Petition for Writ of Certiorari — Bradford Township v. Illinois State Toll Highway Authority

Supreme Court brief1972

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In THE

Supreme Court of the United States

Ocroser Term, 1972 ?

No. 72-469

BRADFORD TOWNSHIP, et al.,

Petitioners, :

ILLINOIS STATE TOLL HIGHWAY AUTHORITY, et al,

Respondents. :

PETITION FOR WRIT OF CERTIORARI TO THE :

UNITED STATES COURT OF APPEALS ‘i

FOR THE SEVENTH CIRCUIT :

DAVID LINCOLN ADER, Esq.

233 East Walton Place

Chicago, Illinois 60611

312-337-6285 or 312-726-4904

Attorney for Petitioners

MIDWEST LAW PRINTING CO.. CHICAGO 60601. FINANCIAL 6-3988

TABLE OF CONTENTS

PAGE

DATE OF JUDGMENT SOUGHT TO BE RE-

VIEWED AND CHARACTER OF PROCEED-

INGS BELOW 1

THE OPINION BELOW .. 2

JURISDICTION 2

THE STATUTES INVOLVED 3

QUESTIONS PRESENTED 3

STATEMENT OF THE CASE ee? ae

REASONS FOR GRANTING THE WRIT ............ 10

The Appellate Court erred in ruling that a vio-

lation of the Illinois Meetings of Public Agencies

Act which denied Petitioners their opportunity

to defend their right to a protected and healthful

environment did not violate the due process

clause of the United States Constitution and the

decision of the Appellate Court contravenes nu-

merous and repeated decisions of this Court and

conflicts with decisions of the Sixth and Ninth

Cireuits and the District Court for the Eastern

District of Pennsylvania in holding that a state

Agency’s Act resulting in the taking or damaging

of land and the general environment in violation

of the procedural process specified by the State

Sovereign is not a violation of the due process

clause of the Fourteenth Amendment to the Unit-

ec States Constitution ..._ decidua ee,

The Seventh Circuit erred in holding that the

deprivation of a federally recognized right by a

State Agency acting in violation of law is not a

violation of due process guaranteed by the Four-

teenth Amendment to the United States Consti-

tution and Section 1983 of the Federal Civil

NE SUI sttieuninndicsiMinlacnditniashnemadacscraee

The Court of Appeals for the Seventh Circuit

contravened repeated holdings of this Court that

a violation of state law can be redressed in fed-

eral court where the federal guarantee to due

process is also violated thereby —...0..00.0

IL.

The Court of Appeals for the Seventh Circuit

erred in not enforcing Petitioners’ rights to a

protected, enhanced and healthful environment

under §4331(c) of the National Environmental

Policy Act and in not enforcing Respondents’

duties to protect and enhance the environment

under §4331(a) and (c) of the National Environ-

mental Policy Act in contravention of the plain

meaning of those provisions and the Court of

Appeals for the Seventh Circuit by not enforcing

§4331(a) and (c) of the National Environmental

Policy Act disregarded rules established by this

court for statutory interpretation, nullified pro-

visions of an Act of Congress, ignored the intent

of Congress, and placed itself in conflict with de-

cisions of the First, Third, Sixth, Tenth and Dis-

trict of Columbia Circuits, and the District Court

for New Jersey, and its own precedent .................. 21

CONCLUSION 33

APPENDIX ... la-22a

CITATIONS

Cases

Bank of Columbia v. Okely, 4 Wheat. (17 U.S.) 235

(1819) 15

Boom Co. v. Patterson, 98 U.S. 403 (1878) -...........-------- 13

Carter’s Heirs v. Cutting & Wife, 12 U.S. (8 Cran.)

251 (1814) 26

Chicago, B. & Q. R.R. Co. v. Chicago, 166 U.S. 226, 241

(1897) 13, 14, 18

Cuyahoga River Power Co. v. City of Akron, 240 U.S.

462 (1916) i sindlaeiahessdeaaiesnnsaltbiesaivenoaaidianiaies 14

Department of Public Works v. Ryan, 357 Ill. 150

(1934) 18

Donovan v. Mobley, 291 F. Supp. 930 (C.D. Calif. 1968)

modified on other grounds, 433 F. 2d 738 (9th Cir.

1970) 15

Environmental Defense Fund v. Corps of Engineers

of the U.S. Army, 325 F. Supp. 749 (E.D. Ark.

1971) .... 24

Ex Parte Public Bank, 278 U.S. 101 (1928) ~................. 25

Fegan v. Lykes Bros. 8.S. Co., -198 La. 312, 3 So. 2d

632 (1941) 26

i at Connie i Sa FORO ION GOL CALA E I ION

PT RRR eae

+. if

SSRI MRD SSSE ono

aN Ee. ft BS ute 3 AEN

De ant

Green Street Association v. Daley, 373 F. 2d 1 (7th Cir.

1967) 11, 17

Hagar v. Reclamation District No. 108, 111 U.S. 701

1884) - 16

Harrison-Halsted Community Group, Ine. v. Housing

and Home Finance Agency, 310 F. 2d 99 (7th Cir,

ea aan SNe NE ee ee 17

Henry v. U.S., 251 U.S. 393 (1919) ooo 6

Hilliard v. U.S., 310 F. 2d 631 (6th Cir. 1962) .. ... &

Holden v. Hardy, 169 U.S. 366 (1898) 00... 18

Izaak Walton League v. Macchia, 2 E.R.C. 1661 (D.N.J.

MINI cick wnighic \ocsnoseenicans dines eaigebegndanaraconatcnc exec 29

Johnson v. U.S., 163 Fed. 30 (1st Cir. SD witicieccesens 28

McQueary v. Laird, 449 F. 2d 608 (10th Cir. 5971} ........ 93

Mary F. Barnett, The, 279 Fed. 329 (3rd Cir. 1922) ... 9

Missouri Pacifie Ry. Co. v. Humes, 115 U.S. 512 (1885) 15

Monroe v. Pape, 365 U.S. 167 (1960) . 19

Montclair v. Ramsdell, 107 U.S. 147 na 25, 26

Moragne v. States Marine Lines, 398 U.S. 375 (1970) .. 28

Mosher v. City of Phoenix, 287 U.S. 29 (1932) .... 12, 13, 19

Murphy v. Chicago League Ball Club, 221 Ill. App.

cation Se ea Le 26

Niagara Fire Extinguisher Co. v. Hibbard, 179 Fed.

844 (7th Cir. 1910) ...... oo 26

Powelton Civic Home Owners Assoc. v. Department of

Housing and Urban Development, 284 F. Supp. 809

(E.D. Pen. 1968) 0 17

Progress Development Group v. Mitchell, 286 F. 2d

222 (7th Cir. 1961) .. 18, 20

San Antonio Conservation Society v. Texas Highway

Department, 400 U.S. 968 ( 1970) 22

Smyth v. Ames, 169 U.S. 466 (1898) eS

State v. Bruton, 383 S.W. 2d 525 (Md. Sup. Ct. 1964) .. 26

et Me 0 eT FE

Steele v. L. & N.R. Co., 323 U.S. 192 (1944) .............-.--- 32

Tag v. Rogers, 267 F. 2d 664 (D.C. Cir. 1959) ................ 28

Town of Edgewater v. Liebhardt, 32 Colo. 307, 76 P.

366 (1904) 26

U.S. v. Cruikshank, 92 U.S. 542 (1875) 15

U.S. v. Fisher, 109 U.S. 143 (1883) 25

Van Beeck v. Sabine Towing Co., Inc., 300 U.S. 342

(1937) 28

Yan Camp & Sons v. American Can Co., 278 U.S. 245

(1928) 25, 26

Weaver v. Pennsylvania-Ohio Power & Light Co., 10

F, 2d 759 (6th Cir. 1926) 15

Williams v. Kaestner, 332 S.W. 2d 21 (Mo. Ct. App.

1960) " 26

Wolf v. Colorado, 338 U.S. 25 (1949) ...22.2.2.2.2...-.eoeeeeoee 18

Other Authorities

Bouvier’s Law Dictionary Unabridged (8th ed.) .......... 26

Congressional Record, December 20, 1969, p. 40419 ..... 27

Senate Report 91-351, 91st Cong., Ist Sess. 37 (1969) .. 28

Statutes

Vol. 7, p. 7431, Title 28 U.S.C., Ch. 3, §46(a)(b)(d) .... loa

Vol. 7, p. 7562, Title 28 U.S.C., Ch. 83, §1291 ................ lda

Vol. 7, p. 7560, Title 28 U.S.C., Ch. 81, §1254(1) -........... lda

Vol. 7, p. 7636, Title 28 U.S.C., Ch. 133, §2101(¢) ........ l6a

Vol. 7, p. 7702, Title 28 U.S.C., Appendix, Rules of Ap-

pellate Procedure 16a

Vol. 7, p. 7566, Title 28 U.S.C., Ch. 85, §1331(A) .......... 17a

Vol. 7, p. 7571, Title 28 U.S.C., Ch. 85, §1343(4) 2.02... 18a

Vol. 9, p. 10657, Title 42 U.S.C., Ch. 55, Sub-Ch. I,

§4321 24, 18a

Vol. 9, p. 10664-5, Title 42 U.S.C., Ch. 55, Sub-Ch. §4331

(a) (b)(¢e) 11, 18, 21, 22, 23, 24, 26, 27, 1%

Vol. 9, p. 10669, Title 42 U.S.C., Ch. 56, §437 1(b) (1) (2)

21, 25, 27, Xe

Vol. 9, p. 10283, Title 42 U.S.C., Ch. 21, Sub-Ch. I,

OU iphones enn rte abo 18, 20, 20a

Fourteenth Amendment, United States Constitution,

§1 _—

Article XI, Illinois Constitution of 1970, §2 Qa

pametesebendpuabiaieas 12, 2la

Constitutions

U. S. Const., Amendment XIV ................ .. 15, 18 9

In THE

Supreme Court of the Gnited States

Octoser Term, 1972

No.

BRADFORD TOWNSHIP, et al.,

Petitioners,

vs.

ILLINOIS STATE TOLL HIGHWAY AUTHORITY, et al.

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

[All italics ours; (App.) means Appendix to this Peti-

tion; (R. App.) means Appendix from Court of Appeals.]

Petitioners are comprised of four Townships, 39 indi-

viduals who reside in the area through which the pro-

posed Illinois Toll Highway is planned to cross and an

unincorporated association of residents and land owners

afie

in that same area affected by the proposed construction,

They pray that a Writ of Certiorari issue to review th

judgment of the United States Court of Appeals for th:

Seventh Cireuit entered in this cause dismissing Pet.

tioners’ Complaint for failure to state a claim upon which

relief can be granted and which judgment was enterej

and became final on June 22, 1972 by affirmance of the

District Court’s decision dismissing Petitioners’ Com.

plaint for failure to state a cause of action upon whid

relief can be granted (App. 1 et seq.).

THE OPINION BELOW.

The opinion of the United States Court of Appeals for

the Seventh Circuit is not reported at the present time.

JURISDICTION.

The judgment of the United States Court of Appeals

for the Seventh Circuit was entered and became final on

June 22, 1972 (App. 1 et seq.). The jurisdiction of this

Court is invoked under provisions of (1254 of the Judicial

Code (28 U.S.C. $1254). (App. 15a).

The various statutes involved are listed in the index

and set forth in the appendix.

QUESTIONS PRESENTED.

1. Whether the Court of Appeals erred in holding that

Petitioners were not denied due process of law when the

Illinois State Toll Highway Authority started damaging

and destroying their environment by building a tollway

extension in violation of Petitioners’ right to a protected

and healthful environment without holding the public

meetings required by state law at which the decision to

build and to finance the extension should have been made.

9. Whether the Appellate Court erred in holding See-

tion 4331 of the National Environmental Policy Act to be

ineffective and in dismissing Petitioners’ complaint based

thereon for a failure to state a cause of action, in con-

travention of the clear language of the provision which

bestows rights upon Petitioners and responsibilities upon

Respondents.

i hi ti ae

PEPER Hest

wrrnr

tei ae ee ae

atin

STATEMENT OF THE CASE.

This appeal arises from a civil action brought in th

United States District Court for the Northern Distric

of Illinois under 28 U.S.C. §1331 and §1343(4) by Peti.

tioners, Plaintiffs below, against Defendant-Respondent

Authority, its board of directors, including ex officis

officers, and its executive administrator, to enjoin them

from constructing an extension to the East-West Tol

Highway.”

The extension is planned to run west from Aurora,

Illinois, to the outskirts of Rock Falls, Illinois. It wil

run diagonally from Aurora to the southern outskirts of

De Kalb; it then parallels Alternate U.S. 30 to Rochelle,

and proceeds diagonally to Dixon, Sterling and Rock

Falls (R. App. 3, 7). This trapezoidal route is referred

to by the Toll Highway Authority as a “diagonal curve”

The extension is 69 miles long. As Petitioners have a)

leged in their Complaint below, the construction will com.

pletely destroy many of the finest agricultural acres is

the nation. The majority of these acres could be pre

served if the toll highway extension were buiit varalle

to section lines rather than on the diagonal curve whic

will maximize severance and isolation of land. The p-vsent

proposal removes 3,361 acres by severance (Ro App. 7).

The present estimated isolation is 2,102 acres (Rt. App.)

The proposed extension itself consumes 2.565 acres (App.

7). The construction of this extension will close loca!

roads and disrupt social and emergency services.

©) Petitioners’ Complaint below was dixmiwed on Respondents’

motion to dismiss the Complaint and, therefore, under Mosher +

City of Phoeniz, 287 U.S. 29 (1932), the allegations of the Com

plaint are taken as true.

i eeTlUlUlUmmUOUDe

afin

The present plans for the tollway compel the closing of

pumerous local roads which are now used by emergency

vehicles and all types of social service vehicles (R. App.

1, 13). The indiscriminate closing of these roads, render-

ing residents in the area inaccessible to ambulance, fire

and police protection, will give rise to unhealthy and un-

safe conditions (R. App. 1, 13).

and animals, is set forth in the Complaint (R. App. 45,

12, 13). This air pollution is caused not merely by the

presently existing traffic, but mostly by traffie generated

as the direct result of the extension. The traffie and

revenue report of Defendant Toll Highway Authority

declares that a major portion of the traffic using the

extension will be traffic which the construction of the

extension itself generates, (termed “generated traffic”),

which would not otherwise exist on any road (R. App. 6).

The same traffic and revenue report states that long dis-

tance traffic has been taken by 1-80, a new limited-access

highway, and that only short distance commuter traffic

remains for the extension in addition to the traffie of a

generated nature. Interstate 80 is a free highway which

also runs East and West, and is only a short distance to

the South of the proposed extension (R. App. 6, 13).

Furthermore, the Toll Highway Authority contemplates

the development of industry and housing to line the pro-

posed route (R. App. 6, 7, 8, 12). In fact, it is relying on

this land development to create traffic to use the highway.

This will inevitably take more acres out of agricultural

production and add to drainage and pollution problems.

These emissions of air pollutants caused by the con-

struction of the extension will affect the quality and quan-

tity of agricultural production in the vicinity of the toll

highway extension, will damage ornamental plants, and

will affect both human and animal health. (R. App. 45,

12).

Furthermore, the State Toll Highway extension is pro-

posed to cross a low lying area historically known as the

“Great Swamp”, which has been saved by use of proper

drainage techniques, primarily drainage tiling, as some

of the richest, most drought resistant farm land in Amer.

ica (R. App. 4). The present plans as alleged by Peti-

tioners in their Complaint, show no understanding, con.

cern or planning to avoid drainage disruption, flooding,

erosion and loss of additional agricultural acres to swamp

land where pests can breed. The water table is still high

(R. App. 4, 12), and the destruction or disruption of the

vital drainage facilities and present run-off patterns will

inevitably lead to the loss of further rich, highly prodne.

tive farm acres by their reversion to marsh land (R. App.

4, 12). Defendants-Respondents have not made and have

no intention of making exploratory surveys to locate and

preserve the crucial water drainage tiles, and no drain-

age system is planned for the tollway to prevent its dis.

ruption of existing run-off patterns (R. App. 6-7).

The area which this proposed highway will disrupt is

unique in the nation and indeed in the world. The soil is

the richest and most productive agricultural soil in the

nation (R. App. 4, 11). It is also the most drought resist-

ant soil in the State of Illinois (R. App. 4, 11) as well as

the entire nation. The climate is excellently suited for

agriculture (R. App. 4) and is the most stable climate

for agriculture in the State and the nation (R. App. 4).

The combination of these three outstanding factors in

one place is rare (R. App. 4), rendering the soil produo

tion index (the amount of usable crop per acre) far

gEF? FB

her-

SERFS a BF

higher than the rest of the State and nation (R. App.

4, 11).

Not only is the area outstanding for the production of

such consumer crops as sweet corn, soybeans, oats, green

beans, peas, lima beans, tomatoes, alfalfa, asparagus and

pumpkins (R. App. 4), but a substantial portion of the

seed corn used to grow the sweet corn consumed by the

nation is grown in this area (R. App. 4) because it is

remarkably well suited to producing high quality seed.

Despite the importance of this area in meeting the

nation’s need for food, and despite the unique qualities

which make this area agriculturally outstanding, Defend-

ants did not consider any aspect of the environment in

determining the route of the highway, nor did they con-

sider whether the environmental damage might be too

high a social cost for the possible social benefit. Defend-

ants never commissioned or caused to be made any eco-

logical or environmental study for the said proposed route

(R. App. 6), although they did commission an engineer-

ing report concerning the specifications of the proposed

extension itself and a traffic and revenue report concern-

ing its profitability (R. App. 6).

The Authority, its members and officers, without study-

ing the environmental cost or considering any alternative

route, determined to construct this road through this

unique area (R. App. 6). Once this determination was

made, no study was commissioned or made to determine

how the environmental effects of such construction could

be minimized, and no efforts are presently being made to

minimize the environmental damage which will ensue

(R. App. 6-7).

Petitioners’ Complaint maintains that this utter disre-

gard for the environment is in violation of the national

(2 EN Ee omen mte

atte

policy established by two federal statutes, the Nationa]

Environmental Policy Act (R. App. 7-8, 13-14), and the

Environmental Quality Improvement Act (R. App. 89)

and that this national policy is binding on the states.

In their Complaint, Petitioners seek an injunction per.

manently restraining construction of the tollway if the

Court should find on trial that there is no valid justifics.

tion for the road when environmental factors are consid.

ered; or alternatively, they seek to enjoin construction

until studies are made by the Authority, its members and

officers to determine the relative effect on the environ-

ment of alternatives and to balance the environmental

cost against the social gain, all determinations

proven to have been made on evidence and facts war.

ranting such a decision.

In addition, the decision to extend the tollway was made

in closed, secret meetings of the Toll Highway Authority,

not in public meetings with reasonable and effective prior

notice as required by state law (R. App. 10). All the Peti.

tioners have an immediate interest in the area of the

proposed extension to the East-West Tollway. The four

townships are all situated on its route, and each will be

affected by its construction (R. App. 1). All of the indi-

vidual Plaintiffs are residents of the area through which

the proposed extension is to pass, and all have a direct

interest in the quality of the environment in which they

live (R. App. 2). Some are not only residents of the area,

but are also owners of farms which will be dissected bv

the proposed route (R. App. 2). The Northern Counties

Social Action Council is an unincorporated association

whose members are all residents of the affected area and

who have a substantial stake in the future of the environ.

ment in which they live (R. App. 2). Many of the Peti-

—_9—

tioners, although they own no land which may be taken

and thus would not be parties to any condemnation action,

nevertheless will be affected by the environmental damage

and construction created by the construction of the exten-

sion. Furthermore, the environmental damage which they

will suffer is neither measurable in dollar terms nor com-

pensable. Because the local process of condemnation is

neither adequate nor available to all, Petitioners had only

one effective opportunity to protect their property and

environmental rights, namely attending the open meet-

ings of the Toll Highway Authority and thereby influ-

encing the Board of Directors in their decisions on these

matters (R. App. 10). Plaintiffs would have attended the

public meetings and put forth their arguments against the

road at that time. Plaintiffs therefore further seek an

injunction until publie hearings are held in accordance

with the Illinois Meetings of Public Agencies Act.

Respondents moved to dismiss the Petitioners’ Com-

plaint on two grounds: first, lack of federal jurisdiction,

and second, the Complaint failed to state a claim upon

which relief could be granted (R. App. 14). The Dis-

trict Court granted Respondents’ motion to dismiss but

its opinion and order did not make it clear on which of

the two grounds the action had been dismissed. Peti-

tioners and Respondents argued as to both grounds be-

fore the United States Court of Appeals for the Seventh

Cireuit and the United States Court of Appeals for the

Seventh Circuit affirmed the District Court on the basis

of a failure to state a cause of action upon which relief

could be granted and made no mention of the issue of

federal jurisdiction. Petitioners now appeal the Seventh

Cireuit decision and believe that if a federal cause of

action is found by this Honorable Court the issue of

federal jurisdiction will by that decision also be resolved.

TEE TE NLL NE AONE IT TEE I TE BS! meta ening ge

Ce Ne Va e oh f

THE APPELLATE COURT ERRED IN RULING THAT A Vi0.

LATION OF THE ILLINOIS MEETINGS OF PUBLIC AGEN.

CIES ACT WHICH DENIED PETITIONERS THEIR OPPopR.

TUNITY TO DEFEND THEIR RIGHT TO A PROTECTED AND

HEALTHFUL ENVIRONMENT DID NOT VIOLATE THE DUE

PROCESS CLAUSE OF THE UNITED STATES CONSTITU.

TION

AND

THE DECISION OF THE APPELLATE COURT CONTRA.

VENES NUMEROUS AND REPEATED DECISIONS OF THIS

COURT AND CONFLICTS WITH DECISIONS OF THE SIXTH

AND NINTH CIRCUITS AND THE DISTRICT COURT FOR

THE EASTERN DISTRICT OF PENNSYLVANIA IN HOLD.

ING THAT A STATE AGENCY’S ACT RESULTING IN THE

TAKING OR DAMAGING OF LAND AND THE GENERAL

ENVIRONMENT IN VIOLATION OF THE PROCEDURAL

PROCESS SPECIFIED BY THE STATE SOVEREIGN IS NOT

A VIOLATION OF THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION.

The Seventh Circuit Erred In Holding That The Depriva-

tion Of A Federally Recognized Right By A State Agency

Acting In Violation Of Law Is Not A Violation Of Due

Process Guaranteed By The Fourteenth Amendment To

The United States Constitution And Section 1983 Of The

Federal Civil Rights Act.

The United States Court of Appeals for the Seventh

Circuit held that:

Plaintiffs-appellants allege that no public hearings

were held as required by the Illinois Meetings of

Public Agencies Act. Suffice it to say that this is a

state statute and, if valid, might provide a cause

of action in the state courts. It does not give rise to

a cause of action cognizable by a federal court, nor

does a failure to follow the requirements of the Act

constitute a violation of a federally protected con-

stitutional right. See Green Street Association v.

Daley, 373 F. 2d 1 (1967) (App. 6a).

This position is without support and totally opposed

to the holdings of this Honorable Court.

The Petitioners in this case will be damaged by the

building of the extension of the East-West Tollway in

ways not calculable in dollar terms. The land owner who

can be made a party to a condemnation proceeding can-

not prove damage in a dollar amount for the environ-

mental and ecological upset and destruction which will

affect his farm, his crops, his family and himself. Con-

demnation at best treats land solely as an economic asset.

It is not cognizant of nor is it capable of handling the

environmental rights recently recognized and protected

by Congress in the National Environmental Policy Act,

42 U.S.C. §4331(¢) and by Article XI, §2 of the Illinois

Constitution of 1970.

Furthermore, many of the Petitioners are not land

owners and are not parties to any condemnation. (R.

App. 1, 2). However, they must all breathe the de-

graded air, suffer large pools of stagnant water—per-

haps large areas of marshland—where mosquitoes will

breed and other pests reside, and be affected to some

degree by the reduction of productive farm land and the

(?) The validity of the Illinois Meetings of Public Agencies Act

was not questioned by either party, and the court’s statement ‘‘if

valid’ is in derrogation of the presumption of constitutionality and

legality of all statutes.

PORET Ys ECC oR Re wate

it Pert

PDAS NTE RRR yeaa a

—12—

deleterious effects on plant yield and health of humans

and animals (R. App. 45, 6-7, 10). All will, in addition,

suffer from the interruption and closing of local roads,

rendering many of them either inaccessible or less acces.

ible to emergency services such as fire, police and ambu.

lance, and such social services as school buses (R. App.

13).

Because condemnation cannot protect the environment

and is not even available to many of the Petitioners,

their federally guaranteed rights to property and a health.

ful and protected environment must be protected by

alternative proceedings designed and able to do so. The

State of Illinois has designed such an alternative method

of proceeding to ensure that those affected by govern.

mental action can protect their environmental interests

by being present when such decisions are made and in.

fiuencing the discussions and decisions by their presence.

Under the pressure of their presence and participation

the decision-makers will be mindful of the environmental

results of their plans and avoid or minimize such dis.

turbance and destruction. Public meeting procedure en-

sures that the interests of those affected will be heard

and their environmental interests protected, since envir.

onmental destruction can never be compensated or un.

done. This proceeding is established in Tllinois by the

Tilinois Meetings of Public Agencies Act, 102 TIl. Rev.

Stat. §42 et seg. (1969) (App. 21-22). The Illinois State

Toll Highway Authority, its directors and administrators,

al! Respondents herein, are covered by this Act and were

required to make the policy decisions to build the exten-

sion and the decision to fund it in public meetings.

Petitioners allege in their complaint, which must be

taken as true on this Motion to Dismiss, Mosher v. City

—13—

of Phoenix, 287 US. 29 (1932), that the meetings re-

quired by the Illinois Meetings of Public Agencies Act

to be open and public, were closed and secret and thus

violated the Act (R. App. 10). Despite the fact that proper

public meetings were not held, the Authority threatened

condemnation in pursuance of its illegally passed resolu-

tions at the time that this action was filed, and has since

instituted such condemnation actions.

In these circumstances, the Court of Appeals for the

Seventh Circuit in affirming the District Court’s dismissal

of Petitioners’ Complaint for failure to state a cause of

action has contravened the authority of this Court in

failing to recognize three different and distinct violations

of due process guaranteed by the United States Consti-

tution.

First, this Court has long recognized that although the

sovereign may be unrestrained in its power of eminent

domain, once the sovereign places restrictions on its exer-

cise, those limitations bind the sovereign. In Boom Co. v.

Patterson, 98 U.S. 403, 406 (1878), this Court stated:

The right of eminent domain, that is, the right to

take private property for public uses, appertains to

every independent government. It requires no con-

stitutional recognition; it is an attribute of sover-

eignty. The clause found in the Constitutions of the

several States providing for just compensation for

property taken is a mere limitation upon the exer-

cise of the right. . . . But notwithstanding the

right is one that appertains to sovereignty, when the

sovereign power attaches conditions to its exercise,

the inquiry whether the conditions have been ob-

served is a proper matter for judicial cognizance.

In the later case of Chicago, Burlington & Quincy R.R.

Co. v. Chicago, 166 U.S. 226, 241 (1897), the sovereign

oe |

PRO:

ape

SII oe geet

AIL AOEI TLE SS NS A PR AES RAED BE geen tt

asin:

contravened the limitations it placed on its power of

eminent domain (failure to pay compensation to the

owner as required by state law) and this Court held that

due process guaranteed by the Fourteenth Amendment

of the United States Constitution was therefore violated,

Accord: Cuyahoga River Power Co. v. City of Akron, 249

U.S. 462 (1916).

This Court further held in Chicago, Burlington ¢

Quincy R.R. Co. v. Chicago, 166 U.S. 226, 234 (1897),

that no matter which state governmental branch or agency

violates a limitation placed on its exercise of eminent

domain, the constitutional prohibition against taking with-

out due process is violated, and that each state agency

in proceeding to take property must keep within every

regulation on the exercise of that power.

One of the limitations on the exercise of eminent domain

which the State of Illinois placed on its agencies is that

all meetings where resolutions are adopted determining

the policy of whether a particular public project should

be undertaken or funded, such as the meetings now at

issue, must be public meetings.) The Illinois State Toll

Highway Authority as a state agency is bound by that

regulation. The Authority violated that limitation when

it adopted resolutions first that an extension to the toll-

way was necessary and second to float bonds to finance it

at closed and secret meetings (R. App. 10) to the detri-

ment of Petitioners’ property and environmental rights

(R. App. 10-11) and thereby violated their federally

guaranteed right to due process.

(°) The meetings concerned in this case were policy meetings

and did not fall within any exception for meetings concerned with

selecting particular parcels of land on which condemnation actions

were to be begun. =

= =

Second, the Fourteenth Amendment guarantee of due

process, like the Fifth Amendment guarantee of due

process, was intended to preserve the citizen from damage

to himself, his property and his civil rights caused by the

arbitrary and capricious action of state officials clothed

with the power of the state. As Mr. Justice Field stated

for this Court in Missouri Pacific Railway Company v.

Humes, 115 U.S. 512 (1885):

In England the requirement of due process of law,

in cases where life, liberty and property were af-

fected, was originally designed to secure the subject

against the arbitrary action of the Crown, and to

place him under the protection of the law. The words

were held to be the equivalent of “law of the land.”

And a similar purpose must be ascribed to them when

applied to a legislative body in this country; that is,

that they are intended, in addition to other guaran-

tees of private rights, to give increased security

against the arbitrary deprivation of life or liberty,

and arbitrary spoilation (sic) of property. Jd. at 519.

Accord: Bank of Cvulumbia v. Okely, 4 Wheat. (17 U.S.)

235, 244 (1819); U. S. v. Cruikshank, 92 U.S. 542, 554

(1875). When governmental agencies violate a legal duty

and thereby deprive a citizen of his property or civil

rights, they violate due process. As the United States

Court of Appeals for the Sixth Circuit recognized in

Weaver v. Pennsylvania-Ohio Power & Light Co., 10 F.

2d 759, 760 (6th Cir. 1926), the alleged collusion of gov-

ernment officials in an eminent domain proceeding would,

if substantiated, be a violation of due process guaran-

teed by the Fourteenth Amendment. This is consistent

with the holding in Donovan v. Mobley, 291 F. Supp.

930, 934, (C.D. Calif. 1968), modified on other grounds,

433 F. 2d 738 (9th Cir. 1970), where the Court rightly

eS Angra oar LEVEY ILL TOTO ORR ne wh a iamied & ESN

nfm

held that although there may have been no compulsion

on the state to establish a particular procedure, once

established it could not be violated by governments)

agencies or officers. Where the State of Illinois required

that the Authority act in public and open meetings and

the Respondents disregarded his law and acted in closed

and secret meetings they acted arbitrarily and capri.

ciously and violated due process guaranteed by the Four.

teenth Amendment to the United States Constitution.

Third, Petitioners were denied due process on stil]

another ground. Due process requires a proceeding fol-

lowing the ordinary mode prescribed by law, adapted

to the end to be obtained, and held at an effective time

Hagar v. Reclamation District No. 108, 111 U.S. 701, 708

(1884). The time to protect the environment is before

any damage is done to it. Money cannot replace it and

no legal proceeding can undo destruction already com.

pleted. The State of Illinois mandated a proceeding which

guaranteed that proper consideration would be given to

the rights and property of Petitioners before potentially

detrimental action was taken. All citizens who would be

affected by environmental degradation and destruction

were entitled to participate in this proceeding, whereas

only land owners could be made parties to condemnation

actions. Respondents’ violation of the open meetings act

deprived Petitioners of a timely, effective proceeding in

compliance with law and thus violated their right to due

process as guaranteed by the Fourteenth Amendment to

the United States Constitution.

The Seventh Circuit cited as its basis for holding that

no federal due process question was stated in Petitioners’

Complaint a previous Seventh Circuit decision, namely

=_ =

to be given to the state for a proposed state project.

Had the federal funding itself been challenged instead

of the state’s power of eminent domain (which existed

velopment, 284 F. Supp. 809, 8234 (ED. Penn. 1968).

The case at bar, contrary to Green Street and Harrison-

Halsted, was brought to enjoin a state agency from ex-

ercising eminent domain in furtherance of an illegal

project authorized in closed and secret meetings in dis-

regard and violation of the state statutory requirement

that decisions to undertake and fund public projects be

made in mandatory open meetings. It was only after

enactment of the Illinois Meetings of Public Agencies

Act (App. 21-22), which became state law after the deci-

sion in the Green Street and Harrison-Halsted cases, that

a public meeting became mandatory for all state agen-

cies when making policy decisions to authorize construc-

tion or fund particular projects. This created an addi-

affin

tional procedural step which must be followed if eminent

domain is to be lawfully exercised. Department of Pyb.

lic Works v. Ryan, 357 Ill. 150, 155-6 (1934); accord:

Chicago, B. € Q. R.R. Co. v. Chicago, 166 U.S. 226, 24)

(1897). Because Respondents in the case at bar violated

a limitation placed on the exercise of eminent domain,

due process was violated. The Seventh Circuit should

therefore have followed its own precedent in Progress

Development Group v. Mitchell, 286 F. 2d 222 (7th Cir.

1961).

Furthermore, all parties in the Green Street and Har.

rison-Halsted cases would have been proper parties to

condemnation proceedings since they were either owners

or tenants of buildings and land sought to be taken,

whereas in the case at bar many of the Petitioners, al-

though sharing the same environment and breathing the

same air, are not land owners or tenants and would not

be proper parties to a condemnation proceeding. More

over, neither decision was concerned with environmental

rights which could not be properly protected in a con

demnation proceeding. Both cases were decided prior

to Congress’ recognition of the right to a protected and

healthful environment, 42 U.S.C. 4331(c) (App. 20)

and recognized by the Illinois State Constitution of 1970,

Article XI, §2. Since Congress’ recognition of the right

to a healthful and protected environment, the Fourteenth

Amendment to the United States Constitution and 42

U.S.C. §1983 ensure that Petitioners’ rights to a protected

and healthful environment shall not be impaired or en-

dangered by state governmental action without the ob-

servance of due process of law. Due process always ex-

pands to protect new rights as they are recognized. Wolf

v. Colorado, 338 U.S. 25, 27 (1949); accord: Holden v.

Hardy, 169 U.S. 366 (1898).

his federal rights in a federal court or his state rights

in a state court. Smyth v. Ames, 169 U.S. 466, 516 (1898).

In this century, this Court has reiterated this principle

repeatedly. Mosher v. City of Phoeniz, 287 U.S. 29, 32

(1932). In the famous case of Monroe v. Pape, 365 U.S.

167, 183 (1960), reversing the Seventh Circuit, this

Court held:

supplementary to the state remedy, and the latter

need not be first sought and refused before the fed-

eral one is invoked. Hence the fact that Illinois by

its constitution and laws outlaws unreasonable search-

es and seizures is no barrier to the present suit in

the federal court.

Even the Seventh Circuit has held on a previous oc-

easion that where the exercise of eminent domain will

+ SOIR TER UO Reg .

. |

violate federal constitutional guarantees federal courts

will enjoin the condemnation. Progress Development Corp.

v. Mitchell, 286 F. 2d 222 (7th Cir. 1961). Ip the case at

bar Petitioners’ property and rights in the environment

will be damaged or destroyed by the decision of the An.

thority to build this extension which was made in closed

and secret meetings in contravention of law. The pro-

ceeding provided by law and denied to Petitioners by

Respondents was the only proceeding authorized which

was suited to the protection of the rights involved herein.

The deprivation of this proceeding was clearly a depriva-

tion of due process and thus a valid federal cause of

action.

This Court should take certiorari and reverse the Sev-

enth Circuit because that decision contravenes numerous

decisions of this Court as well as constitutional and stat.

utory provisions which guarantee to Petitioners due proc.

ess of law. U.S. Const. XIV, §1; 42 U.S.C. §1983. Fur.

thermore, the issue involved in this case is of great im-

portance to the health and welfare of the nation. His.

torically, this court has enunciated decisions delineating

basic principles governing the nature and scope of due

process. These decisions clearly include within their scope

the protection of Petitioners’ environmental rights claimed

in the circumstances of this case. This nation can ill af.

ford any confusion which may be caused by failure to

reverse the Seventh Circuit at this point in time when

it is recognized that land and other environmental re-

sources are not limitless, but indeed are dangerously close

to depletion.

olfiias

IZ.

AND

THE COURT OF APPEALS FOR THE SEVENTH CIRCUIT BY

NOT ENFORCING §4331(a) AND (c) OF THE NATIONAL EN-

VIRONMENTAL POLICY ACT DISREGARDED THE RULES

ESTABLISHED BY THIS COURT FOR STATUTORY INTER-

PRETATION, NULLIFIED PROVISIONS OF AN ACT OF

CONGRESS, IGNORED THE INTENT OF CONGRESS, AND

PLACED ITSELF IN CONFLICT WITH DECISIONS OF THE

FIRST, THIRD, SIXTH, TENTH, AND DISTRICT OF COLUM-

BIA CIRCUITS, THE DISTRICT COURT FOR NEW JERSEY,

AND ITS OWN PRECEDENT.

Petitioners also sued to enjoin the construction of the

proposed extension because Respondents violated the

National Environmental Policy Act (“NEPA”), 42 U.S.C.

§4331(c) (App. 20) and the Environmental Quality Im-

provement Act, 42 U.S.C. §4371(b)(1), (2) (App. 20).

Rather than protecting and enhancing the environment

by avoiding or minimizing damage, Respondents will in

many ways maximize environmental damage (R. App.

4.9, 11-14). The United States Court of Appeals clearly

erred in holding that because no federal money was in-

volved Petitioners failed to state a cause of action (App.

5-6). In so ruling, the Court of Appeals violated the

clear language of two Congressional enactments, ignored

a long line of this Court’s decisions on statutory inter-

—22—

pretation and legislative hisory, contravened its own

precedent, lacked authority to support its decision, and

conflicted with a decision of the United States District

Court for New Jersey. This Court should be particularly

interested in this decision and should take certiorari to

examine it because the Court of -Appeals used as its

guideline a one-line comment made by one of the Justices

of this Court in his dissent from a two-paragraph opinion

denying certiorari, and the comment was not even re.

motely related to the subject-matter presently before this

Court. This Court must ensure that this one-line excur.

sion by one Justice of this Court does not mislead lower

federal courts into believing that §4331(c) is now fore.

closed to independent examination, thus predetermining

for the nation the outcome of any future case based on

this section. This Court now has the responsibility of

examining the issue thoroughly, considering all the argu-

ments, and making a definitive pronouncement.

The comment upon which the Court of Appeals relied

was in Mr. Justice Douglas’s dissent to the denial of

Certiorari in San Antonio Conservation Society v. Texas

Highway Department, 400 U.S. 968 (1970). That case con-

cerned a federally funded highway which was to cut

through a public park in San Antonio, Texas, and arose

under a different provision of NEPA. In his dissent, Mr.

Justice Douglas made the gratuitous personal observation

that had the City of San Antonio or the State of Texas

financed the highway with local funds, no federal question

would be presented. Mr. Justice Douglas’s quotation was

as follows: “No federal question would, of course, be

presented if Texas or San Antonio decided to turn these

park lands into a biological desert.” Jd. at 978. Federal

ee ial gaeert BD nt ROP PE FEO Fae

ait

funds, however, were involved in that case and it is clear

that the issues raised in the case at bar were not raised,

argued, elucidated or even before this Court for consid-

eration. In passing, it should be noted that the Court of

Appeals not only erred in regarding this comment as a

guideline by this Court but erroneously considered a

denial of Certiorari as an expression of approval by this

Court of the lower court decision (App. 5).

It is important to note that although the Petitioners

rested their claim under the National Environmental

Policy Act (NEPA), 42 U.S.C. §4331(c) (App. 20), the

Court of Appeals, although claiming to set out the perti-

nent parts of NEPA, in fact set out subsection (a) and

the first part of sub-section (b) and completely ignored

the main basis of Petitioners’ claim, namely subsection

(ce) (App. 3). Similarly, the Court of Appeals relied

on decisions of other circuits interpreting subsection (b)

but not one decision cited by the court dealt with subsec-

tion (ec) which is distinct in its wording and different in

its thrust from (b).

The Court of Appeals relied upon two cases in addition

to the dissenting opinion and the wrong section of NEPA.

The first decision relied upon was McQueary v. Laird,

449 F. 2d 608 (10th Cir. 1971), concerning chemical and

biological warfare agents stored in the Rocky Mountain

Arsenal. The court in that ease, however, never had the

opportunity to consider the questions raised in this case

for three reasons. First, the federal government was in-

volved and sub-section (ec) was therefore not even under

consideration. Second, the court could not give much

consideration to any part of NEPA because: “During

oral argument the appellants for the first time indicated

AAT ASRE SS OR LC OTR

—7

that jurisdiction might vest by virtue of the National

Environmental Policy Act of 1969.” 3 E.R.C. 1184, 1185.

Third and most important, the court’s decision turned on

a specialized and unique aspect of federal law regarding

military disclosures: “In its proprietary military ¢a-

pacity, the Federal Government has traditionally exer.

cised unfettered control with respect to internal manage.

ment and operation of federal military establishments.

...” Id. at 1187.

The second case relied upon by the Court of Appeals

was Environmental Defense Fumd v. Corps of Engineers

of the United States Army, 325 F. Supp. 749 (E.D. Ark

1971). Again the federal government was involved and

again the court never considered sub-section (c). At the

time Congress established the national policy, in other

sections of the Act, as controller of federal operations,

it also established procedures for the federal government

to bring it into compliance with the policy set forth in

NEPA. The federal government did not fulfill its obliga-

tions as defined by Congress and the government was en-

joined at Plaintiff’s request.

NEPA begins with a statement of purpose, 42 U.S.C.

§4321 (App. 18). In the next section it makes a “Con-

gressional declaration of environmental policy”, 42 U.S.C.

§4331 (App. 18), which is divided into three parts.

The first part is directed to state and local governments

and public and private organizations; the second part is

addressed to the federal government; and the third part

is addressed to individuals, 42 U.S.C. §4331(a), (b), (ce).

This declaration of a national environmental policy fol-

lows a statement of purpose and was meant to effectuate

that purpose. To deny meaning and effect to sub-sections

—4—

calitien

(a) and (c) is to violate the well settled and often re-

ted holding of this Court that “a statute ought, upon

the whole, to be so construed that, if it can be prevented,

no clause, sentence, or word shall be superfluous, void. or

insignificant.” Ex Parte Public Bank, 278 U.S. 101, 104

(1928); U.S. v. Fisher, 109 U.S. 143, 145 (1883); Mont-

clair v. Ramsdell, 107 U.S. 147, 152 (1882). Congress en-

acted a statute, not a resolution, and put this section and

its subsections squarely within Title I. The Court of

Appeals therefore held that Congress enacted meaning-

less surplusage as one section of Title I, and that in the

midst of drafting a statute, threw in a lengthy section

never intending it to become law or to have effect.

It is a long standing rule of statutory construction that

acts in pari materia should be consulted where there is

doubt as to meaning. The Environmental Quality Im-

provement Act, 42 U.S.C. §4371, enacted only a short time

after NEPA and declaring once again the same national

policy for the environment, states unequivocally :

(b)(1) The Congress declares that there is a

national policy for the environment which provides

for the enhancement of environmental quality. * * *

(2) The primary responsibility for implementing

this policy rests with State and local governments.

42 U.S.C. §4871(b) (1) (2) (App. 20).

If there was any question whether sub-section (a) of

NEPA put a duty on state and local government, that

doubt is completely removed by the Environmental Qual-

ity Improvement Act.

This Court has often held that a statute should be

given effect according to its literal language. Van Camp

dé Sons v. American Can Co., 278 U.S. 245, 253 (1928) ;

A es peek)

eae

RFE OR IR OI Her os! HM nee

alien

accord: Hilliard v. U.S., 310 F. 2d 631, 632 (6th Cir,

1962). Sub-section (¢) provides:

should enjoy a healthful environment and that each

person has a responsibility to contribute to the pres.

ervation and enhancement of the environment. 42

U.S.C. §$4331(¢) (App. 20).

The word “should” has repeatedly been interpreted and

defined as a word of command. “Should” is mandatory,

Town of Edgewater v. Liebhardt, 32 Colo. 307, 76 P. 366

(1904) ; Fegan v. Lykes Bros. 8.8. Co., 198 La. 312, 3 So.

2d 632 (1941) ; State v. Bruton, 383 S.W. 2d 525 (Mo. Sup.

Ct. 1964); Williams v. Kaestner, 332 S.W. 2d 21, 27 (Mo.

Ct. App. 1960). Furthermore, Congress not only recog.

nized the right, it also spelled out its corollary, its cor.

responding duty. The word “responsibility” is defined by

the Seventh Circuit as well as other courts as meaning

“obligation” or “duty”. Niagara Fire Extinguisher Co. v.

Hibbard, 179 Fed. 844, 848 (7th Cir. 1910); The Mary

Barrett, 279 Fed. 329, 334 (3rd Cir. 1922); Murphy v.

Chicago League Ball Club, 221 Ill. App. 120, 126-7 (1921);

Bouvier’s Law Dictionary Unabridged (8th ed.). These

words must be taken as meaning in the statute what

they are commonly understood to mean. Henry v. U.S,

251 U.S. 393, 395 (1919) (Justice Holmes speaking for the

Court) ; Montclair v. Ramsdell, 107 U.S. 147, 152 (1882).

The Seventh Circuit, however, neither read nor enforced

this sub-section of the Act according to its plain lan-

guage, but sought to nullify the words and thus contra-

vened other decisions of this Court. Carter’s Heirs v.

Cutting € Wife, 12 U.S. (8 Cran.) 251, 252 (1814); Van

Camp € Sons Co. v. American Can Co., 278 U.S. 245, 253

(1928).

—

—7—

The Court of Appeals further disregarded the statute’s

history which clearly demonstrates that Congress intended

to create a right. The report of the Senate Conference

Committee reporting the final draft of the legislation to

the floor of the Senate leaves no question that a right

was intended ;

Section 101(c).

Yhis subsection asserts congressional recognition

that eaeh person should enjoy a healthful environ-

ment. It is apparent that the guarantee of the con-

tinued enjoyment of any individual right is dependent

upon individual health and safety. It is further ap-

parent that deprivation of an individual’s healthful

environment will result in the deprivation of all of

his rights.

The subsection also asserts congressional recogni-

tion of each individual’s responsibility to contribute

to the preservation and enhancement of the environ-

ment. The enjoyment of individual rights requires

respect and protection of the rights of others. The

cumulative influence of each individual upon the en-

vironment is of such great significance that every

effort to preserve environmental quality must depend

upon the strong support and participation of the

public. Cong. Rec., December 20, 1969, p. 40419.

It also disregarded the statutory history of the Environ-

mental Quality Improvement Act, 42 U.S.C. §4371 (App.

90) which is a complementary act in para materia de-

claring once again the same national policy for the envir-

onment. In its committee report the Senate Committee

for Interior and Insular Affairs, under the heading “Title

II, Environmental Quality Summary and Discussion of

Major Provisions” referring to §4371(b) (1) and (2),

stated :

FP Ee ip ee TOR

bf i a ob

SRT Py eee op ace pReRANS , . -_

SE SE ern Sadak

ules

The States have been delegated the primary respon-

sibility to protect and enhance the quality of air and

water within their boundaries, and, in cooperation

with other States, to protect and enhance the quality

or air and water within resource areas common to

those States. Senate Report 91-351, 91st Cong., 1st

Sess. 37 (1969).

The Court erred in disregarding these clear indications

of legislative intent.

The Court of Appeals violated the precedent and au-

thority of this Court in not enforcing this statute as lay.

First, it violated all the well established rules of statu.

tory interpretation. Second, it never analyzed the Act nor

so much as mentioned the canons of interpretation com-

manded by this Court. Third, it nullified an Act of Con.

gress by refusing to enforce the duties established there.

in or the policy which Congress declared for the nation,

The Seventh Circuit cannot nullify the policy established

by the policy-making branch of the federal government,

It is bound to enforce that policy as any other law. Mo-

ragne v. States Marine Lines, 398 U.S. 375, 390-1 (1970);

Van Beeck v. Sabine Towing Co. Inc., 300 U.S. 342, 351

(1937) (Justice Cardozo speaking for the Court); John

son v. U.S., 163 Fed. 30, 32 (1st Cir. 1908) (Justice Holmes

speaking for the Court); Tag v. Rogers, 267 F. 2d 664,

668 (D.C. Cir. 1959). The Congress realized that setting

policy on environmental matters merely for the federal

government would accomplish little if state and local

governments as well as individuals were free to disregard

it. Congress bound the nation by declaring a national

policy which put obligations on all levels and parts of

society.

—29—

The United States District Court for New Jersey rec-

ognized that the policy enunciated by Congress was a

mandate to be enforced against all who violate it. In

Ieaac Walton League v. Macchia, 2 E.R.C. 1661 (D.N.J.

1971), the court recognized that NEPA extended beyond

the federal government, and applied it to state officers

- who permitted a dredge and fill operation which endan-

gered the environment. The court also recognized that

NEPA applied to and was binding on the private indi-

viduals actually performing the dredge and fill operation

as part of their private building development. In grant-

ing an injunction against the private developers working

on their own private building venture for their own profit,

the court held, “Our environment must be protected

against abuse, either public or private. That is the man-

date of Congress.” Id. at 1669.

Respondents herein, whether as persons or the Illinois

State Toll Highway Authority, breached their statutory

duty and Petitioner’s rights by not weighing or consid-

ering the environment to avert damage thereto.

That environmental damage would be caused by the

proposed project in a unique area cannot be questioned.

The area has some of the richest soil in the nation in

combination with a climate well suited to agriculture and

the most stable in the nation, and a high water table (R.

App. 4). Because of the high water table the area is

resistant to drought (R. App. 11) but without the aid of

drainage tiles and the natural run-off patterns there

would be erosion and the land would become untillable

marsh (R. App. 4, 6) where mosquitoes and other pests

would breed (R. App. 10). Respondents under NEPA

have an obligation to protect and enhance Petitioners’

OEE TL OE ST LIYE ET OPO ORI SRE Teen —

SE a ey. re Te a Ee Ne SO

ee mato

proposed extension (R. App. 4, 5, 7, 12). Petitioners

leged in the Complaint below:

16. The said report on traffic and revenue candidly

sets forth the conclusions that most of the long dis.

tance traffic that would have been served by this pro.

posed extension of the East-West Tollway is now

served by the recently constructed Interstate 80, which

is a new free limited-access multi-lane interstate high-

way, and that the traffic which can be expected to use

the said proposed extension will be short distance

local commuter traffic and traffic which the construc.

tion of the highway will itself create and generate.

(Emphasis Added)

This is an extremely important allegation because it not

only sets forth that the extension itself is unnecessary,

as shown by the Authority's own traffic and revenue

report, but that much of the pollution will be created by

fall (3

ite Hi!

;

[

Quality Improvement Act, and

mental

;

—32—

environmental and ecological degradation and destroy.

tion. Steele v. L. & N.R. Co., 323 US. 192, 27 (1944).

The importance of this issue for the nation as a whole

is overwhelming. Our environment is in danger of being

exhausted irreparably. Congress recognized this and

sought to protect and enhance the environment by putting

obligations on all levels of society—federal, state and

local governments, and individuals. Congress was mind.

ful that in order to preserve natural resources the obliga.

tion to do so must be on all, since it is state and local

actions as well as individual actions which have th

greatest impact on the environment. The Courts most

enforce the express language of Congress and the obliga.

tions and rights therein set forth. The Seventh Cirenit

Court of Appeals failed to enforce aa Act of Concress

against the clear intent and meaning of the words. against

the demonstrated legislative history, against the authority

of this Court, and the conflict with other Cirenit and

clarify for the lower federal courts whether the gra

tuitous statement of Justice Douglas is the holding of this

Court. This Court must vindicate its past decisions and

its authority over the Circuit Courts. resolve the conflict

of the Seventh Cireuit with the other Circuit and District

courts, and clarify and define this Court's position on the

issue so that lower federal courts will not be led astray.

OO SS —O>S

by this Court the judgment of the Unite’ States Court

of Appeals for the Seventh Cireuit be reversed in it-

entirety or reversed and remanded with appropriate diree-

tons.

i ee -

LS LO I te ww - |

» al

—la—

APPENDIX A

Ju the

United States Court of Appeals

For the Seventh Circuit

SepreMBeR TERM, 1971 — Apriz Session, 1972

No. 71-1488 Appeal from the

Braprorp TowNsHr, et al., ; United States Dis-

al trict Court for the

Plaintiff s-A ppellants, ; Northern District

v. of Illinois, Eastern

Division.

No. 71-C-1270

Frank J. McGarr,

Defendants-A ppellees. / Judge.

Iuurwois State Tot, Hichway

Avruorirty, et al.,

Arouep Aprit 20, 1972 — Decwen June 22, 1972

Before Swycert, Chief Judge, Pevt, Circuit Judge, and

Jvercens®, District Judge.

Jvercens, District Judge. This is an appeal from an

order of the United States District Court for the Northern

District of Illinois, Eastern Division, dismissing plain-

tiffs’ complaint for failure to state a cause of action.

* Chief District Judge William G. Juergens of the Eastern District of

Illinois is sitting by designation. ;

FER PLETE Oh SS STE MOT OEE SP Stace. ae

| ;

This action is to enjoin the defendants, the Lllinois

State Toll Highway Authority, from constructing the

proposed extension to the East-West Toll Highway from

Aurora, Illinois, to Rock Falls, Illinois.

Plaintiffs allege that the extension of the highway wil)

greatly damage the environment in that it will cause

the closing of many roads and limit access to various

social and emergency services, cause pollution of the air

by virtue of gas exhaustion, disruption of vital water

drainage systems and patterns, and will destroy import.

ant acreage along the route it traverses, which land is ex.

ceptionally prolific farm property, very high in i

for farming purposes because of its fertility and its

drought resistance.

Tt is alleged that the lands were previously swamp

lands, which have been drained through the use of tile,

and that the proposed construction of the tollway makes

no provision for maintaining the drainage facilities.

Jurisdiction is alleged to exist under the provisions

of the National Environmental Policy Act, 42 USC

§ 4321 and § 4331; the Environmental Quality Improve.

ment Act, 42 U.S.C. § 4371; Meeting of Public Agencies

Act, Chapter 102 Ill. Rev. Stat. § 42; the Civil Rights

Act, Title 42 U.S.C. § 1983.

Section 4321 declares the purpose by stating:

“See. 2. The purposes of this Act are: To declare

a national policy which will encourage productive

and enjoyable harmony between man and his environ- |

ment; to promote efforts which will prevent or

eliminate damage to the environment and biosphere

and stimulate the health and welfare of man; to

enrich the understanding of the ecological systems

and natural resources important to the Nation; and

to establish a Council on Environmental Quality.”

——

Section 4331 is in pertinent parts as follows:

“(a) The recognizing the profound impact ;

of man’s activity on the interrelations of all com- :

advances and recognizing further the critical im-

portance of restoring and maintaining environmental

quality to the overall welfare and development of

man, declares that it is the continuing policy of the

Federal Government, in cooperation with State and

local governments, and other concerned public and

private organizations, to use all practical means and

measures, including financial and technical assistance,

in a manner calculated to foster and promote the

general welfare, to create and maintain conditions

under which man and nature can exist in productive

harmony, and fulfill the social, economic, and other

requirements of present and future generations of

Americans.

“(b) In order to carry out the policy set forth

in this Act, it is the continuing responsibility of the

Federal Government to use all practicable means,

consistent with other essential considerations of na-

tion policy, to improve and coordinate Federal plans,

functions, programs, and resources * ° °.”

The Environmental Quality Improvement Act, 42 U.S.C.

§ 4371, provides:

“{ 4371. Congressional findings, declarations, and

purposes.

(a) The Congress finds—

(1) that man has caused changes in the en-

vironment ;

(2) that many of these changes may affect

the relationship between man and his environ-

ment; and

—_4g-—

(3) that population increases and urban con.

centration contribute directly to pollution and

degradation of our environment.

(b)(1) The Congress declares that there is a na.

tional policy for the environment which provides for

the enhancement of environmental quality. * * *

(2) The primary responsibility for implementing

this policy rests with State and local governments.”

Plaintiffs-appellants argue that the district court dis.

missed the cause for lack of jurisdiction without any

consideration of the various federal claims alleged. The

district court’s opinion elicits that it took jurisdiction

because a federal cause of action was alleged in the

complaint. The court, after considering the claims alleged,

dismissed the complaint for lack of jurisdiction over

the subject matter.

The question of whether or not the National Environ.

mental Policy Act (NEPA) creates a substantive right

was dealt with in Environmental Defense Fund v. C

of Engineers of the United States Army, 325 F.Supp.

749, which held that NEPA was merely a statement of

policy and created no substantive rights giving a right

to the enjoining of a dam project in that area. The court

further held that the plaintiffs were relegated to the

procedural requirements under § 102 of NEPA which

required the governmental agency to file a “detailed im.

pact” statement.

In McQueary v. Laird, 449 F.2d 608 (10 Cir. 1971),

various residents of Colorado sought to enjoin the storing

of chemicals and biological warfare agents at Rocky

Mountain Arsenal. The court held NEPA does not create

substantive rights in the plaintiffs to raise the environ-

mental challenge in the Rocky Mountain Arsenal.

Federal agencies are clearly charged with certain pro-

cedural requirements under NEPA and failure to comply

El <<

— - OP ELITE GE

—ja—

herewith is basis for an injunction. One of the require-

ments is that an impact statement must be filed showing

the impact on the environment by virtue of the proposed

agency action.

Judicial relief is available to correct failure on the part

of a federal agency to follow the procedural requirement

under NEPA.

A question somewhat comparable to that presented here

was presented to the Supreme Court in San Antonio

Conservation Society of Texas v. Texas Highway Depart-

ment, 91 S.Ct. 368, 400 U.S. 968. This case involved the

construction of a federally funded highway through 4

San Antonio, Texas park. The court originally granted

a stay, later dissolved the stay and denied certiorari.

Justice Douglas dissented, arguing that major federal

action was involved and federal jurisdiction existed be-

cause an environmental impact statement had not been

prepared by the U. S. Department of Transportation.

Thus, in the factual situation presented here, it would

appear that even Justice Douglas would hold that the

Act is not applicable, since we are here dealing with in-

dependent state or local governmental actions.

The Environmental Quality Improvement Act (EQIA),

U.S.C. § 4871, is clearly limited in its application to

agencies of the federal government. The Act provides,

inter alia, that each federal department and agency con-

ducting or supporting public work activities, which affect

the environment, shall implement the policies established

under existing law. The Act authorized an Office of En-

vironmental Quality which was to provide provisional

and administrative staff for the Counsel on Environmental

Quality. Nowhere does the Act purport to give a cause

of action against state agencies or officers as plaintiffs

contend.

There is no claim that the federal government or any

federal agency is engaged in any manner in the construc-

o. ~ .

—~™ = eee 6 eH ee Oe a

atten

tion of the tollway extension. Nor is it alleged that any

federal funds are to be used. Since the procedural require.

ments of the National Environmental Policy Act are

applicable only to federal agencies, it is patently clear

that these requirements have no pertinence to the facts

of this case. Other than the procedural requirements

just mentioned, no judicially enforceable duties are

ereated by either the National Environmental Policy Act

or the Environmental Quality Improvement Act. The

declarations of a national environmental policy and a

Statement of purpose appearing in these acts are not

sufficient to establish substantive rights. For these reasons,

the plaintiffs have asserted no cognizable federal rights

under these statutes.

Plaintiffs-appellants allege that no public hearings were

held as required by the [Illinois Meetings of Public

Agencies Act. Suffice it to say that this is a state statute

and, if valid, might provide a cause of action in the state

courts. It does not give rise to a cause of action co

able by a federal court, nor does a failure to follow the

requirements of the Act constitute a violation of a fed-

erally protected constitutional right. See Green Street

Association v. Daley, 373 F.2d 1 (1967).

The allegations of the complaint are totally insufficient

to state a cause of action under the Civil Rights Act.

The District Court properly dismissed the complaint

for failure to state a claim upon which relief could be

granted.

The order of the District Court, dismissing the com-

plaint, is affirmed.

AFFIRMED.

A true Copy:

Teste:

_ Clerk of the United States Cow of

Appeals for the Seventh Circuit.

ee ee ee ee

— - epee eeenin ompieend + es at baie epee, |

—_

APPENDIX B

OPINION BY JUDGE JUERGENS

In the

United States Court of Appeals

For the Seventh Circuit

June 22, 1972

Before

Hon. Luter M. Swycert, Chief Judge

Hon. Wusvur F. Pew, Jn., Circuit Judge

Hon. Wuuiam G. Jurrcens, Chief District Judge

Cause No. 71-1488

Braprorp TowNsHP, et al.,

Plaintiffs-Appellants,

vs.

Inurwois State Tort Hicuway Avutuority, et al.

Defendants-A ppellees.

This cause came on to be heard upon the transcript of

the record from the United States District Court for the

Northern District of Dlinois, Eastern Division, and was

argued by counsel.

On consideration whereof, it is ordered and adjudged

by this court that the order of the said District Court

dismissing the complaint in this cause appealed from be,

and the same is hereby, Affirmed, with costs, in accord-

ance with the opinion of this Court filed this day.

APPENDIX C

Inthe

Anited States Court of Appeals

For the Seventh Circuit

I, Kenneth J..Carrick, Clerk of the United States Court

of Appeals for the Seventh Circuit, do hereby certify that

the foregoing - pages contain a true copy of

1. Appellants’ appendix filed November 1, 1971.

2. Opinion Filed June 22, 1972.

3. Judgment Entered June 22, 1972.

Cause No. 71-1488

Braprorp TownsHr, et al.,

Plaintiffs-A ppellants,

vs.

Intrwois Stare Tort Hicnway Avrnoriry, et al.,

Defendants-Appellees,

as the same remains upon the files and records of the

United States Court of Appeals for the Seventh Circuit.

In Testimony Whereof I hereunto subscribe my

name and affix the seal of said United States

Court of Appeals for the Seventh Circuit, at

the City of Chicago, this 15th day of Sep-

tember A. D. 1972.

/s/ William H. Pittman

Deputy Clerk of the United

Court of Appeals for the

Seventh Circuit

APPENDIX D

EXCERPT OF PROCEEDINGS

had in the above-entitled cause before the Honorable

Frank J. McGarr, one of the Judges of said court,

in his courtroom in the United States Courthouse,

Chicago, Illinois, on Friday, June 25, 1971, at 2:00

o’clock p.m.

Present:

Mr. David Lincoln Ader

(175 East Delaware Place, Suite 5407,

Chicago, Illinois)

appeared on behalf of plaintiffs ;

William J. Scott,

Attorney General, State of Illinois

(160 North LaSalle Street, Chicago, Illinois) by

Mr. John Lavery and

Mr. Walter K. Pyle,

Assistant Attorneys General, and

Mr. Frank S. Righeimer, Jr.,

Special Assistant Attorney General,

appeared on behalf of defendants.

The Court: Gentlemen, I have had the opportunity

to read these briefs, which I might say are thorough

and well done. Counsel’s leave granted to amend

them slightly has not in any way caused me to re-

read them, because it was the correction of minor

errors that didn’t cause me any inconvenience in the

first place. And I have listened to an excellent argu-

—_—v

—10a—

ment on both sides, and because I have had this op.

portunity to read the briefs and to do some rm

search of my own, and read some of your cases, de.

spite the importance of the question, I think I an

prepared to rule at this time.

First, to be absolutely clear as to the posture of

the matter before me, I do not, and have not refused

jurisdiction in this case. Your presence here today

arguing, I am sure, establishes that. But having

taken jurisdiction because a federal canse of action

has been alleged in the complaint, I have before me

now a motion to dismiss, principally on the ground

to state it in summary form, that the complaint fails

to state a claim upon which the Court can grant relief

and the Court lacks jurisdiction over the subject

matter.

First, some general comments that are suggested

to me hy the argument made. Counsel, Mr. Ader, very

ably argued and raised the question, “What is prog.

ress!” Not all building. and splashing of concrete

around the countryside, is necessarily progress, and

of course, more particularly whether a toll road ex.

tension, in this case, is or is not progress is debat.

able. And whether it should or should not be built,

T am sure is subject to a lot of pros and cons, and

to a genuine difference of opinion on the part of a

lot of well-intentioned people. But I don't have to get

to that. The issue here is whether this court is the

proper forum for that debate, and that is the only

issue that I address myself to.

issue, there would otherwise than those issues, not be

—lla—

the slightest basis for Federal Court intervention

into a toll road extension, which is a purely State

concern. Absent the allegations of those two issues,

I think I would have dismissed this case on my own

motion after a reading of the complaint, and I focus,

therefore, on those two issues as the only real reason

why I have any genuine concern as to whether we

4 have a cause of action here that should or should not

case from the traditional point of view, I think we

start with the assumption that Illinois has an in-

herent sovereign power to condemn, and in the tradi-

sable in the State Courts. And in the traditional

view of condemnation for the building of roads or

is shown from the exercise of this power because of

the ability to utilize the State Courts to obtain recom-

pense for the taking. But as I said, we have two

issues in the case that raise, at least the specter of

constitutional issues, and they have to be carefully

considered.

Turning to the first of these, the open meetings

issue, the complaint is somewhat vague on the viola-

tion, or the alleged violation of the Tilinois statute.

It states, as IT recall, that there were four secret meet-

ings. I have an indication from somewhere in the

record, whether an argument made when the case was

up earlier, or made today. or contained somewhere

in the briefs—that there were some public meetings

concerning the construction of the toll road. and the

5 route it would take, or the area through which it

Wiirnnsiienansiesetanielcniitees b-oaadkal

—j2a—

would go. But on reflection I don't believe that |

would really have to get into that in the context of

this moti

turbed, even by the sovereign. But I don't find that

the Constitution says that, nor do I find that Con.

gress in the Acts which you have called to my atten. _

tion has said so. And if Congress ever does precisely

Say so in some way other than the broad statements _

of policy that I pow have before me, Congress had

also better say that they are appropriating enough

money to build another courthouse and appoint 5

new judges, since we will be creating almost a uni-

versally applicable individual Federal cause of action

So the due process argument does not create, in my

mind, the basis for Federal jurisdiction here.

A much more serious concern, however, is the en-

vironmental legislation, which you called to my atten-

tion. And it is your view, and you very ably argued

it, that this environmental legislation has created a

new right in individuals which has the stature of a

—j3a—

civil or constitutional right, and is therefore cogniz-

able in the Federal Courts as civil and constitutional

rights are, by virtue of the Constitution or other

Federal legislation.

As 1 read, however, the Environmental Protection

Act, if that is the correct name of it; the various

pieces of environmental legislation that you have re-

ferred me to, I see Congress expressing its very real

environmental concerns by appropriating some money

and creating an agency and expressing a policy. And

this policy seems to be that Congress is committing

the Federal Government, and directing all of its

executive branches to a recognition in furtherance

of the policy expressed, that is, the preservation and

1 conservation of the environment, and is directing

all Federal executive agencies to cooperate with the

State Government, and is directing all individuals to

attend to their appropriate concerns and responsibili-

ties in this matter. But it never ceases to be a state-

ment of policy. And this is not enough to create

Federal jurisdiction. The statutes concerned must

reveal a Congressional intent to create, not a policy,

but a right, and a remedy, and more, a remedy the

enforcement of which is clearly entrusted to the Fed-

eral Court. The environmental legislation relied upon

read it, create rights in individuals to invoke Fed-

eral jurisdiction, nor does it empower the Federal

Courts to fashion remedies to prevent environmental

damage.

— ee |

—l4a—

With that view of the statutes, I have to, once

again, consider the extraordinary nature of the relief

you are seeking here. There is a traditional reluctance

on the part of the Federal authority to intervene jp

the affairs of a State. I am being asked here to ep.

join a State agency from extending a toll road. As]

said, an extraordinary relief. The State of Illinois

in the person of its Legislature and the Governor

and the appropriate agencies, have given considers.

tion, I am sure, under their responsibility of office,

to the needs of the citizenry of the State, and have

balanced the good against the bad in this matter and

decided, apparently, to extend the toll road. I am

being asked to substitute my judgment for theirs jp

& matter which I think is uniquely a local concern,

without even an allegation, as I gather the facts to

be, of Federal funds in this construction.

I do not believe that I have been shown the juris.

dictional authority to do what you have asked me to

do. I want to commend you, Mr. Ader, on your ex.

cellent and most lawyer-like job of skillfully con-

structing an aura of Federal right from what I regard

as the most meager Congressional indications. I have

& great deal of sympathy for your environmental

concerns. Despite that, however, I haven’t been con-

vinced, and the motion of the several defendants to

dismiss is granted.

I think that is all we need to do today, gentlemen.

(Which were all the proceedings had in the

above-entitled cause on the day and date afore-

said.)

Certificate of Court Reporter.

x Ss

—l5a—

wT eee

APPENDIX E

. | Title 28, United States Code, Judiciary and Judicial Pro-

I | cedure.

| | vol. 7, p. 7431, Ch. 3—Courts of Appeals

§ 46. Assignment of judges; divisions; hearings;

quorum.

(a) Cireuit judges shall sit on the court and its

divisions in such order and at such times as the

| court directs.

| (b) In each circuit the court may authorize the

| hearing and determination of cases and controversies

by separate divisions, each consisting of three judges.

Such divisions shall sit at the times and places and

hear the cases and controversies assigned as the court

| directs.

(d) A majority of the number of judges author-

ized to constitute a court or division thereof, as pro-

vided in paragraph (c), shall constitute a quorum.

(June 25, 1948, ch. 646, 62 Stat. 871; Nov. 13, 1963,

Pub. L. 88-176, § 1(b), 77 Stat. 331.)

Vol. 7, p. 7562, Ch. 83—Courts of Appeals

§ 1291. Final decisions of district courts.

The courts of appeals shall have jurisdiction of

appeals from all final decisions of the district courts

of the United States.

Vol. 7, p. 7560, Ch. 81—Supreme Court

Sec. 1254. Courts of appeals; certiorari; appeal; é

certified questions.

re Ee EONS ee TP ae yD Perea

Mat chek t hs ‘a Se Re |

enter atte tere ere we nee 7

——

Cases in the courts of appeals may be reviewed br

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the peti.

tion of any party to any civil or criminal case, be

fore or after rendition of judgment or decree;

Vol. 7, p. 7636, Ch. 133—Review—Miscellaneous Pro.

visions

Sec. 2101. Supreme Court; time for appeal or cer.

tiorari; docketing; stay.

tended to bring any judgment or decree in a civil ae.

tion, suit or proceeding before the Supreme Court for

review shall be taken or applied for within ninety

days after the entry of such judgment or decree, A

justice of the Supreme Court, for good cause shown,

may extend the time for applying for a writ of certi-

orari for a period not exceeding sixty days.

Vol. 7, p. 7702, Rule 4—Appeal as of Right—When

Taken

(a) Appeals in Civil Cases.

In a civil case (including a civil action which in-

volves an admiralty or maritime claim and a proceed-

ing in bankruptcy or a controversy arising therein)

in which an appeal is permitted by law as of right

from a district court to a court of appeals the notice

of appeal required by Rule 3 shall be filed with the

clerk of the district court within 30 days of the date

of entry of the judgment or order appealed from; but

if the United States or an officer or agency thereof is

a party, the notice of appeal may be filed by any par-

ty within 60 days of such entry. If a timely notice of

oe ———

—lia—

appeal is filed by a party, any other party may file

a notice of appeal within 14 days of the date on which

the first notice of appeal was filed, or within the time

otherwise prescribed by this subdivision, whichever

period last expires.

The running of the time for filing a notice of appeal

‘s terminated as to all parties by a timely motion filed

in the district court by any party pursuant to the Fed-

eral Rules of Civil Procedure hereafter enumerated in

this sentence, and the full time for appeal fixed by

this subdivision commences to run and is to be com-

puted from the entry of any of the following orders

made upon a timely motion under such rules: (1)

granting or denying a motion for judgment under

Rule 50(b); (2) granting or denying a motion under

Rule 52(b) to amend or make additional findings of

fact, whether or not an alteration of the judgment

would be required if the motion is granted; (3)

granting or denying a motion under Rule 59 to alter

or amend the judgment; (4) denying a motion for

a new trial under Rule 59. A judgment or order is

entered within the meaning of this subdivision when

it is entered in the civil docket.

Vol. 7, p. 7566, Ch. 85—§1331(a)—Federal Question

Jurisdiction

The districts courts shall have original jurisdiction

of all civil actions wherein the matter in controversy

_. . arises under the Constitution, laws, or treaties

of the United States.

i are. cs |

Vol. 7, p. 7571, Ch. 85—§1343(4)—Civil Rights Juris.

diction

The district courts shall have original Jurisdiction

of any civil action authorized by law to be commenced

by any person: (4) To recover damages or to secure

equitable or other relief under any Act of Congress

providing for the protection of civil rights, . . .

Vol. 9, p. 10657, Ch. 55—National Environmental Act, 42

U.S.C. §4321

Congressional declaration of purpose.

The purposes of this chapter are: To declare a

national policy which will encourage productive and

enjoyable harmony between man and his environ.

ment; to promote efforts which will prevent or elimi.

nate damage to the environment and biosphere and

stimulate the health and welfare of man; .. .

Title 42, United States Code, Public Health and Welfare

Vol. 9, p. 10665, Ch. 55, Sub-Ch. I—{4331(a) (b) (e)

§ 4331. Congressional declaration of national envir.

onmental policy.

(a) The Congress, recognizing the profound im.

pact of man’s activity on the interrelations of all com-

ponents of the natural environment, particularly the

profound influences of population growth, high-den-

sity urbanization, industrial expansion, resource ex-

ploitation, and new and expanding technological ad-

vances and recognizing further the critical impor-

tance of restoring and maintaining environmental

quality to the overall welfare and development of

man, declares that it is the continuing policy of the

Federal Government, in cooperation with State and

—18a—

—19a—

jocal governments, and other concerned public and

private organizations, to use all practicable means

and measures, including financial and technical as-

sistance, in a manner calculated to foster and pro-

mote the general welfare, to create and maintain

conditions under which man and nature can exist in

productive harmony, and fulfill the social, economic,

and other requirements of present and future genera-

tions of Americans.

(b) In order to carry out the policy set forth in

this chapter, it is the continuing responsibility of the

Federal Government to use all practicable means,

consistent with other essential considerations of na-

tional policy, to improve and coordinate Federal

plans, functions, programs, and resources to the end

that the Nation may—

(1) fulfill the responsibilities of each genera-

tion as trustee of the environment for succeeding

generations ;

(2) assure for all Americans safe, healthful,

productive, and esthetically and culturally pleas-

ing surroundings ;

(3) attain the widest range of beneficial uses

of the environment without degradation, risk to

health or safety, or other undesirable and unin-

tended consequences ;

(4) preserve important historic, cultural, and

natural aspects of our national heritage. and

maintain, wherever possible, an environment

which supports diversity and variety of individ-

ual choice:

(5) achieve a balance between population and

resource use which will permit high standards of

PT nee

ern

SOIR i rN

wa ay REM PRAY yee aT a ee:

STEP ET ENN 5

MON yee emrerate

CP RACERS RE NG yt

—Na—

living and a wide sharing of life’s amenities; ang

(6) enhance the quality of renewable re.

sources and approach the maximum attainabl

recycling of depletable resources.

(ec) The Congress recognizes that each perso,

should enjoy a healthful environment and that each

person has a responsibility to contribute to the pres.

ervation and enhancement of the environment.

Vol. 9, p. 10669, Ch. 56—§4371 (b) (1) (2)

(b)(1) The Congress declares that there is a na-

tional policy for the environment which provides for

the enhancement of environmental quality. * * *

(2) The primary responsibility for implementing

this policy rests with State and local governments,

Title 42, United States Code, Public Health and Welfare

Vol. 9, p. 10283, Ch. 21, Sub-Ch. I—§1983

Civil action for deprivation of rights.

Every person who, under color of any statute, or-

dinance, regulation, custom, or usage, of any State

or Territory, subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party in-

jured in an action at law, suit in equity, or other

proper proceeding for redress.

Fourteenth Amendment, United States Constitution, §1

(Nlor shall any State deprive any person of life,

liberty, or property, without due process of law....

—2la—

article XJ, Illinois State Constitution of 1970

Section 2. Rights of Individuals

Each person has the right to a healthful environ-

ment. Each person may enforce this right against

any party, governmental or private, through appro-

priate legal proceedings subject to reasonable limita-

tion and regulation as the General Assembly may i

provide by law. [The second sentence of Section 2

of Article XI shall become effective oa January 1,~

1972. See Transition Schedule Section 1(d).]

ch. 102, Hlinois Revised Statutes—Officers

Vol. 2, p. 1558, ch. 102—442—Meetings of Publie Agen-

cies

49. All official meetings open to the publice—Excep-

tions.]

§ 2. All meetings of any legislative, executive, ad-

ministrative or advisory bedies of the State, counties,

townships, cities, villages, incorporated towns, school

districts and all other municipal corporations, boards,

bureaus, committees or commissions of this State,

and any subsidiary bodies of any of the foregoing

including but not limited to committees and subcom-

mittees which are supported in whole or in part by

tax revenue, or which expend tax revenue, shall be

public meetings except for (a) personnel or collec-

tive negotiating matters between public employers

and their employees or representatives as to employ-

ment, (b) deliberations for decisions of the Illinois

Commerce Commission, the Illinois Parole and Par-

don Board and the Illinois Youth Commissiov or its

successor agency, (c) executive sessions of the IIli-

nois Crime Investigating Commission where investi-

REIL, FI nee - -

” es eed

—2a—

gations are to be discussed, (d) meetings where ¢

acquisition, of real property is being consid

where a pending court proceeding against or on

half of the particular governmental unit is bem

considered, but no other portion of such meeting

may be closed to the public, (e) grand and petit

sessions and (f) where the constitution provides ¢

a governmental upit can hold secret meetings. T

Act does not apply to the General ae or ¢

committees or commissions thereof. -

This Section does not prevent any body ec red

by this Act from holding closed sessions to eo: ic

er information regarding appointment, employme

or dismissal of an employee or officer, but no ¢

action may be taken at a closed session. This Sen

tion does not prevent an agency of goverm

from holding a closed session when Federal 9

tion requires it. This Section does not prevent "

school board or any committee thereof from hear

ing student disciplinary cases or from discussi i

matters relating to individual students in

education programs as defined in Article 14 of The

School Code at a closed session. This Section does -

not prevent an advisory committee appointed to

provide a public body with professional consultation —

on matters germane to its field of competence from

holding a closed session to consider matters of pro-

fessional ethics or performance.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.