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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1047

## Text

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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

L
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

ii

clause of the Fourteenth Amendment to the Unit-
ec States Constitution ..._ decidua ee,

A.
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

B.
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

10

10

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

lv

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

Vv

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

vi

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

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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.
A.

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

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

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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

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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) ;

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accord: Hilliard v. U.S., 310 F. 2d 631, 632 (6th Cir,
1962). Sub-section (¢) provides:

(c) The Congress recognizes that each person
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 :

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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

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,

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

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—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.

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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.”

——

j
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-

ey

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

i

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 |

10

—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

.

f

»

D

. | 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
7

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.

(c) Any other appeal or any writ of certiorari ip.
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

r

SOIR i rN

wa ay REM PRAY yee aT a ee:
STEP ET ENN 5
7

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1465%3A1. Public record. Not legal advice.