental

Quality in its guidelines to other federal agencies,

viz., to apply NEPA, or more particularly its sec-

tion 102(2)(C) [42 U.S.C. § 4832(2)(C)] require-

ment of an “impact statement,” to pending projects

“to the maximum extent practicable.” This in turn

requires the court in each instance to balance ap-

propriate factors, including but not limited to (1)

community participation in the decision-making pro-

cess (we have seen how this is relatively unimportant

in this instance); (2) the extent to which the state

agency has taken environmental factors into account

(it is easier to find inadequacies by hindsight, es-

pecially when the public concept of what constitutes

ecological value has been changing as rapidly as it

has in the past decade); (3) the substantiality and

40a

likelihood of harm to the environment if the project

is constructed as planned; and (4) the cost to the

state measured in terms of dollars and to the public

in terms of safety if substantial delay in completion

of the project occurs. This view of the law assumes

of course that impact statements will be required as

to any project such as the Beltline here [AP 219-1

( ), F 110-1( ), AP 219-1( )], which affects Jew-

ett’s Brook and its marshes but the design of which

was not approved until after the effective date of

NEPA. In other words, this court rejects out of

hand the attempt of DOT to extend the effective date

of NEPA by regulation (PPM 90-1) to February

1, 1971. The attempt has support neither in the

Act itself nor in administrative necessity. The fact

that there were thousands of on-going highway proj-

ects on the effective date of NEPA does not make

the Act less effective. We thus weight the other

projects in the scales established, however crude they

may be..

It follows from the findings in respect to Arterial

7 project—its independence from other projects, its

traffic importance, and the lack of any showing of

even trivial environmental significance—that it may

proceed to completion under the tests above enunci-

ated. On part of this improvement bids have been

opened and must be accepted or expire before June

5, 1972; on another part they are ready to be let.

It equally follows as to that part of the affected

projects north of Arterial 7 and extending northerly

from just south of the Bennington line almost to

4la

Manchester that if there has been any substantial

showing of potential serious environmental harm, an

impact statenient must be filed, at least where, as

here, the project has not become so final in engineer-

ing detail as to be ready to submit to bid. In making

this judgment the court is well aware of and con-

cerned by highway safety problems engendered by

any delay that might result; with right-of-way ac-

quisition still in process, however, any delay from

impact statement making (and possible re-design) is

not of substantial significance.

What then of the initial or prima facie showing

by plaintiffs of environmental significance? They

chose, on which to rest their case, a sharply-rising

little limestone hill—a “Cobble” as it is called in this

section of the country—and a beaver pond, of which

Vermont has many hundred, but which at Chiselville

has a rather extraordinary botanical significance.

Will highway development be held up for one little

hill and one beaver pond?

“. . . [I]n Wildness is the preservation of the

World.” So says Thoreau; the Sierra Club has issued

a beautiful book on this theme, bearing this title.

“Every tree sends its fibers forth in search of the

Wild,” the Concord philosopher continues: “([t]he

cities import it at any price.” Indeed, the people

come to Vermont from the cities because they cannot

“import it.” Wildness may not be shipped; it stays

where it is, broken only by the intrusion of man.

“Men plow and sail for it,” Thoreau says, adding,

“(f]rom the forest and wilderness come the tonics

42a

and barks which brace mankind.” To those of us who

are so fortunate to live in Vermont and to have

a little wildness surrounding us, it is probably not

so difficult as it may be for others to conceive in

terms of the preservation of all mankind of the

importance of a little limestone hill rising abruptly

from a valley floor, covered with basil and marjoram

and creeping thyme, with columbine and yellow rag-

wort in dramatic abundance.. The more so any of

us find it difficult to conceive of the lasting, indeed

the underlying importance of wetlands or bogs—

perhaps because understandably we do not recognize,

or we wish to forget, our own insignificant begin-

nings in what Judge Learned Hand called the “pri-

mordial ooze.”

1See G. Taggard, “The Nursery Rhyme and the Summer

Visitor,” A Part of Vermont (1945), quoted in Time in New

England 231 (1950):

Green Mountain Mary, Green Mountain Mary,

What does your garden grow

Violets, moss, ground pine, goldenrod, briars,

Strawberries, hardhack, wintergreen, ferns,

And a little bit of grass, alas.

Will you sell me your meadow?

Oh, no.

Who crops it?

Deer.

See here, Green Mountain Mary, you

people are very,—

Excuse me—

Queer.

And see G. Aiken, Pioneering with Wildflowers passim (1935).

43a

We may agree with the authors of a newly published

book * that “[t]here is then no ‘balance of nature’ un-

less it includes man as part of the balance... ,”

even while we “desire to conserve nature in many

instances for unabashed aesthetic reasons and hold

that these are basic, necessary and indeed do define

the nature of man on a par with energetics, eco-

nomics or any other reason; moreover we have

Gorky’s charge that aesthetics will be the ethics of

the future.”

The policy of the United States in the judgment

of this individual federal judge is that an environ-

mental impact statement is required before com-

mencement of construction of the projects north of

Arterial 7 to Manchester, wherein lies some of the

most beautiful, semi-wild and pastoral countryside

in this nation, in addition to the similar requirement

relative to the Beltline, above mentioned. An injunc-

tion will issue accordingly and plaintiffs are ordered

to submit such for approval; construction of Arterial

7 may proceed without further delay, however, and

the injunction will be framed accordingly. ;

Judgment in accordance with opinion.

2D. Wetherbee, R. Coppinger & R. Walsh, Time Lapse

Ecology, Muskeget Island, Nantucket, Massachusetts (1972),

quoted in Vineyard Gazette, May 26, 1972, at 2-B, col. 3.

44a

APPENDIX C

UNITED STATES DISTRICT COURT

D. VERMONT

Civ. A. No. 6598

July 27, 1973

THE CONSERVATION SOCIETY OF

SOUTHERN VERMONT, INC., ET AL.

SECRETAhY OF TRANSPORTATION, ET AL.

FINDINGS OF FACT, OPINION and ORDER

OAKES, Circuit Judge.

The above entitled action came on for hearing

on the motion by the defendants Secretary of Trans-

portation and David B. Kelly, Division Engineer,

Federal Highway Administration (FHWA) (here-

inafter the “federal defendants”) and H. James

Wallace et al. (hereinafter the “state defendants”),

filed jointly on March 20, 1973, for an order dis-

solving this court’s injunction of October 26, 1972.

See 343 F.Supp. 761 (D.Vt.1972). The ground for

dissolution was that the environmental impact state-

ment (the EIS) required by the National Environ-

mental Policy Act (NEPA), 42 U.S.C. § 4332(2)

(C), ordered to be filed by this court had been duly

prepared and filed and was sufficient and that the

45a

identical requirements of §4(f) of the Department

of Transportation Aci, 49 U.S.C. § 1653(f), and

§ 138 of the Federsi-Aid Highway Act of 1968, 23

U.S.C. § 138 hereinafter sometimes jointly referred

to as §4(f)], had been duly met. Following pre-

liminary argument on the motion to dissolve the

injunction, on April 23, 1973, evidence was taken on

May 10 and 11, 1973, and the parties granted leave

until May 24, 1973, to file additional memoranda

and suppgrting materials. At the time of the taking

of the evidence, for the limited purpose of filing

memoranda of law, The Natural Resources Defense

Council, Inc., and a number of other conservation-

oriented organizations, national, regional and local,

were granted leave to appear as amici curiae.

The parties have briefed, and evidence was taken

on four issues:

1. Whether the EIS was prepared by, or under

the supervision of, the Department of Transporta-

tion, and whether it was required so to be prepared;

2. Whether the EIS as filed met the require-

ments of NEPA, i.e., was sufficient;

3. Whether the Bennington to Manchester, Ver-

mont, segment of Route 7 proposed to be constructed

and covered by the EIS was simply a part of a

larger plan or proposal for an improved Route 7 in

the states of Connecticut, Massachusetts and Ver-

mont so as to require an EIS for the entire length

of existing Route 7; and

46a

4. To what extent certain United States Forest

Lands would be used or affected by the proposed

highway, and how such use or effect relates to the

requirements of § 4(f).

Each of these issues and the evidence in respect

thereto will be discussed separately below, so as to

present a full record for any appeal, and the dis-

cussion in respect to each shall be treated as findings

of fact and conclusions of law thereon.

I. Whether the EIS constituted a “detailed State-

ment by the responsible official” within NEPA § 102

(2)(C).

On its face or cover sheet the EIS shows that it

was “[{p]repared by Vermont Department of High-

ways.” This was done pursuant to the Department

of Transportation’s (DOT’s) Policy and Procedure

Memorandum (PPM) 90-1 which specifically pro-

vides that a state highway agency shall prepare and

circulate a draft EIS in cooperation with the

FHWA, 6b, “shall prepare a final environmental

statement or combined environmental/4(f) statement

in consultation with the FHWA .. .,” § 6i, and that

“FHWA review and adoption of the final impact

statement shall be the responsibility of the Regional

Federal Highway Administrator.” § 6j. Here the re-

gional FHWA office essentially delegated consultation

duties in regard to the EIS to the federal division

engineer in Vermont, defendant Kelley. He in turn

commented on the draft EIS primarily through his

engineering coordinator, Gordon Hoxie. Mr. Hoxie

47a

maintained frequent contact with the Vermont High-

way Department (VHD) during the course of the

work involved in preparation by the VHD, or more

specifically the rural planning section of the VHD.

The individual primarily responsible for the writing

and preparation of the EIS was VHD planning engi-

neer Arthur Goss. During the time of EIS prepara-

tion engineer Hoxie was in verbal communication

with VHD’s Goss two or three times weekly. On one

occasion FHWA division engineer Kelley went on a

field trip, during which the proposed route was ex-

amined and environmental considerations noted and

discussed, with representatives of the VHD accom-

panied by two independent environmental consult-

ants, Frederick H. Mold and William C. Horsford, as

well as by representatives of the Vermont Fish and

Game Department. After a draft EIS was prepared

by the VHD in consultation with but not under the

supervision of the FHWA it was submitted to the

public for comment and to the division office of

FHWA in Montpelier, Vermont, and the regional

office in Delmar, New York.

The division office, and more particularly Mr.

Hoxie as engineering coordinator and the right of

way officer, the planning engineer and the area engi-

neer all reviewed the EIS. At the regional office the

draft EIS was examined by Donato J. Altobelli, di-

rector of the Office of Environment and Design, who

in turn circulated it to a FHWA “Regional Task

Force” for consideration. This “Task Force” con-

sisted of Mr. Altobelli and his assistant, bridge and

48a

construction engineers, a hydraulics engineer, a land-

scape architect, a “regional relocation specialist,” a

regional urban planner and the Deputy Regional

Federal Highway Administrator. It considered the

draft EIS and through Messrs. Kelley and Hoxie

submitted a letter to the VHD under date of October

10, 1972 (EIS at 428), commenting generally that

it thought the EIS to be “a good representation of

the adverse and beneficial environmental impacts of

the proposed projects” and specifically making only

three suggestions as follows: (1) calling for more

“discussion of” the 25 improvements that will be

taken and the persons displaced; (2) suggesting in-

clusion of “an assessment of the impact which the

highway will have on future land uses of the sur-

rounding area” and as a corollary the effect of the

highway on residential and business property values;

(3) calling for more discussion of the probable im-

pact of the recommended alignment on the local area

tax base.’ Apparently all three of the suggestions of

the FHWA were incorporated by the VHD in the

final impact statement.

This case thus raises the very fundamental ques-

tion whether FHWA procedures requiring prepara-

tion of an EIS by the local state highway agency,

with communication from and cooperation of the re-

’ Parenthetically the court notes that the only one of these

suggestions relating directly to the environment is No. 2, and

in that connection how an impact statement could be pre-

pared without including an assessment of the impact on

future land uses in the surrounding area escapes one.

49a

gional FHWA, followed by review by an FHWA

“task force” at the regional level complies with

NEPA and more particularly NEPA as construed by

the Second Circuit Court of Appeals in Greene

County Planning Board v. FPC, 455 F.2d 412 (2d

Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.

Ed.2d 90 (1972). In Greene County, it will be re-

called the Second Circuit (per Kaufman, C. J.) held

that in a procedure involving the licensing of trans-

mission lines, the FPC could not properly merely

review and circulate an EIS prepared by the Power

Authority of the State of New York (PASNY, an

independent state agency interested in power devel-

opment), but had the “primary and nondelegable re-

sponsibility” to “consider environmental values ‘at

every distinctive and comprehensive stage of the

[agency’s] process.’” 455 F.2d at 420. Put another

way, has the FHWA here, as the FPC was found

to have done in Greene County, “abdicated a signifi-

cant part of the responsibiilty by substituting the

statement of [the VHD] for its own”? 455 F.2d at

420.

The federal defendants argue that the VHD is

unlike PASNY in the Greene County case and is in

no sense an “applicant or contestant.” Thus they

argue that there is no likelihood that the EIS pre-

pared by the VHD would be based upon the “self-

serving assumptions” that the Second Circuit was

particularly wary of in Greene County. In support

of this purported distinction the federal defendants

cite two United States District Court cases, National

50a

Forest Preservation Group v. Volpe, 352 F.Supp. 123

(D.Mont. 1972), and Iowa Citizens for Environ-

mental Quality, Inc. v. Volpe, 4 ERC 1755, 1759-60

(S.D. Iowa 1972), the former holding that there was

no indication that the EIS in the particular case was

“self-serving” to the local highway department and

that “It should not be presumed that states are not

concerned with the environmental problems facing

us all.” 352 F.Supp. at 127. However true this may

be, Greene County requires a different result. In

Vermont, at least, the Vermont Highway Department

has the duty, as testified to by Speaker of the House

Kennedy and by Commissioner of Highways Gray,

to follow legislative mandate in regard to proposed

highway construction, and the construction here con-

templated was legislatively mandated in 1968. Thus,

it is impossible for the Vermont Highway Depart-

ment not to be an advocate of legislatively mandated

construction and still act consistently with its duty

as a state agency. This being true, delegation of the

preparation of an EIS to the VHD raises the danger

that the EIS will reflect “self-serving assumptions”

and brings the case directly within Greene County.

The federal defendants argue that the Army Corps

of Engineers prepares its own EIS even though it

plans, designs and constructs its own projects. How-

ever, unlike the VHD, the Army Corps of Engineers

is the responsible federal agency for its projects, and

whether its statements are more apt to be impartial

than the VHD’s is immaterial. The VHD’s EIS is

bound to be “self-serving” in the Greene County

5la

sense, and, therefore, delegation to it of the FHWA’s

duty of preparation is improper. The federal defend-

ants point out that some federal agencies contract

with consulting firms to prepare a given EIS; such

a case is, however, not before the court.

It is true that the VHD will receive in the ordi-

nary course of events primary system money for

Vermont highways whether the particular highway

here proposed is built or not but this is immaterial;

the VHD will want to see that money spent where

the Vermont legislature wants it spent, and to that

extent the VHD is necessarily an advocate of the

particular project. Required as the court is to reach

this holding it is unnecessary to determine whether

highway trust funds—state or federal—are in and

of themselves necessarily inconsistent with NEPA

since they involve by definition an advance commit-

ment of vast sums of money to highway-building—

somewhere, sometime—with its many attendant im-

pacts on the environment.

The federal defendants go on to argue, neverthe-

less, that the FHWA is simply a funding agency

which does not plan, construct, design or license high-

ways, so that the state highway departments are the

real initial decision-makers. But the “major federal

action” [NEPA § 102(2)(C)] we are talking about

here is the commitment of federal money—several

million dollars’ worth—to the building of a highway

within a state or states, and the real decisionmaker

on whether such action should be taken is the FHWA.

aaa aa ei i ms a

52a

Moreover, the FHWA approves the commitment of

federal funds only when the highway proposed by

the state(s) meets federal criteria. NEPA has now

mandated that those criteria include the environ-

mental considerations which NEPA sets forth. The

detailed environmental impact statement must as

§ 102(2)(C) of the Act itself says and Greene County

explicates, “ ‘accompany the proposal through the ex-

isting agency review processes.’” 455 F.2d at 421.

Here we have the FHWA not only letting the VHD

do the draft and final EIS preparatory work, but

when the work reached final draft stage, the com-

ments on it by the reviewing board were merely per-

functory, the equivalent of an agency rubber stamp.

It is argued that this is the only practicable way for

the federal agency to handle EIS preparations, since

the individual state departments have hundreds of

employees while the federal agency has—at least in

its Montpelier office—only 14. This is, however, an

argument to take to Congress, seeking either more

funds for the conduct of the federal agency opera-

tions, a change in NEPA to permit such delegation,

or the simple authority to use its existing funds in

the preliminary exploration of environmental impacts

at the early stages of federal-state highway planning.

The final point intimated if not argued by the

federal defendants on this issue is that the specific

steps taken by them during preparation of the EIS

by the state including communication, consultation

and the field trip, when coupled with the regional

review, do for all practical purposes amount to “prep-

53a

aration” by the responsible federal agency. Accord-

ing to the testimony of defendant Kelley, however,

the Highway Department planning section prepared

the EIS in accordance with PPM 90-1. There is no

indication whatsoever that the FHWA or any of its

employees conceived, wrote or even edited any section

of or passage in the EIS. At the most there were

informal chats touching upon the subject, together

with the aforementioned field trip and subsequent

“review.” Perhaps this is the most practicable or

feasible method of handling the preparation of an

EIS under present federal and state highway agency

procedures. But it is not what is required by NEPA,

the purpose of which is to ensure that the federal

agency making the decision consider environmental

values, potential alternatives and the overall conse-

quences of the proposed action.

To require genuine FHWA preparation of an EIS

will obviously in this instance cause delay and, the

court was advised by the testimony of Commissioner

Gray, additional expense in connection with the con-

struction, for which costs continue to inflate. But as

the Court of Appeals for the District of Columbia

said in the landmark Calvert Cliffs’ Coordinating

Committee v. AEC, 146 U.S.App.D.C. 33, 449 F.2d

1109, 1128 (D.C. Cir. 1971), as quoted in Greene

County, supra, 455 F.2d at 423, “It is far more con-

sistent with the purposes of the Act to delay opera-

tion at a stage where real environmental protection

may come about than at a stage where corrective

action may be so costly as to be impossible.”

54a

II. Whether the EIS as filed was sufficient under

NEPA.

Assuming that the section of road referred to in

the EIS (from Bennington to Manchester) is all that

was required to be considered, plaintiffs argue that

the EIS is insufficient in a number of respects: (1)

that it is biased, as prepared by the VHD, as dis-

cussed under Point I above; (2) that it omits any

reference to certain areas “df significant environ-

mental sensitivity and considerable intrinsic value,”

including certain groundwater recharge areas crossed

by the proposed corridor, vegetation patterns on the

Fayville Branch of the Battenkill River, the peculiar

nature of the vegetation in the Chiselville Beaver

Pond and the unusual character of a hemlock glen

on the westernmost edge of the Lye Brook area; (3)

that it fails sufficiently to consider alternatives in-

cluding improvement to existing Route 7; and (4)

that it fails properly to weigh cost and benefits from

the proposed federal action.

This court must review the agency decision to see

that not only the procedural requirements of NEPA

have been complied with, but also that the substan-

tive result of the agency’s decision is consistent with

a “good faith” weighing of the environmental impact

of the project. Conservation Council of North Caro-

lina v. Froehlke, 473 F.2d 664, 665 (4th Cir. 1973);

Environmental Defense Fund, Ine. v. Corps of Engi-

neers, 470 F.2d 289, 298 (8th Cir. 1972), cert. de-

nied, 412 U.S. 931, 93 S.Ct. 2749, 37 L.Ed.2d 160

(1973). In other words,

55a

District Courts have an obligation to review

substantive agency decisions on the merits to

determine if they are in accord with NEPA.

The review is a limited one for the purpose

of determining whether the agency reached its

decision after a full, good faith consideration of

environmental factors made under the standards

set forth in §$101 and 102 of NEPA; and

whether the actual balance of costs and benefits

struck by the agency according to these stand-

ards was arbitrary or clearly gave insufficient

weight to environmental factors.

Environmental Defense Fund, Ine. v. Froehlke, 473

F.2d 346, 353 (8th Cir. 1972).

To meet the “good faith consideration” test, Envi-

ronmental Defense Fund, Inc. v. Corps of Engineers,

supra, 470 F.2d at 300, the agency must show that

it has adequately weighed the relevant environmental

factors in deciding whether and how to go forward

with the project. The agency itself need not show

“subjective impartiality,” i. e., it can have (indeed

as discussed below generally does have) a mandate

to achieve certain goals which conflict with the pres-

ervation of the environment. Environmental Defense

Fund, Inc. v. Corps of Engineers, supra, 470 F.2d

at 295. In the case of the FHWA and the VHD,

that goal is, of course, to build highways. But it

must be demonstrated by the agency that with regard

to the specific project for which the EIS is prepared,

the agency has weighed with “good faith considera-

tion” the environmental impact of the project and

that the agency will modify or drop the project if

56a

the environmental costs are sufficient to outweigh

the benefits of the project.

1. There is inherent bias in the EIS here in issue

in favor of the proposed highway construction and

in derogation of environmental considerations since

the VHD is charged with the duty of carrying out a

legislative mandate as indicated above. This bias is

evident in the rhapsodic prose of the Introduction to

the EIS, incorporated herein by reference and at-

tached as Appendix A. At the same time, with one

exception noted below and discussed under Point IV,

the body of the EIS evidences good faith considera-

tion of the environmental values involved insofar as

they relate to the particular segment of road con-

templated. If preparation of the EIS by the VHD is

found proper by an appellate court, contrary to this

court’s opinion that the Greene County case applies,

then this court finds the EIS in substance not to have

been biased. That is to say, the EIS demonstrates

“good faith consideration,” though not “subjective

impartiality,” and the elaborate Introduction may be

treated as so much surplusage.

2. Examination of a 1972 Land Capability Plan

of the State Planning Office furnished to the court

by stipulation after the hearing and marked hereby

as Court Exhibit 2 indicates that two possible gravel

aquifer recharge areas and one probable bedrock

aquifer recharge area are in the line of proposed con-

struction. There was testimony that salt pollution

occurring in connection with winter road mainte-

nance can have significant adverse impact upon such

57a

aquifer recharge areas. There is no direct comment

in the EIS in respect to salt pollution in these specific

recharge areas, although the EIS does discuss gen-

erally the salt pollution problem (p. 43).? A botanist

also testified as to the rather unique diversity of flora

along the Fayville Branch and in the vicinity of the

Chiselvill Beaver Pond, as well as to an unusual

hemlock glen near the Lye Brook area. The last was

commented upon in the EIS as follows:

The botanical significance of the area, because

it represents both hardwood and softwood wet-

land, is not clearly evident, nor is the rarity of

* Research indicates, however, that the major area of salt

ion concentration is a narrow band 20 to 30 feet wide along

the edge of the highway pavement. As far as the subject

project is concerned, this primary salt concentration area

would be within the highway right-of-way and would not

generally extend to landscaped areas adjacent to the pave-

ment. In selecting trees and shrubbery for landscaping care

would be taken to insure that salt resistent [sic] species were

used.

Testing of the soil and water supplies adjacent to highways

indicates that outside the primary band of influence, salt ion

concentration is generally under 250 PPM, which is the limit

set for drinkable water by the United States Public Health

Service. Since the several public and private water supplies

in the project corridor are located upwards of 0.3 mile from

the highway location, no adverse effects are anticipated from

movement of salt ions through the ground.

Environmental damage resulting from salt ion concentra-

tion in streams of rivers, either leached out of the soil from

storm runoff or carried directly by melting snow, is equally

unanticipated. Samplings from watercourses in Vermont and

elsewhere indicates that the sheer volume of water involved

reduces the soil ion concentrations to very low levels.

EIS at 43 (footnote omitted).

58a

such a combination. Almost any interface of

divergent natural conditions provides a fascinat-

ing study area and wetlands especially are rich

in plant forms, insectivore, ete. The proposed

highway, however, does not intrude on the cen-

tral marsh area. Naturalists, game biologists

and the forester who investigated the proposed

alignment did not find anything they considered

unique, rare or especially noteworthy in any way

that would be disturbed by construction.

EIS at 52.

By implication the EIS may be said similarly to

find unimportant the degree of flora diversity along

the Fayville Branch. Finally, Harrington’s Cobble,

referred to in the opinion and order accompanying

the original injunction on June 2, 1972, see 343 F.

Supp. at 767, is specifically discussed on Pages 47-51

of the EIS and in a letter dated May 21, 1972, of

Mr. Mold and Mr. Horsford, a nurseryman, reprint-

ed as Exhibit M to the EIS. (That discussion and

letter, as is the entire EIS, are hereby incorporated

in this opinion by reference.) The essence of the

consultants’ findings is contained in the following

paragraph:

A considerable number of plant forms were

observed. Many common varieties were profuse.

A few were of less general distribution but

would be considered as common locally. Still

fewer are less well distributed as to be described

as common but it was the consensus of the two

specialists that nothing they found could be clas-

sified as rare or unique and all could certainly

©) ee Soe

59a

be expected to occur nearby outside the proposed

construction area.

EIS at 49 (emphasis original). The EIS goes on to

say:

Initial two lane construction will not disturb

Harrington Cobble. With future four lane con-

struction, proper slopes and slope control meth-

ods will be employed to insure that construction

limits will not infringe on this scenic area. Wild

plants that exist there will continue to flourish.

EIS at 49-50.

The court finds specifically that there was a good

faith attempt to consider the areas of environmental

sensitivity and considerable intrinsic value lying

along the proposed construction (exclusive of the Lye

Brook backwoods area, to be discussed below in Point

III), and that, while an individual botanist or federal

judge might have concluded otherwise, there has

been no abuse of discretion in this respect; this court

cannot say the agency’s decision to proceed with con-

struction was “arbitrary or clearly gave insufficient

weight to environmental factors.” Conservation

Council of North Carolina v. Froehlke, supra, 473

F.2d at 665; Environmental Defense Fund, Inc. v.

Froehlke, supra, 473 F.2d at 353.

3. Mention is made of the various alternatives to

the proposed action, including doing nothing (not

considered feasible owing to the insufficiency of the

present highway in safety and other features) (EIS

at 5), upgrading of existing Route 7, other align-

ee Se

60a

ments and meeting traffic demands through common

carrier (bus or rail) means. These alternatives are

summarized at Pages 5 and 6 and Pages 65-71 of

the EIS, and the court finds that there was a good

faith attempt to consider the alternatives and that the

determinations of the EIS in this respect are sup-

ported by substantial evidence. The only alternative

on which evidence was presented was in reference to

improvement of existing Route 7, as to which plain-

tiffs produced evidence by Robert L. Morris, a traffic

engineer and transportation planner, on the basis of

which the court finds that projections for traffic

through 1995 can be handled on a new two-lane road.

The court finds, however, that the view of the EIS

that reconstruction of the present Route 7 is not

feasible is supported by substantial evidence, in that

the present Route 7 proceeds through the center of

several towns and villages and such reconstruction

would not meet current highway design standards.

To the extent that the EIS here relates to two-lane

construction only, it is, subject to the exceptions above

and below set forth, found to be sufficient. Before an

additional two lanes may be built, however, a new

EIS must be filed, the court finding specifically that

the EIS is insufficient to support four-lane construc-

tion, within the reasonably foreseeable future since

no present need therefor is demonstrated.

4. An analysis of costs and benefits is required by

42 U.S.C. § 4332(2)(C) (iv) and (v). “The com-

plete impact statement must contain more than a

catalog of environmental facts, however. The agency

6la

must also ‘explicate fully its course of inquiry, its

analysis and its reasoning.’” Environmental Defense

Fund, Inc. v. Froehlke, supra, 473 F.2d at 351 (cita-

tions omitted). Cf. Calvert Cliffs’ Coordinating Com-

mittee v. AEC, supra, 449 F.2d at 1114. See gen-

erally Note, Evolving Judicial Standards under the

Environmental Policy Act and the Challenge of the

Alaska Pipeline, 81 Yale L.J. 1592, 1600 (1972).

The EIS refers to benefits by “economic gain,” by

increasing opportunities for people to enjoy the

beauty and uniqueness of the environment through

greater accessibility to it, and by safety to the public.

The court finds that the EIS prediction of “economic

gain” to the area by providing for fast, safe and effi-

cient transportation “through this important eco-

nomic corridor” (emphasis supplied) is not support-

ed by the evidence; there is no showing that any

greater number of travelers will stop to patronize

local business than do now—indeed, there is every

reason to suppose that fewer of them will do so, since

they will more speedily pass “through” this corridor.

To the extent that the availability of this highway

will promote business, industry, vacation homes, or

additional population growth in the area of the high-

way, there is no indication whatsoever in the EIS

that such growth will be of economic benefit or will

constitute economic gain to the area. The proposed

construction is of limited access, and there is no show-

ing that it will increase opportunities for people to

enjoy the environment except to the extent that auto-

mobile passengers may view scenery at relatively high

62a

rates of speed or certain areas off of interchange

points may be made slightly more accessible time-

wise to tourists or visitors from Vermont, other states

or Canada. The court finds, however, that the safety

conclusions of the EIS are supported by substantial

evidence; the EIS indicates that 90 per cent of the

present highway is in the bad to poor safety category.

The Introduction to the EIS which is attached

hereto in its entirely [sic] as Appendix A does repre-

sent a weighing of benefits and losses on the basis of

which all highway construction through any area

could be justified. These are in many ways legisla-

tive considerations which a Vermont legislature

might conceivably answer differently in 1973 than it

did in 1968 when it adopted No. 379 of the Acts of

1967 Adjourned Session, authorizing the proposed

construction. It may be noted, however, that the

Vermont legislature has taken steps to regulate eco-

nomic or population growth in ways other than by

calling a halt to highway construction, e. g., by adop-

tion of Act 250, 10 V.S.A. $6001 et seq. (Supp.

1971), regulating land development and permitting

local zoning, etc., see Walter, The Law of the Land:

Development Legislation in Maine and Vermont, 23

Me.L.Rev. 315 (1971), or of Vt.Stat.Anno., Act No.

81 (1973), authorizing capital gains taxes on land

sales. Since remand is required for findings to be

made by the responsible federal agency, however, a

more specific weighing of costs and benefits should

ensue, the present EIS containing no reference, for

example, to the cost of the highway, and no attempt

ee oe

63a

to place a dollar figure on economic and environ-

mental harm and benefit caused by the highway.

Note, Evolving Judicial Standards, supra, 81 Yale

L.J. at 1600-01.

Ill. Whether the Bennington to Manchester seg-

ment of highway is part of a larger proposal for an

improved Route 7 or “superhighway” in Connecticut,

Massachusetts and Vermont so as to require an EIS

for the entire length of Route 7, rather than merely

for the particular segment here covered.

Considerable testimony was presented by the de-

fendants from both federal and state highway offi-

cials from each of the three involved states that there

is no overall plan for the development of Route 7

into a four-lane expressway or superhighway from

Norwalk, Connecticut, to Burlington, Vermont. At

the same time there is considerable evidence that

each of the three states is contemplating or has al-

ready constructed an expressway in a number of seg-

ments along the Route 7 corridor. In Vermont a

Wallingford to Rutland segment has been built, the

Bennington-Manchester section and the Wallingford

By-Pass are presently planned or programmed, but

the segment from Rutland to Burlington is only un-

der study. In Massachusetts except for the Route 7

By-Pass all proposals for Route 7 improvement are

temporarily suspended until a regional transporta-

tion study is developed by the Berkshire County Re-

gional Planning Commission, but such proposals have

been made. In Connecticut there are no major im-

provement sections planned north of New Milford,

64a

some 40 miles from the Massachusetts border, but

south of New Milford construction or planning is in

process. See Committee to Stop Route 7 v. Volpe,

346 F.Supp. 731 (D.Conn. 1972). The court finds

that there is no overall federal plan for improve-

ment of the Route 7 corridor in the three

states into a divided limited access superhighway.

The court finds, however, that each of the three

states’ highway departments are looking toward this

end as possible of accomplishment with legislative

and federal approval over a long-range period of

time, with federal approval taking place on an ad

hoc basis at the division engineer level.* The court

finds, moreover, on the basis of the testimony of Mr.

Morris that the construction of isolated sections

along the corridor will induce traffic, tending further

to require additional construction beyond presently

planned termini. The court further finds that federal

highway officials have knowledge of the overall plan-

ning process by state officials and to a considerable

extent work in “partnership” with state officials in

connection therewith, and that each of the three

states has from time to time taken advantage of

federal highway planning money specifically in con-

nection with Route 7 improvement.

The question then becomes whether under NEPA

and the Intergovernmental Cooperation Act, 42

U.S.C. § 4231, an overall EIS may be required at

any time, or whether particular segments of a high-

*The FHWA Vermont division engineer, Mr. Kelley, testi-

fied that “We are not dictators, we are salesmen.” One may

inquire what it is he is “selling.”

65a

way may be constructed with an EIS required only

as to those segments. This question is plainly one

which goes right to the essence of the traditional

federal-state highway planning process. It is not un-

like, though of considerably less importance on an

individual superhighway basis, the question before

the United States Court of Appeals for the District

of Columbia in the recent breeder-reactor case, Sci-

entists’ Institute for Public Information, Inc. v. AEC,

481 F.2d 1079 No. 72-1331 (D.C. Cir., June 12,

1973). There the court recognized that the liquid

metal fast breeder reactor program was still in the

research and development stage and no specific im-

plementing action which would significantly affect

the environment had yet been taken. Nevertheless,

it required a detailed NEPA statement in view of

the magnitude of the ongoing federal investment in

the program, the controversial environmental effects

attendant upon future use of breeder reactors, the -

accelerated pace under which the program has been

moving from research to practical implementation,

and the manner in which the investment is likely to

restrict future alternatives. NEPA itself requires

recognition of the “long-range character of environ-

mental problems ... .” 42 U.S.C. § 4332(2)(E).

So, too, the Senate Report indicates that NEPA was

designed to prevent the making of “[i]mportant de-

cisions concerning the use and shape of man’s future

environment ... in small but steady increments

which perpetuate rather than avoid the recognized

mistakes of previous decades.” S.Rep. No. 91-296,

66a

91st Cong., Ist Sess. 5 (1969), quoted in Scientists’

Institute for Public Information v. AEC, supra, 481

F.2d at 1090. Seeking to implement the Act, the

Council on Environmental Quality (CEQ) has indi-

cated that in certain instances “broad program state-

ments will be appropriate, assessing . . . the overall

impact of a... chain of contemplated projects... .”

Memorandum to Federal Agencies on Procedures for

Improving Environmental Impact Statements, 3 Env.

L.Rep. 82, 87 (1972). Where “irreversible and irre-

trievable commitments of resources,” 42 U.S.C.

§ 4332(2)(C)(v), have been made in constructing

major segments of an expressway along the line of

an existing highway route, subsequent NEPA state-

ments for particular segments become, in the words

of Calvert Cliffs’ Coordinating Committee v. AEC,

supra, a “hollow exercise.” 449 F.2d at 1128. Cf.

Sierra Club v. Froehlke, 359 F.Supp. 1289 (S.D.

Tex., Feb. 16, 1973) (EIS for Wallisville Reservoir

as part of Trinity River project insufficient; EIS for

entire project required). ‘“Super-highways” were

cited on the list of modern phenomena threatening

the environment as to which legislation had been in-

troduced that was drawn on during the considera-

tion of NEPA. See 115 Cong.Rec. 29068 & n. 5

(1969) (statement of Sen. Jackson). An EIS may

be of importance, moreover, not just to the decision-

makers within the state highway departments and

the federal highway bureaucracy, Monroe County

Conservation Council, Inc. v. Volpe, 472 F.2d 693,

697 (2d Cir. 1972), but also to the Congress and the

67a

purpose of NEPA not to be overlooked. Cf. National

Resources Defense Council, Inc. v. Morton, 148 U.S.

App.D.C. 5, 458 F.2d 827, 833 (1972); Committee

for Nuclear Responsibility, Inc. v. Seaborg, 149 U.S.

App.D.C. 380, 463 F.2d 783 (1971). See also Hanly

v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert.

denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974

(1973); Hanly v. Mitchell, 460 F.2d 640 (2d Cir.),

cert. denied, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d

256 (1972).

Of course an overall EIS for all of Route 7 would

have one major consideration in mind, whether a

superhighway is environmentally and otherwise the

most viable alternative. Since the very agency which

would be considering this derives its funds from high-

way tax money and is committed to the development

of “long-range highway plans and programs” under

its enabling legislation, 23 U.S.C. § 134(a), however,

one would suppose that the ultimate EIS may not be

as objectively formulated as might be hoped for. In-

deed, one would go so far as to suggest that perhaps

the very existence of so-called highway “trust funds,”

usable only for highway construction and not other

forms of mass transportation is in a very funda-

mental sense inconsistent with the NEPA require-

ments that other alternatives be considered. 42

U.S.C. § 4332(2)(C) (iii). Be this as it may, we

have to deal with the here and now, and here we are

once again with environmental consideration entrust-

68a

ed to departments with promotional aims.* Cf. Morn-

ingside Renewal Council, Inc. v. AEC, 482 F.2d 234,

at 239 (2d Cir., 1973), (dissenting opinion).

On the basis of the court’s findings of fact and

conclusions of law above set forth, the court would

attach a condition to proceeding under the present

EIS (if that is permitted by any final order of court)

in respect to the Bennirzvton-Manchester segment

and the construction of two lanes thereof (hereby

expressly found to be needed for local purposes) the

filing of an overall EIS by the FHWA in respect to

the entire Route 7 corridor within one year from

any such final order of court. If this opinion is sus-

tained on appeal, then the FHWA must make an

overall impact statement within six months from

issuance of the EIS ordered in Section I above. This

order is made independently on the additional basis

of the requirement of the Intergovernmental Cooper-

ation Act of 1968, 42 U.S.C. § 4231 et seq., that “All

* See Developments in Environmental! Law, 3 E.L.R. 50001,

50008 (1973):

... for the most part the agencies which must do the “full

good faith” balancing of economic and social costs against

environmental costs are generally structured to be ad-

vocates for economic expansion. As long as agencies are

left to do the balancing, and as long as they have a dual

mandate of environmental protection and economic de-

velopment in their paticular field—-for example, power

growth for the FPC, nuclear development for the AEC,

or flood containment for the Army Corps of Engineers—

is not the environment bound to come out on the short

end?

(Emphasis original.)

69a

viewpoints—national, regional, State, and local—

shall, to the extent possible, be fully considered and

taken into account in planning Federal or federally

assisted development programs and projects.” 42

U.S.C. § 4231(b) (emphasis supplied).

IV. Whether there has been compliance with § 4

(f) of the DOT Act of 1966, 49 U.S.C. § 1653(f)

and 23 U.S.C. § 138.

Section 4(f) declares it a national policy that spe-

cial effort shall be made to preserve the natural

beauty of the countryside and public park and recre-

ation lands, wildlife and waterfowl] refuges and his-

toric sites. After August 23, 1968, the Secretary of

Transportation “shall not approve” any project which

requires the use of any publicly owned land from

such an area if “of national, State, or local signifi-

cance as determined by the Federal, State, or local

officials having jurisdiction thereof’ unless there is

‘no feasible and prudent alternative’ and there is

all possible planning to “minimize harm.”

A substantial section of the Green Mountain Na-

tional Forest, an area known as the Lye Brook Back-

woods Area, lies in Bennington County easterly of

Arlington and Manchester. This area of about 11,-

000 acres is, according to the United States Forest

Service Multiple Use Management Plaa of February,

1971, “a remote area with no permanent roads and

includes Bourne Pond and a portion of the Appala-

chian Trail.” Plaintiff’s Ex. 32. “It is,” according

to the same exhibit, “a special area set aside for

70a

those seeking solitude” and is “a place where one can

get away in a near natural forest environment to

enjoy nature.” Legislation was introduced by Ver-

mont’s senior Senator and others to declare this a

Wild Area, and on October 13, 1972, the Regional

Forester advised the Forest Supervisor of the Green

Mountain National Forest to place the Lye Brook

Backwoods Area “in a ‘no development’ status” until

the outcome of the pending legislation is determined.

Plaintiff’s Ex. 36. As late as March 7, 1973, the

Forest Supervisor indicated that he did not know

whether the proposed Route 7 project would actually

enter or cross any National Forest land, although he

indicated that it may cross a very small portion of

this land along the westernmost boundary of it.

Plaintiff’s Ex. 37.

On the other hand, the EIS contains in Exhibit P

letters from the Vermont National Forest Supervisor

to the VHD dated December 23, 1970, February 11,

1971, and May 15, 1972, that these lands were for

timber production, watershed protection and related

activities and that there were as of December 23,

1970, “no recreational facilities contemplated.” The

Forest Supervisor, Floyd Marita, testified that his

office had developed a plan which would locate the

western boundary of the wilderness area at the east-

ern boundary of the proposed highway. To date there

has been no determination pursuant to § 4(f) by the

National Forest Service. Despite the large amount

of acreage in the Lye Brook Backwoods area, such

a determination the court rules necessary, regardless

JTla

whether the western boundary of that area is ulti-

mately fixed administratively or legislatively to be

coincident with the easterly boundary of the proposed

highway project. As the Ninth Circuit said in Brooks

v. Volpe, 460 F.2d 1193, 1194 (9th Cir. 1972), con-

struing the word “use” in the complementary § 18

(a) of the Federal-Aid Highway Act of 1968, 23

U.S.C. $138: “The word ‘use’ is to be construed

broadly in favor of environmental statements in cases

in which environmental impact appears to be a sub-

stantial question. [Cases cited.] Application of this

principle in the present case requires that the en-

circlement of the Denny Creek Campground by the

challenged freeway be recognized as a ‘use’ of that

campground ....” So, too, the bordering of the Lye

Brook Backwoods Area by a highway would consti-

tute the “use” of that land within the prohibitory

meaning of $4(f) as well as a “use” within the

Federal Aid Highway Act of 1968 relied upon by the

Ninth Circuit above, which is in the same language

and statutorily complementary to §4(f). Since a

new EIS is ordered in any event, there should be

ample time and opportunity to pursue all § 4(f)

procedures.

It is ordered that the injunction issued on October

26, 1972, be and it is hereby continued in effect pend-

ing receipt of a sufficient environmental impact state-

ment prepared by the responsible federal agency, to

wit, the FHWA.

72a

APPENDIX A

INTRODUCTION

This is the first Environmental Impact Statement

to be prepared for a highway project of major pro-

portions in Vermont.

In its presentation, and in the belief that there

will be more such statements developed in the near

future, the authors wish to present for consideration,

especially to those for whom this represents an ini-

tial contact with the state, some general comments

which might be construed as peripheral to the normal

scope of an environmental] impact statement.

Many of these facts and issues will be found in

only slightly altered form and detail, at the core of

almost every E.I.S. prepared concerning Vermont

highways.

The environmental issues raised, particularly, are

going to be raised again in other areas because of

the marked similarity of terrain and socio-economic

pattern that has evolved throughout most of the state.

Vermont encompasses 9,609 square miles of essen-

tially rugged to mountainous terrain. At the time of

the Civil War the population was just over 300

thousafid individuals, quite generally distributed over

the entire area excepting the highest mountain

ranges. These people lived on family subsistence

farms, a type of farm almost unheard of today.

Their entire existence was scratched tenaciously from

the boulder strewn soil and land was valuable pri-

marily when something could be grown on it, taken

73a

from it, or cattle or sheep could be grazed upon it.

If the Vermont Farmer had a beautiful view from

his west mowing of the hazy river valley and the

mountains beyond, he scarcely had time to notice or

enjoy it because he labored almost constantly through

the daylight hours of the short summers to provide

for “his own”.

At that time the State was scarcely 30% forested,

the lowlands having been cleared for agricultural

activity and the upper slopes through lumbering

operations and the manufacture of lye and charcoal.

Many old photos of Vermont communities show these

denuded hills. Deer, bear, beaver and some lesser

forms of wildlife were on the verge of extinction

from relentless pursuit for their meat or hides. How-

ever, from the decade preceding the turn of the

century through World War I and the “Roaring

20’s”" a younger generation which sought better

things in life than the isolation and privation of the

“old place”, began a seemingly inexorable migration

out of the hills, many away from the state altogether.

Indeed, in 1860 98% of Vermonters lived rurally.

By the late 1930’s that figure had declined to 65.7‘.

This mass exodus of over 30% of the population from

rural countryside to urban area had a profound

effect on the appearance of the terrain. Farm after

countless farm followed in death the faithful hands

that had cultivated it. The forests, always ready to

reinvade in the absence of mower or cultivator, crept

across pasture, then meadow, finally to bury decay-

ing house and barn in tangles of foilage. Wildlife

74a

species, with management and exposed to an abund-

ance of new cover, again flourished. Now, in the

1970’s a State once 60-odd percent open has become

70-odd percent forested and though the population

has grown to almost 445,000 (somewhat less than

the City of Denver, Colorado) it still has the third

from lowest population of any state in the nation

(statistical density of 21.6 persons per square mile).

The comparatively few surviving farms are now

dairy or*fruit producers and the economy has swung

strongly toward tourism. Along with moderate com-

mercial and light industrial activity, financial inter-

ests from outside the State have created ski areas on

many of the peaks, while lodges, condominiums and

seasonal dwellings sprout around their bases. The

old farmsteads, so recently abandoned by their sons

and daughters are now being eagerly sought by

strangers, not as farms but for homes. Developers

ave riding a tide of retirees and escapees from the

large cities who have suddenly discovered that these

seemingly endless cool green valleys offer quiet and

solace and may, perchance, be one of the last bastions

of the individualist, the really free man.

The foregoing is intended to illustrate two things;

one, the unique combination of heritage and present

activity that has created the Vermont of the 1970's

and two, that our natural environment has changed

radically in the past seventy years, is changing every

day and, in all likelihood, will continue to change

again as radically in the next half hundred years.

In this respect, we have neither inherited an untarn-

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ished environment, unchanged and unchanging, from

ages past, nor are we destined to pass it on un-

marked by our own needs and use.

No argument here with the naturalist who rushes

to defend his wetland and wood; no argument with

the barrister who decries the visual and emotional

hurt of his client at the hands of “progress”; no

argument with those who seek to cherish and con-

serve the incredible beauty which they so recently

have discovered.

This, is the very heart and core of the whole prob-

lem. Vermont is beautiful, breathtakingly so at all

seasons and in all her guises. Scarcely an acre exists

anywhere in the whole state which could not be de-

scribed as encompassing some intrinsic beauty.

As for the highway project in question, the whole

point is that there is no other “more acceptable”

alignment somewhere else for a location of this

needed and required highway. The very narrow

Vermont valley through which the corridor is forced

to run possesses every bit the beauty, the flora, the

fauna on its western slopes as on its eastern slopes.

Every man has his special site, his favorite stream

or his quiet forest glade. Unfortunately, there is no

alignment, east or west, which can possibly avoid all

those things held in individual high esteem by our

citizens. If the easterly side is spared, then the

westerly side is not—one group of distressed indi-

viduals traded for another.

So many people, abraded raw from years of an

urban existence, upon acquiring proprietorship and

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citizenship in this rural atmosphere have also

acquired a strongly defensive and protective attitude

toward their new surroundings (and rightly so).

Nevertheless, Vermont has a tradition of accommo-

dating the newcomer. Except for the elements, the

State has always offered a politely reserved hos-

pitality. Are we now about to erect a portctllis at

every entrance? Are we to refuse tens and tens of

uncounted thousands of visitors and residents alike

the amenity of decent automotive transportation?

Are we to continue to subject ourselves and our

guests to a witless spectre of carnage of our deficient

highways tantamount to deliberate murder?

The real issue is not “does a better line exist’, it

is, “will the highway be built at all.”

Only a little over one percent of the State’s total

area is presently dedicated to highway purposes.

That includes all city and village streets and all

town highways, as well as the entire State Highway

System. And of the fourteen counties in the State,

Bennington County is second only to Essex in hav-

ing the lowest highway mileage per square mile of

area. The additional mileage contemplated would

change that value only an imperceptible fraction.

From its centerline the highway naturally bulks

large in perspective, but from severai hundred feet

away this highway would be visually lost in the

woods.

In the construction of 320 miles of interstate high-

way from Vermont-Massachusetts Border up the

Connecticut River, across Central Vermont, and

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northerly through the Champlain Valley to the Ca-

nadian Line through some of the most incredibly

spectacular scenery, natural areas, rural and urban

settings, the equal of, in every respect, the Benning-

ton area, no one has come forth to decry any result-

ing overwhelming damage, irreversible commitment

of resources, destruction of unique or fragile areas,

or the like. This is not to say that there has been

no damage at all, but it does seem to verify that dec-

radation of the human or natural environment is

not a serious or significant problem attending high-

way construction through rural or remote areas. The

overwhelming benefits have been recognized by almost

everyone familiar with the old route.

If an alternative exists it is basically the alterna-

tive of sacrificing the explicitly human environment

(homes, businesses, community values, etc.) which

are strongly polarized along the existing US 7 cor-

ridor as opposed to minimal use of the natural or

remote areas which closely border it on both sides.

Twenty-two million people live in a belt approxi-

mately 50 miles wide stretching along the Atlantic

Coast from the northerly limits of the greater Boston

metropolitan area to central New Jersey. As the

ravenous demands of urbanization consume the al-

ready meager reserves of open space in that belt,

that mass of humanity is going to be forced further

and further afield in ever increasing numbers in

recreational pursuits and for part time and full time

living accommodations. Either we plan and build

our transportation system now to accommodate this

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increase or we shall face greater congestion in the

future. Vermont may well, like it or not, become

the one major four season recreational and rural

living center for the entire northeast. The natural

and scenic areas, the Beaver Meadows and all the

rest hanging in the balance which the public needs

so desperately today, may well have been quietly

nibbled away by private interests. As a matter of pre-

cise fact, to demonstrate this point, a commercial

housing development is presently underway imme-

diately adjacent to the northern perimeter of the

Beaver Meadows flowage. More harm to the sanc-

tuary of beaver dams and unique surroundings may

generate from thi

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