# Petition for a Writ of Certiorari — California Highway Commission v. Keith > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_2208%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1975 - **Citation:** 420 U.S. 908 ## Text States” MICHAEL RODAK, JR., ¢ ON. 4-508 CALIFORNIA HIGHWAY COMMISSION, DEPARTMENT OF PUBLIC WORKS, ez al., Petitioners, Supreme Court of the Uni vs. RALPH W. KEITH and ESTHER MAY KEITH, husband and al., —— Respondent. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit. PETITION FOR WRIT OF CERTIORARI. Harry S. FENTON, Chief Counsel, JosEPH A. Montoya, ROBERT V. CoHUNE, 107 South Broadway, Suite 9111, Los Angeles, Calif. 90012, Attorneys for Petitioners. ROBERT L. MEYER, Of Counsel. Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622 PIN Ig a re a RE A A SO ETS SUBJECT INDEX Page Petition for Writ of Certiorari ...... pa 1 i: SI MII giicacintcctssnicatcecciccentnnnmnasetaiiin 1 RE 2 C. Questions Presented for Review ................ 2 D. Statutes and Regulations Involved in the Roe su OIE SaaS ee ei ee Ce 3 E. Statement of the Case 4 F. Reasons for Granting the Writ : 7 I. Certiorari Must Issue to Disapprove the Simplistic Formula Used by Lathan and Keith for Imple- mentation of NEPA, and End Conflict With Controlling Authority Throughout the Nation, and Particularly Within the Ninth Circuit ...... 7 II A Critical Question Involving Federal-State Cooper- ation Is Presented and Should Command This I a edianiaals 11 Ill. Lathan and Keith Are Contrary io United States v. SCRAP, and Congressional and Regulatory Enactments Intended to Insure Compliance With PRIN sis liccketuntnanncaiaioninncnmiends 15 IV. If the Ninth Circuit Court Opinions in Keith and Lathan Are Correct Statements of the Law, There Can Be No Injunction Herein .................. 17 , — ie Bi ES cia SIE SEE TESS RPE SEA A DRI ii. INDEX TO APPENDICES Page Appendix A. Opinion of the United States Court of Appeals for the Ninth Circuit, Dated Decem- ber 3, 1973. Appendix B. Opinion of the United States Corrt of Appeals for the Ninth Circuit, No. 72-3072, Dated September 27, 1974. Appendix C. Opinion of the United States Court of Appeals for the Ninth Circuit, Nos. 72-2932 and 72-2974, Dated September 27, 1974. Appendix D. Motion and Order Granting in Part and Denying in Part Plaintiffs’ Motion for a Preliminary Injunction. Appendix E. Statutes and Implementing Regula- tions tt ie re. eee TABLE OF AUTHORITIES CITED Cases Page Arlington Coalition on Transportation v. Volpe (4th Cir. 1971) 458 F.2d 1323, cert. den. 409 USS. NN a ee 8 Citizens Ninieaniianibil Council v. Volpe (10th Cir. 1973) 484 F.2d 870, cert. den. 42 U.S.L.W. MIE dhe camutitenelicinciedcaadeacaieeibaainansiias tacadapiaisttles 9 Citizens of Marlboro v. Volpe (3rd Cir. 1972) 459 BP UN i cacihciaararlgs sac ose atcee he tooaderscerecoenaeaasiaoasebicns 9 Clark v. Volpe (Sth Cir. 1972) 461 F.2d 1266, affirm. 342 Fed. Supp. 1324 ...............--...--.-csesssss 9 Environmental Defense Fund v. Froehlke (8th Cir. Se GE te ND Critic sncctcnccietselbonsianams 9 Jicarilla Apacne Tribe v. Morton (9th Cir. 1973) ee ioeccccsecenicnccccapacemionintnncatancins 9, 10 LaRaza Unida v. Volpe (9th Cir. 1973) 488 F.2d 559, cert. den. 409 U.S. 890 ......000002....e 9, 13 Lathan v. Brinegar, No. 72-2932 ...............---ss+000+-+- 2 Lathan v. Volpe (9th Cir. 1971) 455 F.2d 1111 .... REED ee Ba 9, 10, 11, 12, 13, 14, 16, 17 Lathan v. Volpe, Nos. 72-2974 and 72-2932 — 5 Env. Law Rep. 20083) ................ 1 Lathan v. Washington State Highway Ostiaiicn, No. 72-2974 ..........--- : 2 Monroe County Conservation Council, Inc. v. Volpe (2nd Cir. 1972) 472 F.2d 693 ..... 8 Movement Against Destruction v. Volpe (4th Cir. 1974) 499 F.2d 29, affirm. Movement Against Destruction v. Volpe, 361 Fed. Supp. 1360 ........ § Pennsylvania Environmental Council, Inc. v. Bart- lett (3rd Cir. 1971) 454 F.2d 613 = 9 RE REVO RY etme FEMI ITIL IR GAL A PP TOE GI RELL Ph Sete Rea ATMEL GSE Gt cee pe iv. Page Ragland v. Muller (Sth Cir. 1972) 460 F.2d 1196 .. Ralph W. Keith v. John A. Volpe (D.C. C.D. Cal. 1972) 352 Fed. Supp. 1324 .......... i a ssheietiniishdaiahamaiaiba 7, 9, 10, 11, 13, 14, 15, 16, Robinswood ee Club v. Volpe (9th Cir. 1974) .... F.2d ...., rep. 5 ELR 20378, 6 ERC 1401 .. Pee ey Re NOC ORES IIIT. 9, San Antonio ia ian Society v. Texas (Sth I nc, UNEIIEIN sad - The FHWA, which administers the Federal-Aid High- way Program, ascertains that the state highway departments have adhered to federal law and regulations before authorizing reimbursement to the states for a portion of the federal-aid high- ways’ cost. This adherence to federal standards is assured by requiring the state highway departments to obtain federal ap- proval at various stages during the conception and building of a highway project. The matrix of rules governing the stages of FHWA approval is found not only in the Federal-Aid Highway Act, 23 U.S.C. §101 et seq., but also in the Code of Federal Regulations and numerous FHWA directives, including Policy and Procedure Memoranda (PPM’s), Instructional Memoranda (IM’s) and Ad- ministrative Memoranda (AM’s).® The key concept in the Federal-Aid Highway Program is the “project.” For example, state highway departments must submit (3) the Federal-aid secondary system (§102(c)), which may inelude “farm-to-market roads, rural mail routes, publie school bus routes, local rural roads, county roads, township roads, and roads of the county road class . . . .” I-90 is part of the Interstate System. ®We must and do give considerable deference to the regulations promulgated by the Secretary of Trarsportation and published in the Code of Federal Regulations. 23 U.S.C. §315 authorized the Secretary of Commerce to “prescribe and promulgate all needful rules and regu- lations for the carrying out of the provisions of this title.” This authorization was transferred to the Secretary of Transportation in 1966 pursuant to 49 U.S.C. §1655(a). See generally K. Davis, Administra- tive Law Treatise, §5.04 (1970 Supp.) The legal effect of the PPM’s, IM’s and AM’s however, is much less clear. The Department of Transportation has ruled that the FHWA’s memoranda and orders do not rise to the status of regulations: “The [Federal Highway] Administrator shall promulgate and require the observance of policies and procedures, and may take other action as he deems appropriate or necessary for carrying out the provisions and purposes of Federal laws, the policies of the Federal Highway Adminis- Claude 8. Brinegar, etc., et al. 5 “programs of proposed projects” for approval under 23 U.S.C. §105(a), and section 106(a) requires approval of plans, specifi- cations and estimates for “each proposed project” included in a program approved under section 105(a). Unfortunately, a “proj- ect” assumes chameleon-like characteristics under the Act.? For example, a state highway department could seek to obtain FHWA approval of a “project” which includes all the items of work necessary to construct Interstate X, a fifty-mile highway. On the other hand, it could also submit to the FHWA several “projects,” each of which forms a part of highway X. Thus, the department might simply submit a grading and paving “project” for twenty miles of I-X, or a right-of-way acquisition “project” for five miles of I-X, or simply a demolition “project” for one mile of the highway.’ The statutory and regulatory definitions of “project” are broad enough to embrace a one-mile demolition “project” or a fifty-mile planning, surveying, mapping, right-of- way acquisition, relocation assistance, demolition, grading and paving “project.”® tration, and the regulations in this part. No such direction, policy, rule, procedure, or interpretation contained in a Federal Highway Adminis- tration order or memorandum shall be considered a regulation or create any right or privilege not specifically stated therein.” 23 C.F.R. §1.32(a) (1973). But see Gray, Environmental Requirements of Highway and Historic Preservation Legislation, 20 Catholic U. L. Rev. 45, 61-2, n. 66 (1970). 7Cf. Named Individual Members of the San Antonio Conservation Society v. Texas Highway Dep’t, 5 Cir. 1971, 446 F.2d 1013, 1022-24. 8See Peterson and Kennan, supra, n. 2 at 50003. Section 101(a) of the Act defines the term “project” to mean “an undertaking to construct a particular portion of a highway, or if the context so implies, the particular portion of a highway so constructed.” That section defines the term “construction” to mean “the supervising, inspecting, actual building, and all expenses inci- dental to the construction or reconstruction of a highway, including locating, surveying, and mapping . . . , acquisition of rights-of-way, improvements which directly facilitate and control traffic flow, such as grade separation of intersections, widening of lanes, channeliza- —_ 6 Roosevelt Lathan and Pearline Lathan, et al. vs. With this caveat, we proceed to examine the statutory, regula- tory and administrative scheme controlling this litigation.1° 1. Program approval. The first decision that must be made by the FHWA is whether to approve a state’s federal-aid highway program. Under 23 U.S.C. §105(a), a state highway department “of any State desir- ing to avail itself of the benefits of this chapter shall submit to the Seeretary for his approval a program or programs of pro- posed projects for the utilization of the funds appointed.” Every project in a proposed program must be “located upon an ap- proved Federal-aid system,” or it will not receive approval. The Secretary may approve a program in whole or simply approve individual projects within a program. Jd. 2. Public hearings. a. Those that have been held. (1) The 1963 hearing. 23 U.S.C. §128(a) provides that any state highway depart- ment which submits plans for a federal-aid highway project involving the “going through” of a city must certify to the See- retary that it has held public hearings and has considered the effect of such locations. As originally enacted," section 128(a) required only that the economic effects of such a highway be considered at the hearing. This was the statute in effect when, in 1963, WSDH held a corridor or location hearing on the freeway segment. (See Lathan v. Volpe, supra, 455 F.2d at 1114.) At that time there was no tion of traffic, traffie control systems, and passenger loading and unloading areas.” 23 U.S.C. §101(a). 23 C.F.R. §1.2(b) (1973) defines a “project” as “[a)n undertaking by a State highway department for highway construction, including preliminary engineering, acquisition of rights-of-way and actual eonstruction, or for highway planning and research, or for any other work or activity to carry out the provisions of the Federal laws for the administration of Federal aid for highways.” 10See also Lathan v. Volpe, supra, 455 F.2d at 1114-16. But see Peterson and Kennan, supra, n. 2, at 50017-18. 11Act of Aug. 27, 1958, Pub. L. No. 85-767, 72 Stat. 902. Claude S. Brinegur. etc., et al. 7 Regulation dealing with such a hearing; it was governed by a PPM. In Lathan v. Volpe, supra, we rejected an attack, based upon due process grounds, upon the validity of this 1963 hear- ing. 455 F.2d at 1122. We assume, for the purpose of this deci- sion, that the hearing complied with §128(a) as it then read, and with the then applicable PPM. Thereafter, the FHWA approved the proposed location or corridor. (2) The 1970 hearina. Section 128(a) was amended effective August 23, 1968,!2 to require that the hearings also consider the social and environ- mental impact of the proposed highway. The amended version reads as follows (the requirements added in 1968 are italicized) : “Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town, or village, either incor- porated or unincorporated, shall certify to the Secretary that it has had puolie hearings, or has afforded the opportunity for such hearings, and has considered the economic and social effect of such a location, its impact on the environ- ment, and its consistency with the goals and objectives of such urban planning as has been promulgated by the com- munity.” On January 1, 1970, the National Environmental Policy Act of 1969, 42 U.S.C. §§4321-4347, became effective. We discuss its impact on the hearing issue later in this opinion. On June 2-6, 1970, WSDH held a design public hearing on the Seattle segment.' This hearing was governed by PPM 20-8, effective January 14, 1969. It defines and describes a “highway design publie hearing” as set out in the margin.’* Federal ap- 12Act of Aug. 23, 1968, Pub. L. No. 90-495, §24, 82 Stat. 828. 13See n. 2, supra. 14PPM 20-8, quoted in 3 Env. 1. Rep. 46505: 4. DEFINITIONS (As used in this PPM) ~~ ..@ .«@ “bh. A ‘highway design publie hearing’ is a public hearing that: (1) Is held after the route location has been approved, but before the State highway department is committed to a specific design proposal; 8 Roosevelt Lathan and Pearline Lathan, et al. vs. proval of the design was received on June 23, 1972. Again, we assume that the hearing complied with these requirements. (2) Is held to ensure that an opportunity is afforded for effective participation by interested persons in the process of determining the specific location and major design features of a Federal-aid highway; and (3) Provides a publie forum that affords a full opportunity for presenting views on major highway design features, including the social, economic, environmental, and other effects of alternate de- e. ‘Social, economic, and environmental effects’ means the direct and indirect benefits or losses to the community and to highway users. It includes such effects that are relevant and applicable to the particular location or design under consideration such as: (1) Fast, safe and efficient transportation. (2) National defense. (3) Economie activity. (4) Employment. (5) Reereation and parks. (6) Fire protection. (7) Aesthetics. (8) Publie utilities. (9) Public health safety. (10) Residential and neighborhood character and location. (11) Religious institutions and practices. (12) Conduct and financing of Government (including effect on local tax base and social service costs). (13) Conservation (including erosion, sedimentation, wildlife and general ecology of the area). (14) Natural and historic landmarks. (15) Noise, and air and water pollution. (16) Property values. (17) Multiple use of space. (18) Replacement housing. (19) Edueation (including disruption of school district opera- (20) Displacement of families and businesses. (21) Engineering, right-of-way and construction costs of the project and related facilities. (22) Maintenance and operating costs of the project and related facilities. (23) Operation and use of existing highway facilities and other transportation facilities during construction and after completion. This list of effects is not meant to be exclusive, nor does it mean that each effect considered must be given equal weight in making a determination upon a particular highway location or design. . + . SET RA Claude S. Brinegar, etc., et al. 9 b. The question whether there must be another hearing. In December, 1970, section 128(a) was further amended™ to require the state to file a repert with the Secretary indicating the consideration given to the economic, social, environmental and other effects of a proposed highway. The Secretary has now adopted regulations governing “corri- dor” and “design” hearings. Part 790 of 23 Code of Federal Regulations (1973) expands upon the requirements of section 128(a). The purpose of these regulations “is to insure, to the maximum extent practicable, that high- way locations and designs reflect and are consistent with Federal, State, and local goals and objectives. The rules, pol- icies, and procedures established by this part are intended to afford full opportunity for effective public participation in the consideration of highway location and design pro- posals by highway departments before submission to the Fed- eral Highway Administration (FHWA) for approval. They provide a medium for free and open discussion and are designed te encourage carly and amicable resolution of con- troversial issues that may arise.” 23 C.F.R. §790.1(a) (1973). 9. CONSIDERATION OF SOCIAL, ECONOMIC, AND ENVIRONMENTAL EFFECTS State highway departments shall consider social, economic, and environmental effects before submission of requests for location or design approval, whether or not a publie hearing has been held. Consideration of social economic, and environmental effects shall inelude an analysis of information submitted to the State highway department in connection with publie hearings or in response to the notice of the location or design for which a State highway depart- ment intends to request approval. It shall also include consideration of information developed by the State highway department or gained from other contacts with interested persons or groups. 7 . oo 10. LOCATION AND DESIGN APPROVAL . * . * (b) Design study reports must describe essential elements such as design standards, number of traffic lanes, access control features, general horizontal and vertical alignment, right-of-way requirements and location of bridges, interchanges, and other structures.” 15Act of Dee. 31, 1970, Pub. L. No. 91-305, Tit. I, §135, 84 Stat. 1734. i tia r ley SRN RR tse et en one i 4 10 Roosevelt Lathan and Pearline Lathan, et al. vs. The regulations require a state highway department to obtain two FHWA approvals in order to receive federal reimbursement : “route location approval,” which follows a “corridor public hear- ing,”'® and “design approval,”!7 which follows a “design public hearing.”18 The regulations thus require that the state highway depart- ments must hold two public hearings, or provide an opportunity for those hearings.!® First, there must be a “corridor publie hear- ing,” which is held “to ensure that an opportunity is afforded for effective participation by interested persons in the process of \ determining the need for, and the location of, a Federal-aid highway.” 23 C.F.R. §790.3(a)(2)(1973). It must provide “a public forum that affords a full opportunity for presenting views \ on each of the proposed alternative highway locations and the social, economic, an:l environmental effects of those alternate loca- \ tions.” 23 C.F.R. §790(a) (3) (1973). Seeond, the state highway department must hold a “highway design public hearing,” which is held “to ensure that an oppor- tunity is afforded for effective participation by interested per- sons in the process of determining the specific location and major design features of a Federal-aid highway,” and to provide “a public forum that affords a full oppertunity for presenting views on major highway design features, including the social, economic, environmental, and other effects of alternate designs.” 23 C.F.R. §790.3(b) (2)-(3).20 , ae 16See 23 C.F.R. §790.9(e) (1) (ii) (1973). 17See 23 C.F.R. §790.3(d) (1973). 18See 23 C.F.R. §790.9(e) (2) (iii) (1973). 19See 23 C.F.R. §§790.1(b), 790.5(a) (1973). 20The “social, economic, and environmental effects” which must be considered in both a corridor hearing and a design hearing (see 23 C.F.R. §§790.3(a)(3) and (b)(3) (1973)) are now defined in 23 C.F.R. §790.3(e) (1973): “(e) ‘Social, economic, and environmental effects’ means the direct and indirect benefits or losses to the community and to high- way users. It includes such effects that are relevant and applicable to the particular location or design under consideration as to: (1) Regional and community growth including general plans and proposed land use, total transportation requirements, and status of the planning p : Se oe an eee ee OBES RT OLLI Y ERE PONE IL ESE LOGIT CUO RR. ae SFE IRE IO Claude S. Brinegar, etc., et al. 11 Neither location approval nor design approval by the FHWA creates a contractual obligation on the part of the federal gov- ernment to reimburse a state for costs incurred in the project. There is one more stage to be completed before the federal gov- ernment is finally committed to the project. This is called plans, specifications and estimates approval (PS&E approval). After a state highway department has certified to the Seere- tary that it has held appropriate section 128(a) hearings, or has afforded the opportunity for such hearings, the state department must “submit to the Secretary for his approval, as soon as prac- ticable after program approval, such surveys, plans, specifi- cations, and estimates for each proposed project included in an approved program as the Secretary may require... . |The Secretary’s] approval of any such project shall be deemed a contractual obligation of the Federal Govern- ment. .. .” 23 U.S.C. §106(a) (emphasis supplied). (2) Conservation and preservation including soil erosion and sedimentation, the general ecology of the area as well as manmade and other natural resources, such as: park and recreational facilities, wildlife and waterfowl areas, historic and natural landmarks. (3) Public facilities and services including religious, health, and educational facilities; aud public utilities, fire protection and other emergency services. (4) Community cohesion including residential and neighborhood character and stability, highway impacts on minority and other specifie groups and interests, and effects on local tax base and property values. (5) Displacement of people, businesses ,and farms including relocation assistance, availability of adequate replacement housing, economic activity (employment gains and losses, ete.). (6) Air, noise, and water pollution including consistency with approved air quality implementation plans, FHWA noise level standards, and any relevant Federal or State water quality standards (as set forth in Parts 770, 771, 772, and 773 of this chapter). (7) Aesthetic and other values including visual quality, such as: ‘view of the road’ and ‘view from the road,’ and the joint develop- ment and multiple use of space. This listing is not meant to be exclusive, nor does it mean that each effect considered must be given equal weight in making a determina- tion upon a particular highway location or design.” 12 Roosevelt Lathan and Pearline Lathan, et al. vs. The federal government is not obligated to fund a project until the Secretary has given approval to a project. Monroe County Conservation Council, Inc. v. Volpe, 2 Cir., 1972, 472 F.2d 693, 699. After PS&E approval has been given to a “project,” a state is entitled to full reimbursement of the federal government’s share of the project’s cost if the department has conformed to all applicable federal laws.2! It is important to emphasize that PS&E approval is given to an individual “project,” which, as noted infra, p. 13, may consist of all the work on an entire highway or merely the right-of-way acquisition for an inter- change. The question now before us is whether the WSDH must now hold, before applying for PS&E approval, another hearing com- plying with section 128(a) as it now reads, and as it may be affected by NEPA. The parties have framed the question in terms of “retroac- tivity”—i.e., are amended section 128(a) and NEPA “retroac- tive” so that a new “corridor” or “location” hearing must be held, or a new “design” hearing must be held, thus in effect “nullifying” the two hearings that have been held. This position misses the mark. I-90 is an ongoing project, to which the federal government is not yet committed because there has been as yet no PS&E approval. The district court sits in this case as a court of equity, as do we, and it is well settled that a court of equity may, and often does, apply the law in effect at the time of judg- ment, rather than that in effect when the action is filed. Chap- man v. Sheridan-Wyoming Co., 1950, 338 U.S. 621, 630. Moreover, we have no doubt that the Congress can require that there now be a hearing complying with amended section 128(a) and witn the policies of NEPA, and we are of the opinion that it has done so. 21Under 23 U.S.C. §110(a), the Secretary cannot enter into a “formal project agreement” with a state highway department until he has given PS&E approval, and under 23 U.S.C. §121(c), no federal payments may be made unless the project is located on a Federal-aid highway system and is covered by a project agreement. Moreover, under 23 U.S.C. §121(b), a state is entitled to final payment from the federal government only if the project has been completed “in accordance with the plans and specifications. . . .” Claude S. Brinegar, etc., et al. 13 First, section 128(a) speaks in the present tense: “Any State highway department which submits plans .. . shall certify to the Secretary that it has had public hear- ings . . . and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban plan- ning as has been promulgated by the community.” (Empha- sis supplied) This is the law currently in effect. Moreover, to obtain PS&E approval, WSDH must submit plans, specifications and estimates » to FHWA. When it does so, it must have held a hearing or hear- ings at which consideration has been given to the matters now listed in section 128(a), or it must have afforded the opportunity for such hearings. This view of the statute’s present effect upon the inchoate 1-90 project is strengthened by the adoption of NEPA. In that stat- ute, the Congress, recognizing “the critical importance of restor- ing and maintaining environmental quality to the overall welfare and development of man,” declares that it is the policy of the federal government “to create and maintain conditions under which man and nature ean exist in productive harmony, and ful- fill the social, economic, and other requirements of present and future generations of America.” 42 U.S.C. §4331(a). To realize this goal, Congress has directed that, “to the fullest extent pos- sible . . . the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies” of NEPA. 42 U.S.C. §4332(1). (Emphasis added) The meaning of the phrase “to the fullest extent possible” was clearly expressed by the Senate and House conferees who wrote the language: “[I]t is the intent of the conferees that the provision ‘to the fullest extent possible’ shall not be used by any Federal agency as a means of avoiding compliance with the direc- tives set out in section [4332]. Rather, the language in sec- tion [4332] is intended to assure that all agencies of the Federal Government shall comply with the directives set out in said section ‘to the fullest extent possible’ under their statutory authorizations and that no agency shall utilize an PEL BP ar lt ten RE aS Maem een canyes - 3 FEIN TLRS ONE LSE: ORS ENR eas Tle pe rene Mae ae RRSP ete a eager: ERED Ot SEY TO TRON ‘ 14 Roosevelt Lathan and Pearline Lathan, et al. vs. excessively narrow construction of its existing statutory au- thorizations to avoid compliance.”22 The language “to the fullest extent possible” indicates an in- tent to apply NEPA’s standards to ongoing projects such as I-90. It has been so construed by the Council on Environmental Qual- ity, a NEPA-created entity. Its language concerning the appli- eability of NEPA’s requirement of environmental impact state- ments to ongoing projects demonstrates the approach which should also be taken to the question of section 128(a) hearings. To paraphrase: “To the maximum extent nails the Section [128(a) ]} procedure should be applied to further major Federal actions having a significant effect on the environment even though they arise from projects or programs initiated prior to the enactment of [NEPA] on January 1, 1970. Where it is not practicable to reassess the basic course of action, it is still important that further incremental major actions be Shaped so as to minimize adverse environmental consequences. It is also important in further action that account be taken of environmental consequences not fully evaluated at the out- set of the project or program.” Council on Environmental Quality, Statements on Proposed Federal Actions Affecting the Environment—Guidelines, 11, 36 Fed. Reg. 7724, 7727 (April 23, 1971). (Emphasis added) It is clear that “further major Federal actions having a signifi- cant effect on the environment” will occur here. As noted earlier, formal federal commitment to this project has not yet occurred, because no PS&E approval has been given. The Federal-Aid Highway Act envisions numerous areas of further federal par- ticipation beyond corridor and design approval: aiding states in the aequisition of rights-of-way,?* regulation of the letting of con- tracts,24 final inspection and approval before construction,25 and 22115 Cong. Rec. 40417, 40418 (“Major Changes in S. 1075 as Passed by the Senate”); 115 Cong. Ree. 39701, 39703 (House Conference Report on S. 1075). 23See 23 U.S.C. §107. 24See 23 U.S.C. §112. 25See 23 U.S.C. §114(a). OL SRIEE TREC NS ANE TON MAR DS HET ES A Mite werd i as it sada tts 2 i Claude'S. Brinegar, etc., et al., 15 reimbursement to the states of construction costs,26 to name but a few.26 Although WSDH and the federal government ll had various .formal and informal contracts since 1963 concerning the free- way segment, the Secretary of Transportation has not given PS&E approval to this “project,” and the federal government is therefore not contractually obligated to provide highway aid, 23 U.S.C. §106(a). If and when the Seeretary does give PS&E approval to the freeway segment, however, he must apply the law which is in effect when he commits federal funds to the proj- ect. This means that there must have been a hearing held or opportunity for a hearing in compliance with section 128(a) as it now reads, at which the matters considered include those now specified in section 128(a) and those now specified in‘ NEPA, particularly 42 U.S.C. §4332(2)(C) and (2)(D).27 We cannot ignore, as judges, what we know as citizens. The knowledge and attitudes of the public, of the Congress, and of state and local governments about the environmental, and social consequences of freeway building have drastically changed within the last decade. With knowledge has come con¢dern, and that con- 26See 23 U.S.C. $121. 26aBy listing these examples we do not at all imply that there must be. an additional section 128(a) hearing before each step is taken. See page 13, infra. 27(C) inelude in every andiietaiion 4 or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human cuvircoment, a detailed statement by the respon- sibie official on— (i) the environmental pices of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be imple- mented. e s & (D) study, develop, and describe appropriate alternatives to recom- mend courses of action in any proposal which involves unresolved con- flicts concerning alternative uses of available resources” 16 Roosevelt Lathan and Pearline Lathan, et al. vs. cern is reflected in the 1968 and 1970 amendments to section 128(a) and in NEPA. The proposed segment of I-90 is to be built in the future, an decisions about it are to be governed by the law at it reads now, not as it read in 1963. In short, we hold under the facts here that the policies of NEPA and section 128(a) must be construed together and that section 128(a) provides a public forum at which, among other things, the NEPA required EIS will be a basis for the hearing. In so holding, we have the support of our own prior decisions, and of those of other circuits. We have held that agencies are not relieved of the obligation to evaluate the environmental con- sequences of their actions merely because a particular project was initiated before the effective date of NEPA. See Jicarilla Apache Tribe of Indians v. Morton, 9 Cir., 1973, 471 F.2d 1275, 1282-83; Lathan v. Volpe, supra, 455 F.2d at 1120-21. With respect to ongoing projects, section 128(a) and the regulations which implement it must be interpreted and administered, “to the fullest extent possible,” in accordance with the policies of NEPA. In appropriate cases this may mean total reassessment of the project in light of its potential evironmental impact, i.e., the consideration of its wholesale alteration or abandonment. Cf. Jicarilla Apache Tribe of Indians v. Morton, supra. Although NEPA itself does not provide for public hearings, its general directives contain one clear message: Environmental protection is a part of every federal agency’s mandate; the Act requires “agencies to consider environmental issues just as they consider other matters within their mandates.” Calvert Cliffs’ Coordinating Comm., Inc. v. United States Atomic Energy Comm'n, D.C.Cir., 1971, 449 F.2d 1109, 1112. (Emphasis in orig- inal) Section 128(a) provides the forum for doing so. In cases in which the Seeretary has not given PS&E approval to a project, other Cireuits have ordered new section 128(a) hearings. Monroe County Conservation Council v. Volpe, 2 Cir., 1972, 472 F.2d 693, 701-02; Arlington Coalition on Transp. v. Volpe, 4 Cir., 1972, 458 F.2d 1328, 1337-38.28 *8While the court in Arlington Coalition states at one point that “P. S. & E. approval has not yet been given,” 458 F.2d at 1332, the court at another point states that “by July 28, 1966, acquisition-of-right- of-way agreements between the state highway department and the Secre- Claude S. Brinegar, etc., et al. 17 We think that section 128(a) embodies its own test as to when a hearing must have been held—before WSDH “submits plans” —i.e., in this ease before WSDH seeks PS&E approval. We there- fore do not discuss the relative merits of the “tests” adopted in Arlington Coalition, supra, and in Monroe County, supra. We do not mean that there must have been a new hearing every time that WSDH submits some change in plans to the Secretary. We are fully aware of the complexity of such a major porject as the I-90 segment, and of the fact that, in such a project changes in plans may be necessary as planning or actual work proceeds. We refer only to major submission, and these are set out in the Federal-Aid Highway Act and the Secretary’s regulations as we have outlined them in this opinion. Nor are repeated section 128(a) hearings required in any case in which a hearing, fully complying with section 128(a) and the policies of NEPA, has once been held, at least absent some really drastic changes in plans occurring thereafter. We stress that the hearing under section 128(a) must take into account the factors that are now outlined in that section and in NEPA. It will not be merely a new “corridor” or “location” tary had been entered into for the entire project,” and the state had been reimbursed $28,679,123.07. Id, at 1328. The court therefore may have meant to say at p. 1332 that no PS&E approval for construction In Monroe County, the state highway department had not yet sub- mitted its plans, specifications and estimates, but it was undisputed that the federal government was prepared to give PS&E approval after at 696. Where the highway in question has actually been under i the amendments do not apply. Wildlife Preserves, ir., 1971, 443 F.2d 1273. That is not this case. See ~ a = SJ 2 8 w also Citizens Environmental Council v. Volpe, 10 Cir., 1973, 484 F.2d 870. 18 Roosevelt Lathan and Pearline Lathan, et al. vs. hearing or “design” hearing, although of course what was consid- ered at those hearings can be considered. The major focus must be on the total impact of the project as a whole, including whether it should be built at all, as well as whether, if it is to be built, it should be built where and as previously planned. e. The claimed sufficiency of the June, 1970, hearing. To all of the foregoing the state defendants respond that the design hearing that was held in June of 1970 did comply with section 128(a) as amended, that the matters that we have out- lined were considered at that hearing, and that in addition WSDH has had a large number of meetings with interested per- sons and groups at which the same matters were considered. In short, they claim that there has been substantial compliance with section 128(a), and that no further hearing should be required. On the record before us, we cannot tell whether this claim is sus- tainable. We do note at least one weakness in it. At the time of the hearing, no EIS had been prepared, and it was the position of WSDH that none was required. See Lathan v. Volpe, supra, 455 F.2d at 1120-21. Thus it is not as likely that full considera- tion was given to the environmental impact of I-90 as would have been given had there been an EIS available for discussion at the hearing. Nevertheless, because the point is strongly pressed, the district court on remand may, if it wishes, consider this claim. The district court may feel, however, that the case can and should be disposed of more expeditiously by requiring a new hearing or opportunity for a hearing, of the type that we have outlined. The district court might feel that a decision that the June, 1970, hearing was sufficient would simply invite another appeal and further delay. This question we leave to the district court. WSDH has advised us that the state and FHWA have now prepared a new EIS for the Seattle segment “in strict com- pliance with’’ the district court’s order, entered following our remand. A copy has been lodged with this court. We decline to consider whether it complies with the district eourt’s order. That is for the district court. However, assuming that the proper administrative approval has been received, this new EIS should form one of the bases of the new section 128(a) hearing, if such Oe eee = ~ Claude 8. Brinegar, etc., et al. 19 hearing is ordered. The importance of the EIS in the decision- making process cannot be underestimated; the EIS “seeks to ensure that each agency decision maker has before him and takes into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance. Only in that fashion is it likely that the most intelligent, optimally beneficial decision will ulti- mately be made.” Calvert Cliffs’ Coordinating Comm. Inc. v. United States Atomic Energy Comm’n, supra, 449 F.2d at 1114. The new EIS should also be made available to the public before the section 128(a) hearings. See FHWA PPM 90-1 at {6c (August 24, 1971), quoted in 3 Env. L. Rep. 46106, 46108. Of course, the hearing itself should not necessarily be limited to the contents of the new EIS. The hearing is “meant to be a ‘town hall’ type meeting in which people are free to express their views. The hearing was not intended to be a quasi-judicial or adversary legal type hearing.” H. Rep. No. 911554, 91st Cong., 2d Sess. (1970), quoted in 1970 U.S. Code Cong. & Admin. News, 5392, 5396. Defendants urge expedition in the disposition of this case. They represent that the costs of construction are rising at the rate of more than $30,000,000 per year. Furthermore, they have pointed to 23 U.S.C. 103(g), which provides, in part: “Any segment of the Interstate System, with respect to which a State has not submitted by July 1, 1975, a schedule for the expenditure of funds for completion of construction of each segment or alternative segment within the period of availability of funds authorized to be apportioned for eom- pletion of the Interstate System, and with respect to which the State has not provided the Secretary with assurances satisfactory to him that such schedule will be met, shall be removed from designation as a part of the Interstate System.” We agree that the district court should proceed with expedition. Cf. Lathan v. Volpe, supra, 455 F.2d at 1120-21. 20 Roosevelt Lathan and Pearline Lathan, et al. vs. d. Res judicata and laches. The defendants argue that our mandate in Lathan v. Volpe, supra, is res judicata on the section 128(a) question, because we there rejected Citizens’ due process challenge to the 1963 corri- dor hearing.*® This is not correct. The ease has not proceeded to final judgment, and the applicable doctrine is therefore law of the case, not res judicata. See 1B J. Moore, Federal Practice 10.404[1] (2d ed. 1974). Although the object of both rules of law is finality in litigation, the former doctrine applies only to foreclose the reconsideration of matters actually decided. See Electrical Research Prod. v. Gross, 9 Cir., 1941, 120 F.2d 301, 307.39 All that we decided in Lathan v. Volpe, supra, was that the plaintiffs’ attack on the 1963 hearing, on procedural due process grounds, was barred by laches. Because we did not con- sider the effects of the section 128(a) amendments on the previ- ous appeal, that issue is properly before us now. Id. Nor can we say that the doctrine of laches precludes plain- tiffs from raising the section 128(a) issue. “Laches requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.” Costello v. United States, 1961, 365 U.S. 265, 282. It cannot be said here that plaintiffs have slept on their rights since 1963; the earliest date that this claim arose was August 23, 1968, the effec- tive date of the initial amendments to section 128(a). Moreover, NEPA, which has a substantial influence upon our interpreta- 29We there stated: “Plaintiffs third contention is that the 1963 public hearings on the proposed location of I-90 deprived them of certain procedural rights guaranteed by due process of law. We need not decide the merits of this contention, since we think the equitable defense of laches is available to defendants. Plaintiffs failed to raise this claim for over seven years after the hearing took place, during which time they knew of the hearing and its alleged deficiencies. Defend- ants have expanded a substantial sum of money in reliance on the validity of that proceeding. Thus the two essential elements of laches—lack of diligence by plaintiff and injurious reliance thereon by defendant—are present and plaintiffs are precluded from chal- lenging the validity of the hearing at this late date.” 455 F.2d at 1122. 39See also DePinto v. Landoe, 9 Cir., 1969, 411 F.2d 297 (court of appeals had expressly reserved the issue). ” Claude 8. Brinegar, etc., et al. 21 tion of the effects of the amendments, see supra, was not opera- tive until January 1, 1970, less than six months before this action was filed. Thus, Citizens has not been guilty of an extreme lack of diligence in raising this issue. Moreover, WSDH has not suffi- ciently demonstrated the extent of its reliance upon whatever delay there may have been. Under these circumstances, the doc- trine of laches should not be applied to bar the litigation of this important publie issue. Cf. Arlington Coalition on Transp. v. Volpe, supra, 458 F.2d at 1329-30; Ward v. Ackroyd, D.Md., 1972, 344 F.Supp. 1202, 1212-13. We do not here attempt to set out a rule for future highway litigation, since the question of whether laches bars an action in a particular case depends upon the facts and circumstances of that case and is a question addressed primarily to the discretion of the trial court. Burnett v. New York Central R.R. Co., 1965, 380 U.S. 424, 435; Gardner v. Panama R.R. Co., 1951, 342 U.S. 29, 30. Finally, as we have previously stated, the issue here is not the validity of the 1963 hearing. We do not doubt its validity. The issue is whether present law should now be applied to this par- tially inchoate major federal project. II. The Environmental Impact Statement and Section 4(f) Issues. As we have seen, WSDH now maintains that a proper EIS and 4(f) statement regarding the Seattle segment has been pre- pared. It has thus virtually abandoned its cross-appeal. Neverthe- less, we consider the question because there may be further attack on the EIS on remand.** 31Citizens argues also that the district court erred in permitting WSDH to attach summaries and comments to the environmental impact statement, rather than the comments in their entirety. Although the fed- eral defendants argue that the district court’s order is essentially correct, WSDH has stated that it intends to attach all comments received. This concession disposes of the issue in light of our conclusion that Citizens cannot challenge the district court’s order permitting WSDH to prepare the impact statement. 22 Roosevelt Lathan and Pearline Lathan, et al. vs. The Administrative Procedure Act, 5 U.S.C. §706, prescribes the seope of review. So far as pertinent here, it provides: “. .. The reviewing court shall— * #* # (2) hold unlawful and set aside agency action, findings, and conclusions found to be— (A) arbitrary, capricious, an abuse of discretion, or other- wise not in accordance with law; + * * (D) without observance of procedure required by law.” Subsection (2)(A) refers primarily to substantive decisions committed to the Agency in the first instance. It may be appli- cable (we do not say that it is) where it is claimed that the Agency, in deciding whether to proceed with a project, has ignored conclusions or considerations stated in an EIS. Such a question is for the Agency, not the courts, to decide. The scope of judicial review in such a case is narrow, if review be avail- able at all. See 5 U.S.C. §701(a) (2); Citizens to Preserve Over- ton Park v. Volpe, 1971, 401 U.S. 402, 410; Environmental De- fense Fund, Inc. v. Armstrong, 9 Cir., 1973, 487 F.2d 814, 822, n. 13. We could reverse the agency, if at all, only in a rare case, and only if we found its action arbitrary, capricious, an abuse of discretion, or contrary to law. We could not substitute our judgment for that of the Agency. See Jicarilla Apache Tribe of Indians v. Morton, 9 Cir., 1973, 471 F.2d 1275, 1279-80, 1281; Citizens to Preserve Overton Park, supra, 401 U.S. at 416. On the other hand, subsection (2)(D) provides that we may set aside agency action if we find it to be without observance of procedure required by law. We regard the question whether an EIS complies with the requirements of NEPA as a procedural question, governed by §706(2)(D). See Jicarilla Apache Tribe, supra, 471 F.2d at 1280-81. In Life of the Land v. Brinegar, 9 Cir., 1973, 485 F.2d 460, 469, we quoted Jicarilla Apache Tribe, supra, regarding substantive decisions, but then apparently applied §706(2)(A) to the question whether the EIS satisfied the require- ments of NEPA. This appears to be a misreading of Jicarilla Apache Tribe, but our reading of Life of the Land convinces us Claude S. Brinegar, etc., et al. 23 that the result would be no different if we had thought that §706(2)(D) applied. We later said as much in Environmental Defense Fund, supra, 487 F.2d at 815, n. 7. We stand on §706(2)(D) because NEPA is essentially a pro- ecedural statute. Its purpose is to assure that, by following the procedures that it preseribes, agencies will be fully aware of the impact of ther decisions when they make them. The procedures required by NEPA, 42 U.S.C. §4332(2)(C), are designed to secure the accomplishment of the vital purpose of NEPA. That result can be achieved only if the prescribed procedures are faith- fully followed; grudging, pro forma compliance will not do. We think that the courts will better perform their necessarily limited role in enforcing NEPA if they apply §706(2)(D) in reviewing environmental impact statements for compliance with NEPA than if they confine themselves within the straight jacket of §706(2)(A). See Wyoming Outdoor Coordinating Council v. Butz, 10 Cir., 1973, 484 F.2d 1244. As Mr. Justice Frankfurter said in a criminal case, in words that are equally applicable to the actions of administrative agen- cies: “The history of liberty has largely been the history of observance of procedural safeguards.” McNab v. United States, 1943, 318 U.S. 332, 347. So it may also be with the history of environment. See also Calvert Cliffs’ Coordinating Comm., Inc. v. United States Atomic Energy Comm’n, D.C.Cir., 1971, 449 F.2d 1109, 1114-15; Silva v. Lynn, 1 Cir., 1973, 482 F.2d 1282. This does not mean that the courts are to “fly speck” envi- ronmental impact statements. The preparation of such a state- ment necessarily calls for judgment, and that judgment is the agency’s. But the courts can, and should, require full, fair, bona fide compliance with NEPA. That is what the district judge did in this case. It was not an abuse of discretion for the district court to strike Citizens’ request that the Secretary of Transportation be ordered to prepare the EIS. The issue was raised for the first time in a brief which was not served on the defendants until the day of the hearing, and was inconsistent with Citizens’ earlier motion to compel WSDH to prepare an adequate impact statement. ~ 24 Roosevelt Lathan and Pearline Lathan, ei al. vs. The district court did not err in permitting the inadequate EIS to be re-circulated as a draft. Circulation of a grossly inade- quate statement as the draft of a new one could conceivably frustrate the goal of obtaining informed agency and public com- ment on the environmental consequences of a proposed project, and in some circumstances this could amount to a violation of the responsible agency’s duty to “develop methods and proce- dures . . . which will insure that presently unquantified environ- mental amenities and values may be given appropriate consider- ation in decisionmaking along with economic and technical con- siderations.” 42 U.S.C. §4332(2)(B). However, Citizens has not demonstrated that this is such & case. We think that the motion of: plaintiffs-appellants and inter- venors for attorney’s fees should be considered in the first instance by the district court. That part of the judgment which refuses to order a hearing under section 128(a) is vacated. In all other respects, the judg- ment is affirmed. The case is remanded for further proceedings consistent with this opinion. bs Judges KOELSCH, ELY and HUFSTEDLER do not concur in the portion of the opinion that holds that the district court may, on remand, consider whether there has already been sub- stantial compliance with section 128(2). They would hold that there has not been such compliance. WALLACE, Circuit Judge, Coneurring. I concur generally with the majority. I disagree that the case shoud be remanded for the district court to consider whether new hearings need now be held pursuant to 23 U.S.C. § 128(a). The question whether the hearings required by section 128(a) have been held is immaterial until the state highway department sub- mits plans for a federal-aid highway project. At that time. see- tion 128(a) requires that the state highway department “shall certify to the Secretary that it has had [the requisite] publie hearings . . . .” If the state highway department decides not to Claude S. Brinegar, etc., et al. 25 submit plans, the question never arises. Once it does submit plans, compliance with section 128(a) is necessary and appropriate judi- cial proceedings may be instituted to challenge the certification that required hearings have been held. In the instant case, there has been no submission of plans and thus no certification. An action raising the question whether the hearings complied with section 128(a) is, therefore, premature. It is the responsibility in the first instance of the state highway department to hold such hearings as it deems necessary and to make the required certification to the secretary when it submits plans. In addition, I cannot coneur with the statements, which I deem to be dicta, pertaining to what constitutes further major federal action on this project. The majority concludes, without the ben- efit of briefs or argument, that certain actions are further major federal actions. I believe wisdom dictates that we wait before we make such a determination until a record raising this question is properly before us. It is at least equally arguable that once the final engineering design stage has been approved, all major fed- eral action has been completed. At that point, the eventual im- pact on the environmental has been established. Each house that is moved, each mound of dirt that is excavated, each ribbon of concrete that is laid has an impact on the environment, but that impact is determined by the plan already adopted. Of course, the federal government will participate substantially in the project subsequent to the approval of the design plan, but participation alone is not enough. The real question is whether the govern- ment’s continued participation constitutes “further major Fed- eral actions having a significant effect on the environment.” 36 Fed. Reg. 7727 (1971) (emphasis added). It can be persuasively argued that after final design approval, nothing further occurs which (1) is major and (2) has a significant effect on the envi- ronment, because no action outside the contemplation of the approved design is undertaken. Such an analysis is completely consistent with our previous holding in San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1024-26 (9th Cir. 1973). se ARN LOTTE N RT o “AS tamer 26 Roosevelt Lathan and Pearline Lathan, et al. vs. TRASK, Circuit Judge, with whom Circuit Judges WRIGHT, CHOY and GOODWIN join, Specially Concurring: Part 2 of the opinion discusses “Public Hearings” that have been held, including a design hearing by the Washington State Department of Highways on June 2-6, 1970. In part 2¢ the opinion acknowledges the contentions of the State Defendants- Appellants that this hearing did comply with section 128(a) as amended, and that such hearing together with other mectings held by the Washington State Department of Highways with interested persons and groups constitutes substantial compliance with section 128(a) so that no further hearing should be required. While the opinion leaves the question of the need for a fur- ther hearing to the District Court to consider on remand, it “sug- gests” that the District Court may feel “that the case can and should be disposed of more expeditiously by requiring a new hearing or opportunity for a hearing” of the type the opinion has discussed. Lest the District Court might consider this language to consti- tute an admonition which would interfere with its freedom of decision, it should be pointed out that the record of the June 2-6, 1970, hearings has never been before us. None of us has exam- ined it. No basis exists therefore upon which we can circumscribe the trial court’s freedom of judgment in assessing the sufficiency of that record. The suggested admonition is predicated upon the fact that an appeal might be taken unless a new hearing is held. An appeal might also be taken if a new hearing is held. The evaluation of the sufficiency of the record to comply with the statutory requirements and regulations is for the trial court in the first instance. It should be exercised as in any other case without advice from this court as to the manner in which the decision should be made upon evidence we know nothing about. CHAMBERS, Circuit Judge, concurring: As a result of today’s decision, the Secretary may no longer approve federal funding for any proposed federal aid highway project bypassing or going through a town or city unless the state has held a public hearing in compliance with 23 U.S.C. § 128(a), as amended. I concur in this result. Claude S. Brinegar, etc., et al. 27 Section 128(a) itself requires the state to do nothing more than provide a structured forum for the public discussion of the possible social, environmental and economic impacts of a proposed highway location or design. On the other hand, the Secretary’s regulations promulgated under § 128(a), in which we are now obliged to acquiesce, require the state to use that forum as a means of fully aequainting the public with such possible conse- quences. Today’s decision prescribes two sets of criteria for determin- ing whether the state has met this requirement. First, the state must have furnished all information relevant to the considera- tions listed in 23 C.F.R. § 790.3(¢)(1) through (c) (7). Because that list was not intended to be exclusive, we have decided that the state must also furnish any relevant information relating to those considerations normally contained in an Environmental Impact Statement, if those considerations are necessary to give the public a full acquaintance with the social, environmental and economic impacts of the proposal. Anyone challenging the sufficiency of the information provided by the state has the burden of establishing that the information omitted was relevant to one of the prescribed considerations end that the information could reasonably have been expected to have had an impact on the decision making process, With this in mind, the district court is left to the task of determining whether the state complied with § 128(a), as amended. PERNAU-WALSH PRINTING CO., SAN FRANCISCO 10-7-74—480 APPENDIX “D.” Memorandum and Order Granting in Part and Denying in Part Plaintiffs’ Motion for a Preliminary In- _ junction, Ralph W. Keith et al., Plaintiffs, v. John A. Volpe, as Secretary of Transportation, et al., Defendants. Civ. No. 72-355-HP. United States District Court, C.D. California. July 7, 1972. Motion to Amend Denied Sept. 11, 1972. ; PREGERSON, District Judge. This suit was brought to halt work on the proposed Century Freeway until such time as the responsible federal and state officials comply with certain constitu- tional statutory, and administrative requirements, which, | plaintiffs contend, they have heretofore failed to satisfy. The matter came on for hearing on May 2, 3, 4, and 5, 1972, on plaintiffs’ motion, filed pursuant to Rule 65 of the Federal Rules of Civil Procedure, for a preliminary injunction. Having studied the briefs, affidavits, and exhibits submitted by counsel prior to the aforesaid hear- ing, having heard the testimony offered and the argu- ments of counsel made at the aforesaid hearing, having studied the briefs and affidavits submitted by coun- sel after the conclusion of the hearing, and having studied the authorities cited by counsel, the Court has concluded that defendants have adequately complied with some of the aforementioned legal requirements, but have failed to comply with others. Therefore the Court will issue a preliminary injunction. Plaintiffs herein are four couples who live in the path of the proposed freeway, the National Association for the Advancement of Colored People, the Sierra y | Club, the Envitonmental Defense Fund, an unincor- | porated association named “Freeway Fighters,” and | the City of Hawthorne. Defendants, herein are various | state and federal officials and agencies. One group of | defendants, sometimes referred to as “federal defend- ants,” consists of John A.’ Volpe, the Secretary of: the United States Department of Transportation; Sheridan A. Farin, the Administrator of Region 7 of the Federal ' Highway Administration, an agency within the Depart- ment of Transportation; and Donald E. Trull, the Di- vision Engineer for the Federal Highway Administra- tion in California. A second group of defendants, sometimes referred to as “state -defendants,” consists of the California Highway Commission; the California Department of Public Works; James A. Moe, the Di- rector of the Department of Public, Works; and Robert Datel, the State Highway Engineer of the California ' Division of Highways, an agency within the Depart- ment of Public Works. Plaintiffs contend that defeid- ants have failed to comply with a federal environmental protection statute;' a California environmental protec- | tion statute:? federal statutes protecting homeowners, tenants, and businessmen who must relocate because of the construction of highways funded with federal aid;? and a‘federal statute requiring that public hear- - ings be held prior to the construction of any federal- 1The National Environmental Policy Act of 1969, 42 US.C. §§ 4321-4347. + The California Environmental Quality Act of 1970, Calif. Pub.Res.Code §§ 21000-21151. Chapter V of the Federal-Aid Highway Act of 1968, 23 U.S.C. §§ 501-511, and the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601-4655. Plaintiffs also rely on the’ Urban Mass Transporta- tion Act of 1964, 49 U.S.C. §§ 1601-1612, but concede that it does not technically apply to the Century Freeway. a ie ee ay oe ! ERLE LTR NAN MSS PEI CT OBR AN tert eure gne ae ’ bi Dit SRE REIS Rr mae Whee NEL NTY £ NENTS PTANV EE et ORNL SDE RL PRY WY J ae aid highway.’ Plaintiffs also charge that federal de- fendants are violating the due process clause of the Fifth Amendment to the United States Constitution and that state defendants are violating the due process and equal protection clauses of the Fourteenth Amend- ment. A sketch of the proposed freeway is in order. If and when the Century Freeway is completed, it will, as presently planned, stretch a distance of 17 miles across the southern portion of the densely populated Los Angeles basin. It will connect the Los Angeles In- ternational Airport cn the west with the San Gabriel River Freeway (Route 1-605) on the east; it will also intersect with the San Diego, Harbor, and Long Beach Freeways (Routes 1-405, 11, and 7, respectively). The freeway will traverse the cities of El Segundo, Haw- thorne, Inglewood, Lynwood, South Gate, Paramount, Downey, and Norwalk, the Watts section of the City of Los Angeles, and unincorporated areas of Los Angeles County, including the communities of Willowbrook and Del Aire. Federal officials have designated the free- way as a part of the interstate highway system—spe- cifically, Route I-105. Therefore 90% of the cost of the freeway will be borne by the federal government, although the California Division of Highways will ac- tually acquire the right-of-way and construct the road. The total cost of acquiring the land and actually con- structing the freeway has been estimated at $501,800,- 000. It has also been estimated that 9000 families, consisting of 21,000 individuals, will be displaced by the freeway and that 3900 single-family dwellings and ‘Section 128(a) of the Federal-Aid Highway Act of 1968, 23 U.S.C. § 128(a). * vb we ’ u OP PRI AL FAT) Met sha py —4— 3000 multiple-family dwellings will be acquired in or- der to clear the right-of-way. The planning and uesign of a federal-aid highway is a lengthy process. The applicable statutes and regu- lations require a series of public hearings and, in addi- tion, the submission by state officials of detailed pro- posals and assurances to officials of the Department of Transportation [hereinafter DOT] and the Federal Highway Administration [hereinafter FHWA] for ap- proval. See, e.g., the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq.; the FHWA’s Policy and Procedure Memorandum 20-8 (Jan. 14, 1969) [hereinafter PPM 28-8], 23 C.F.R. Part. 1, Appendix A; Lathan v. Volpe, 455 F.2d 1111, 1115-1116 (9th Cir. 1971). A public hearing on one aspect of the Century Freeway was held as long ago as June 1963, and the Division of Highways is now in the midst of acquiring the right- of-way for the freeway. According to the testimony of an official of the Division of Highways, as of approxi- mately April 24, 1972, the Division had acquired 3388 parcels of land for the freeway, which represented 55.8% of the 6073 parcels that it intended to even- tually acquire. It had acquired these parcels for a total of $88,651,000. In addition, the Division had reached agreements with the owners of 169 other parcels that were still in escrow. In one segment of the freeway cor- ridor, however, the Division had already acquired 85.1% of the parcels, while in another segment it had only acquired 39.7%. A second official testified that as of approximately May 3, 1973, 2840 resi- dences in the freeway corridor had been vacated. Ac- cording to the testimony of a third official, the Division of Highways at present intends to begin actual con- alti struction of the freeway during the third quarter of 1972 and to complete construction by the middle of 1977. With that picture of the proposed freeway and of the work that has already heen performed in mind, the Court will turn to the specific legal issues raised by this lawsuit. The National Environmental Policy Act of 1969: Nearly three years ago, in response to growing pub- lic concern with the deterioration of the nation’s environment, Congress enacted the National Environ- mental Policy Act of 1969 [hereinafter NEPA], 42 U.S.C. §§ 4321-4347. The statute went into effect on January 1, 1970. Section 101 of NEPA, 42 U.S.C. § 4331, contains a declaration by Congress of a com- prehensive national environmental policy. Section 102 (2)(C), 42 U.S.C. § 4332(2)(C), establishes a mech- anism for carrying out that policy. It “authorizes and directs that, to the fullest extent possible,” every agency of the federal government shall “include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the hu- man environment, a detailed statement by the responsible official on— “(i) the environmental impact of the proposed action, - i “(ii) any adverse environmental effects which cannot be avoided should the proposal be imple- mented, “(iii) alternatives to the proposed action, “(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and callie “(v) any irreversible and irretrievable commit- ments of resources which would be involved in the proposed action should it be implemented.” In the words of Judge Skelly Wright, “NEPA, first of all, makes environmental protection a part of the man- date of every federal agency and department.” Calvert Cliffs’ Coordinating Committee, Inc. v. Atomic Energy Comm’n, 146 U.S. App.DC. 33, 449 F.2d 1109, 1112 (1971). NEPA also established a Council on Environmental Quality [hereinafter Council], and in guidelines promulgated pursuant to NEPA that body stated, “The objective of section 102(2)(C) * * * is to build into the agency decision making process an appropriate and careful consideration of the en- vironmental aspects of proposed action * * *.” Statements on Proposed Federal Actions Affect- ing the Environment, 36 Fed.Reg. 7723, 7724, q 1 (April 23, 1971). [1, 2] To quote again from the Calvert Cliffs’ de- cision, moreover, “* * * [T]he Section 102 duties are not in- herently flexible. They must be complied with to the fullest extent, unless there is a clear conflict of statutory authority.” 449 F.2d at 1115. [Em- phasis in original. ] See also Daly v. Volpe, 350 F.Supp. 252 (W.D. Wash. 1972). The federal defendants have not filed the en- vironmental impact statement required by Section 102 (2)(C), and plaintiffs insist that they must do so. Federal defendants concede that the construction of freeways with federal funds does constitute “major Fed- eral actions, significantly affecting the quality of the — o human environment,” within the meaning of NEPA. They contend, however, that NEPA does not apply to Projects that were in as advanced a state of completion as was the Century Freeway at the time that NEPA went into effect—i.e., on January 1, 1970. No provision of NEPA explicitly discusses the stat- ute’s applicability to projects that were already in existence on January 1, 1970, and “a volatile dispute in the law has emerged on the extent of which NEPA, and particularly Section 102(2)(C), applies to an on- going project.” Environmental Law Fund v. Volpe, 340 F.Supp. 1328, 1331 (N.D.Cal.1972).* The Council’s guidelines promulgated pursuant to NEPA, however, address themselves to this question. They provide, “To the maximum extent practicable the Section 102(2)(C) procedure should be applied to fur- ther major federal actions having a significant ef- fect on the environment even though they arise ‘Courts have refused to hold Section 102(2)(C) applicable to projects that were in existence on January 1, 1970, in Penn- Environmental Council, Inc. v. Bartlett, 454 F.2d 613 3d Cir. 1971); San Francisco Tomorrow v. Romney, 342 F. Supp. 77 (N.D.Cal. 1972); Environmental Law Fund v. Volpe, supra; Apache . WCF, 3 ERC 1919 (D.Ariz., March 14, 1972): Citizens to Pre- serve Foster Park, Inc. v. Volpe, No. Civ. 71 F 71, 3 ERC 1031 (N.D.Ind., Aug. 18, 1971); Elliot v. Volpe, 328 F.Supp. 831 (D.Mass.1971); Brooks v. Volpe, 319 F.Supp. 90 (W.D.Wash. 1970), motion for rehearing denied 329 F. . 118 (W.D.Wash. 1971), rev'd on other grounds 460 F.2d 1193 (9th Cir., 1972); Investment Syndicates, Inc. v. Richmond, 318 F.Supp. 1038 (D.Or.1970). cages Demy ee ad oe applicable to such ery in i ition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972): Calvert Cliffs’ Coordinat- ing Committee, Inc. v. Atomic Energy Comm’n, supra; Named In- dividual Members of San Antonio Conservation Society, Inc. v. Texas Highway Dept., 446 F.2d 1013 (5th Cir. 1971); Morni side-Lenox Park Ass'n, Inc. v. Volpe, 334 F.Supp. 132 (ND. Ga.1971); Nolop v. Volpe, 333 F.Supp. 1364 (D.S.D.1971); Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F. Supp. 728 (E.D.Ark.1971). sdliiacs from projects or programs initiated prior to enact- ment of the Act on January 1, 1970. Where it is not practicable to reassess the basic course of action, it is still important that further incremental major actions be shaped so as to minimize adverse environmental consequences. It is also important in further action that account be taken of en- vironmental consequences not fully evaluated at the outset of the project or program.” Statements on Proposed Federal Actions Affecting the Envi- ronment, supra, 36 Fed.Reg. at 7727, 4 11. [Em- phasis added. ] Federal defendants argue, in light of the Council’s guidelines, the application of NEPA to the Century Freeway would not be practicable. In November 1970 the FHWA promulgated interim regulations spelling out the circumstances under which that agency considered the application of NEPA to a freeway, the planning of which had commenced prior to January 1, 1970, to be appropriate. Interim Guide- lines for Implementation of Section 102(2)(C) of the National Environmental Policy Act of 1969, 4 4 (Nov. 24, 1970) [hereinafter Interim Guidelines]. The key element in the FHWA’s formula was the date or dates on which the highway in question received “de- sign approval” from the FHWA—.e., the date or dates on which the FHWA approved the engineering design proposed by the state highway authorities, following public hearings, in accordance with PPM 20-8, 4 10. If the highway in question received design approval after February 1, 1971, compliance with NEPA would be necessary. If design approval was received before February 1, 1971—a date thirteen months after ar a ow NEPA went into effect—compliance with NEPA was not ordinarily necessary. The Interim Guidelines did require the state highway authorities te reassess high- way projects that had received design approval before February 1, 1971, if those projects entailed the ac- quisition of substantial amounts of real estate. Interim Guidelines, ¢ 4c. This reassessment was to be per- formed “in consultation with” the FHWA division en- gineer, and its purpose was to determine whether the project had been “developed in such a manner as to minimize adverse environmental consequences.” No Section 102(2)(C) statement was necessary, however, “unless requested by the division engineer.” Id. The state defendants divided the Century Freeway into eight segments for the purpose of preparing de- sign proposals for submission to the FHWA. Design approval was obtained for three of those segments prior to January 1, 1970. Design approval for the remaining five segments was received between January 1, 1970, and February 1, 1971.° The Interim Guidelines, there- fore, required only that the state highway authorities reassess the Century Freeway project. A reassessment, dated March 15, 1971, was prepared by the state de- fendants; it concluded that the Century Freeway proj- ect had been “developed in such a manner as to give detailed consideration to the potential impact upon the quality of the human environment * * *.” The FHWA division engineer concurred in that evaluation ‘Design approval for the eight segments was obtained on the following dates: August 14, 1968; September 10 and December, 23, 1969; February 12, April 14, July 2, December 1, and December 15, 1970. In addition, the design that received ap- proval on September 10, 1969, was subsequently revised; the revisions received design approval on December 23, 1970. = se on April 1, 1971.’ The division engineer never re- quested a Section 102(2)(C) statement. Federal defendants urge the Court to approve the decision not to require the preparation of a Section 102(2)(C) statement. This the Court cannot do, be- cause the defendants have failed to satisfy NEPA’s commandments. [3] The message of NEPA is loud and clear. Section 101(a) declares that “it is the continuing policy of the Federal Gov- ernment * * * to use all practicable means and measures * * * to create and maintain conditions under which man and nature can exist in produc- tive harmony * * *” Section 101(b) provides that in order to carry out this policy, “it is the continuing responsibility of the Federal Government to use all practical means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may * * * assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings * * *.” Section 102 of NEPA “authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in [Section 101], and (2) all agencies of the a TSee Exhibit SS to Conrado affidavit, filed with the Court on April 7, 1972. — eee sae POPES LEER DREN OTE EN RIE.” | nies. Federal Government shall, [inter alia, prepare the environmental impact statements described in subsection (2)(C)].” In light of the Congressional directive that “to the fullest extent possible * * * the policies, regulations, and pub- lic laws of the United States shall be interpreted and administered in accordance with the policies set forth” in Section 101 of NEPA, the Court believes that the ap plication of NEPA to a federal-aid highway should not be considered impracticable until, as the Court of Appeals for the Fourth Circuit recently held, the high- - way “has reached the state of completion where the . costs of abandoning or altering the proposed route would clearly outweigh the benefits therefrom.” Arling- ton Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972). The Century Freeway has not yet reached that state. [4-7] The purpose of Section 102(2)(c) clearly is, in the words of paragraph 1 of the Council’s guidelines, “to build into the agency decision making process an appropriate and careful consideration of the environmental aspects of proposed action * * *.” See also DOT Order 5610.1, § 7(d) (Oct. 7, 1970); Cal- vert Cliffs’ Coordinating Committee, Inc. v. Atomic Energy Comm’n, supra, 449 F.2d at 1113. The plan- ning stage of a federally-funded highway ends when the highway receives design approval from the FHWA. See PPM 20-8, § 10; cf. Wildlife Preserves, Inc. v. Volpe, 443 F.2d 1273 (3d Cir. 1971). Although the planning stage of the Century Freeway had commenced before January 1, 1970, it had not been completed by that date—i.e., no design approval had yet been re- ceived for five of the eight segments of the highway. 4 ceils The “agency decision making process,” in other words, was still open when NEPA went into effect. The freeway, as a result, was still at that stage of its development in which a “careful consideration of the environmental as- pects” would have been most “appropriate,” and fail- ure to comply with Section 102(2)(C) defeated the basic purpose of NEPA. Since five of the freeway’s eight segments were still in their planning stage, more- over, the general judicial policy against the retroactive application of statutes—see, e.g., Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964); Union Pacific R. Co. v. Laramine Stock Yards Co., 231 U.S. 190, 34 S.Ct. 101, 58 L.Ed. 179 (1913)—was inapplicable. Judge Peckham recently observed, “Obviously, if the planning phase has not been completed, it is still practicable to file a statement.” Environment Law Fund v. Volpe, supra, 340 F.Supp. at 1334. [Emphasis added.] Paragraph 4 of the FHWA’s Interim Guide- lines in actuality postponed the effective date of NEPA for thirteen months, except for cases in which the FHWA division engineer decided, apparently on the basis of a balancing of various environmental and non- environmental considerations, that preraration of a Sec- tion 102(2)(C) statement was anpropriate.* NEPA 8In Environmental Law Fund v. Volpe, supra, Judge Peck- ham wrote, “Thus, even if a project were initiated prior to January 1, 1970, if the planning phase of the project did not take place until after January 1, 1970, a NEPA statement is required. No balancing of factors can be permitted in such a case; the state highway department must file a statement in com- pliance with Section 102(2)(C). However, if all the plan- ning for a project took place prior to January 1, 1970— that is, if design approval preceded the passage of NEPA— a Section 102(2)(C) statement is required only if practi- cable.’” 340 F.Supp. at 1333. [Emphases in original; foot- notes omitted. ] PREIS BF PIRI ct et 3 _ — : LE a en PERLE LSI TEIN ES IIIT TS INE HE be Te Lif) PPP AIOLTY Bae PANE GeO GERSON RR EEE ; —_ does not authorize such flexibility, and the provision emasculates both NEPA and the Council’s guidelines.° Judge Craven, the author of the opinion in Arlington Coalition on Transportation v. Volpe, supra, went further, holding Section 102(2)(C) applicable to a highway, the planning of which had been completed before January 1, 1970. After concluding that NEPA was “applicable to a project until it has reached the state of completion where the costs of abandoning or altering the proposed route would clearly outweigh the benefits therefrom,” he added. “Manifestly the date of design approval alone does not ac- curately measure whether Arlington I-66 has reached the crucial stage, and determining the applicability of Section 102(C) by this standard alone would be arbitrary and capri- cious agency action and an abuse of administrative discre- tion. Administrative Procedure Act, 5 U.S.C.A. § 706(2) (A).” 458 F.2d at 1332 [Emphasis added. ] *In August 1971 the FHWA promulgated permanent regula- tions to replace the Interim Guidelines. Policy and Procedure Memorandum 90-1 (Aug. 24, 1971) hereinafter PPM 90-1]; see especially 4 5. The key element in the new formula is still the date or dates on which the highway in question received design approval from the FHWA. If the highway received de- sign approval before January 1, 1970, compliance with NEPA is unnecessary; if it received design approval after February 1, 1971, compliance is necessary. If design approval was received during the thirteen month interval between January 1, 1970, and February 1, 1971, compliance with NEPA is required “‘if, in the judgment of the FHWA division engineer, implementation of [NEPA] to the fullest extent possible requires preparation and processing of an environmental statement.” PPM 90-1- q Sb. [Emphasis added. ] The precise thrust of 4 5 of PPM 90-1, insofar as it pertains to highways that received design approval between January 1, 1970, and February 1, 1971, is not clear. The phrase, “to the fullest extent possible,” seems to esta’xish a very strict standard for determining whether a Section 102(2)(C) statement is neces- sary. Other language in the paragraph, however, seems to under- mine this tough st#ndard. Before the FHWA division engineer can make the required determination, the state highway authori- ties must prepare, “in consultation with” the FHWA, a written reassessment of the highway in question. All that PPM 90-1 says about this reassessment is that it “should consider if the highway plans were developed in such a manner as to minimize adverse environmental consequences.” PPM 90-1, § Sc. Once the FHWA division engineer has received this reassessment, he makes the determination called for by € 5b. In doing so, he must take into account a variety of environmental and nonenvironmental considerations. He (This footnote is continued on next page) ae ae In planning the Century Freeway, moreover, defend- ants made virtually no attempt to evaluate the effect of the highway on air pollution in the Los Angeles basin.” Paragraph 11 of the Council’s guidelines provides that even when the application of NEPA to an ongoing project is not practicable, “[i]t is * * * important in further action that account be taken of environmental consequences not fully evaluated at the Outset of the project or program.” [Emphasis added. ] “Air pollution,” the Supreme Court recently observed, “is, of course, one of the most notorious types of public nuisance in modern experience.” Washington v. General Motors Corp., 406 U.S. 109, 92 S.Ct. 1396, 1398, 31 L.Ed.2d 727 (1972). Air pollution in the Los Angeles basin is particularly obnoxious, and the major “should consider, in addition to the written reassessment prepared by the [state authorities], the status of the design; right-of-way acquisition including demolition of improve- ments within the right-of-way; number of families alread rehoused and those yet to be rehoused; construction sched- uling; benefits to accrue from the proposed highway im- provement; significant impacts; and measures to minimize any adverse impacts of the highway.” PPM 90-1, {| 5b. _ Paragraph 5 of PPM 90-1 is, in short, ambiguous. If the test that it establishes for canes the applicability of Sec- tion 102(2)(C) is the phrase, “to the fullest extent possible,” | then the regulation is commensurate with the Court’s interpreta- tion of NEPA’s demands. On the other hand, if the test is as flexible as the subsequent sentences in the —— suggest, the | regulation would ye pred to suffer from the same shortcomings as did paragraph 4 of the FHWA’s Interim Guidelines. | 10See, e.g., Interstate (Century) 105 F:.eway: Design Team Concepts at 33, the summary of a study conducted for the Califor- nia Division of Highways by Gruen Associates; it is dated De- cember 1970. See also the testimony at the hearing on the mo- tion for a preliminary injunction of Richard McMullin, a regis- tered civil engineer with the Division of Highways and the head of the Division’s Environmental Investigation Unit for District 7 (Tr. at 261-280). beeihiieeche bent dot Se Ss RR LONE eS LN SA ANT hey ad Na aC meet ee nee r n ER SAE LENORE NT TELE ALE IT ROMY Sie ound cause of it is automobile emission.’ Therefore the failure to closely examine the effect of the’ proposed freeway on air pollution was an egregious omission. It flew in the face of the Council’s guidelines; the omis- sion also undermines the state defendants’ conclusion, reached during the course of the reassessment that they made pursuant to the FHWA’s Interim Guidelines, that the Century Freeway was planned “in such a manner as to give detailed consideration to the potential impact upon the quality of the human environment * * *,” Defendants contend that when NEPA went into ef- fect very little data was available comparing the effect of freeways and city streets on air pollution. Further- more, defendants argue, the sparse evidence that was available at the time suggested that freeways reduced air pollution because automobile emission decreases at higher speeds.” Plaintiffs disagree; they contend that significant information on air pollution was available to defendants even before 1970." The Court does not “Mr. McMullin testified that in his opinion automobile emis- sion was responsible for ag orn 50% of the air pollu- tion throughout the country, but was the source of between 60% and 70% of the air pollution in the Los Angeles basin. He also testified that it was the contention of the Los Angeles County Air Pollution Control District that automobile emission caused 90% of the air pollution in Southern California (Tr. at 279). Mr. McMullin so testified (Tr. at 263-266). Air Quality Cri- teria for Carbon Monoxide, a study published by the United States Department of Health, Education and Welfare during March 1970, indicates that the emission of carbon tnonoxide does decrease at higher speeds. Plaintiffs apparently contend that the emission of certain other pollutants increases at higher speeds (Tr. at 277-278). '8Plaintiffs cite the following two articles: Bush, Urban At- mospheric Pollution, Civil Engineering—ASCF, May 1965, at 66; Schneiderman, Cohn, and Paulson, Air Pollution and Urban Freeways: Making a Record on Hazards to Health and Proper- ty, 20 Cath.U.L.Rev. 5 (1970). —16— believe it necessary, at least on the motion for a pre- liminary injunction, to decide which analysis of the availability of data is the more accurate one. As long , as some information on air pollution was available, NEPA and the Council’s guidelines obligated the fed- eral defendants to prepare a Section 102(2)(C) state- ment examining, with as much precision as was pos- sible at the time, the impact of the proposed freeway on air quality in the Los Angeles basin. Having failed to do so in 1970, the federal defendants must do so now. In preparing their Section 102(2)(C) statement de- fendants should take full advantage of the advances made in air quality measurement since 1970. The avail- able information about air pollution and the techniques that had been perfected for measuring it may or may not have been inadequate in 1970, but considerable progress has been made since then, and defendants themselves deserve credit for some of it.’* The Environ- mental Protection Agency [hereinafter EPA], acting | pursuant to the Clean Air Act, 42 U.S.C. §§ 1857- 1857/1, has been promulgated primary and secondary ambient air quality standards for the following pollu- tants; sulfur oxides; particulate matter; carbon monox- ide; photochemical oxidants; hydrocarbons; and _nitro- gen dioxide. 40 C.F.R. Part 50; 36 Fed.Reg. 22384 (Nov. 25, 1971). The primary standards define levels of air quality that the EPA deems “necessary, with an adequate margin of safety, to protect the public’ health,” while the secondary standards define levels of air qual- ity that the EPA deems “necessary to protect the public welfare from any known or anticipated adverse effects of a pollutant.” 40 C.F.R. § 50.2(b). Appendices M4See the testimony of Mr. McMullin (Tr. at 265-267). - DOS ARR EAR GENES a RATS we > re aes) ewe ian. attached to these standards, moreover, describe in de- tail methods for sampling and analyzing each of the specified pollutants. The Court assumes that the EPA’s standards will be useful to defendants in evaluating the significance of any changes in air quality that the free- way will cause and that the techniques described in the appendices will be useful in actually measuring these changes. In evaluating the impact of the freeway on air quality in the Los Angeles basin defendants should take all relevant details into account. They should con- sider the effect of wind and weather conditions on the dispersal of pollutants, and they must not ignore the effect of other sources of pollution. In addition, they should consider the extent to which the freeway will draw more automobiles into the southern Los Angeles basin. This case is not one in which a proposed freeway will cross a rural area, leading inevitably to rapid de- velopment and sharp increases in automobile traffic, because the Los Angeles basin is already heavily de- veloped. Nevertheless, the construction of the Century Freeway could conceivably draw new industrial and commercial facilities into the freeway’s vicinity and lead, as a result, to a significant increase in automobile traffic. This possibility should not be ignored. Further- more, although air pollution is the most obvious prob- lem to be considered, it does not represent the only significant environmental impact of a freeway. De- fendants should for example engage in a more thorough examination than has heretofore been con- ducted of the relationship between the freeway and noise pollution.’® See, e.g., Interstate (Century) 105 Freeway: Design Team Concepts, supra, at 32-33. RINNE PRC FLIP Rae me nese ae ; SNES MYL IT IL EIN OMAN SEARLS a IE: a ~ 2 ter = [8] Section 102(2)(C) lists five general topics that an impact statement must consider. The third require- ment—that the statement consider “alternatives to the proposed action”"—is a crucial one. Without it a NEPA statement becomes an academic exercise. De- fendants’ statement should consider all possible alterna- tives to the proposed freeway, including changes in design, changes in the route, different systems of trans- portation and even abandonment of the project en- tirely. See, e.g., Daly v. Volpe, supra. In order to be realistic, on the other hand, the statement cannot ignore the substantial amount of work and money that has already gone into the Century Freeway. As J udge Eisele wrote in Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F.Supp. 728 (E.D. Ark. 1971). “The Court is not suggesting that the status of the work should not be considered in determining whether to proceed with the project. It is suggest- ing that the degree of the completion of the work should not inhibit the objective and thorough evaluation of the environmental impact of the project as required by NEPA * * *, [A]s the Court interprets NEPA, the Congress of the United States is intent upon requiring the agencies of the United States government, such as the defendants here, to objectively evaluate all of their projects, regardless of how much money has already been spent thereon and regardless of the degree of com- pletion of the work.” 325 F.Supp. at 746. See also Morningside-Lenox Park Ass’n, Inc. v. Volpe, 334 F.Supp. 132, 142 (N.D.Ga. 1971). This last point must be stressed. What Sections 101 and 102 make clear is that NEPA requires more than — = just the preparation of a statement. The Federal de- fendants must actually evaluate the wisdom of pro- ceedings with the Century Freeway project in light of whatever environmental impact their studies zeveal. NEPA, as was stated in Calvert Cliffs, “makes environ- mental protection a part of the mandate of every fed- eral agency and department.” The requirement of Sec- tion 102(2)(C) that a statement be prepared merely ensures that this evaluation is conducted. Further work on the freeway, in short, will be en- joined until the federal defendants conduct this evalua- tion and prepare a Section 102( 2)(C) statement. The California Environmental Quality Act of 1970: On September 18, 1970, nine months after NEPA went into effec. the Governor of California signed into law the Environmental Quality Act of 1970 [here- inafter CEQA], Calif.Pub.Res.Code §§ 21000-21151. Sections 21000 and 21001 contain declarations of policy closely reminiscent of Sections 101 and 102 of NEPA. Section 21100 of CEQA follows Section 102 (2)(C) of NEPA almost verbatim. It provides, “All state agencies, boards, and commissions shall include in any report on any project they propose to carry out which could have 2 significant effect on the environment of the state, a detailed State- ment by the responsible state official setting forth the following: “(a) The environmental impact of the proposed action. “(b) Any adverse environmental effects which cannot be avoided if the proposal is implemented. “(c) Mitigation measures proposed to minimize the impact. —20-— “(d) Alternatives to the proposed action. “(e) The relationship between local short-term uses of man’s cnvironment and the maintenance and enhancement of long-term productivity. “(f) Any irreversible environmental changes which would bc involved in the proposed action should it be implemented.” The state defendants have not prepared the statement required by Section 21100; they insist that they need not do so because CEQA is not applicable to projects that were in as advanced a state of completion as was the Century Freeway at the time that CEQA became law. Plaintiffs, on the other hand, maintain that the State defendants must file the statement. [9] The resemblance between NEPA and CEQA is so uncanny that the conclusion is inescapable that CEQA was deliberately modelled after NEPA. There- fore the same considerations ought to govern the ap- plicability of both statutes to the Century Freeway. Sec- tion 21001 of CEQA provides, in part, “* * * [I]t is the policy of the state tc: “(a) * * * [T]ake all action necessary to pro- tect, rehabilitate, and enhance the environmental quality of the state. “(b) Take all action necessary to provide the people of this state with clean air and water * * * and freedom from excessive noise. * * * “(g) Require governmental agencies at all levels to consider qualitative factors as well as economic and technical factors and long-term benefits and costs, in addition to short-term benefits and costs and to consider alternatives to proposed actions af- fecting the environment.” {Emphases added. | ee meee ~~ Section 21001 demonstrates a commitment by Califor- nia to the careful evaluation of the likely environmental impact of proposed public works projects before those projects are actually constructed."* In light of this lan- guage the Court believes that compliance with CEQA does not become unnecessary until a proposed highway “has reached the state of completion where the costs of abandoning or altering the proposed route would clear- ly outweigh the benefits therefrom.” Arlington Coali- tion on Transportation v. Volpe, supra. The Century Freeway, as was pointed out in the Court’s discussion of NEPA, has not reached that stage. [10] At the time that CEQA entered into effect— i.e., on September 18, 1970—the state defendants had not yet received design approval from the FHWA for two of the eight segments of the Century Freeway. State defendants, in fact, were apparently still engaged in the planning of those two segments, because they had not yet submitted their proposals for the segments Section 21102 of CEQA provides, “No state agency, board, or commission shall request funds, nor shall any state agency, board, or commission which au- thorizes expenditures of funds * * * authorize funds for ex- penditure for any project, other than a project involving only planning, which could have a significant effect on the environment unless such request or authorization is accom- panied by a detailed statement setting forth the matters speci- fied in Section 21100.” Relying on this provision, the state defendants argue that CEQA is only applicable to a project before funds are authorized for it. The California Highway Commission approved the initial financ- ing of the Century Freeway with funds from the State Highway Fund on October 23, 1967. Therefore, the state defendants ar- gue, it was too late to apply CEQA to the Century Freeway when the statute entered into effect. The Court does not believe that the legislature intended to foreclose the application of CEQA to every project that received some funding prior to September 18, 1970. Section 21102 does not establish an exclusive deadline applicable even to projects the planning or financing of which began before CEQA’s enact- ment. “LGR — = to the FHWA for approval." In addition, subsequent to the date on which CEQA became law, the state defendants submitted a proposal for revisions in the design of a third segment of the freeway to the FHWA for approval.’* Because the planning of the Century Freeway was still in progress when CEQA entered into effect, compliance with Section 21100 was called for. Moreover, since the federal defendants are being re- quired to prepare a NEPA statement, there is no rea- son why compliance with CEQA would be impractica- ble for the state defendants. The planning of a federal- aid highway requires close cooperation between state and federal authorities, and the state and federal de- fendants will assuredly collaborate in the preparation of the NEPA statement on the Century Freeway. The requirements of NEPA and CEQA are so similar that preparation of a CEQA statement should demand little additional work, and whatever inconvenience com- pliance with CEQA causes the state defendants should be negligible. The Public Hearing Requirement: [11, 12] When the state defendants began planning the Century Freeway, Section 128(a) of the Federal- Aid Highway Act, 23 U.S.C. § 128(a), required them to hold public hearings to consider the “economic ef- fects” of constructing a freeway at the location that they proposed. The statute was amended on August 23, 1968, and several requirements were added to Sec- tion 128(a). The section now reads as follows; the re- quirements added in 1968 are italicized: “See Exhibits MM and OO to Conrado affidavit, filed April 7, 1972. 18See Exhibit PP to Conrado affidavit, filed April 7, 1972. a RR OD IR ek = = “Any State highway department which submits plans for a Federal-aid highway project involving the bypassing of, or going through, any city, town, or village, either incorporated or unincor- porated, shall certify to the Secretary that it has had public hearings, or has afforded the oppor- tunity for such hearings, and has considered the economic and social effects of such a location, its impact on the environment, and its consistency with the goals and objectives of such urban plan- ning as has been promulgated by the community.” [Emphases added. ] Regulations prepared by the FHWA pursuant to Sec- tion 128(a) expand upon the basic Statutory require- ment. See PPM 20-8, 23 C.F.R. Part 1, Appendix A. The FHWA regulations direct the state highway au- thorities to hold two sets of hearings. First, a “corridor public hearing” must be held before the state author- ities select a proposed route location for submission to the FHWA for its approval. The purpose of this hear- ing is to ensure public participation “in the process of determining the need for, and the location of, a Federal- aid highway.” PPM 20-8, § 4a. [Emphasis added. ] Second, a “highway design public hearing” must be held after the FHWA has approved the route location, but before the state authorities have selected a specific design proposal for submission to the FHWA for design approval. The purpose of this hearing is to ensure pub- lic participation “in the process of determining the specific location and major design features of a Federal- aid highway.” PPM 20-8, € 4b. The regulations also State that these hearings should provide “a public forum that affords a full opportunity for presenting views on * * * the social, economic, environmental, and EAN Ef OE TN ELE O LEG St LEI OT MOET INE Sr LANL COTO CR OORT LS OER R 2 aeRO Br Cree, pon other effects” of alternate locations and designs. PPM 20-8, 44 4a(3) and 4b(3). In addition, paragraph 4c _ of PPM 20-8 lists twenty-three possible “social, eco- nomic, and environmental effects” that are relevant to the selection of routes and designs for proposed high- ways.”® 19PPM 20-8, § 4c, provides, “Social, economic, and environmental effects’ means the direct and indirect benefits or losses to the community and to highway users. It includes all such effects that are relevant and applicable to the particular location or design under considera: tion such as: “(1) Fast, safe and efficient transportation. “(2) National defense. “(3) Economic activity. “(4) Employment. “(5) Recreation and parks. “(6) Fire protection. “(7) Aesthetics. “(8) Public utilities. “(9) Public health and safety. “(10) Residential and neighborhood character and location. “(11) Religious institutions and practices. “(12) Conduct and financing of Government (including ef- fect on local tax base and social service costs). “(13) Conservation (including erosion, sedimentation, wild- life and general ecology of the area). “(14) Natural and historic landmarks. “(15) Noise, and air and water pollution. “(16) Property values. “(17) Multiple use of space. “(18) Replacement housing. “(19) Education (including disruption of school district operations). “(20) Displacement of families and businesses. “(21) Engineering, right-of-way and construction costs of the project and related facilities. “(22) Maintenance and operating costs of the project and related facilities. “(23) Operation and use vf existing highway facilities and other transportation facilities during construction and after com- pletion. “This list of effects is not meani to be exclusive, nor does it mean that each effect considered must be given equal weight in mak- ing a determination upon a particular highway location or design.” — = The state defendants divided the Century Freeway into two segments for the purpose of conducting cor- ridor public hearings. Two hearings were held for each segment—the first conducted by the Division of High- ways and the second by the California Highway Com- mission. All four of these hearings were held before Au- gust 23, 1968, when the amendment to Section 128(a) went into effect.” The state defendants then divided the freeway into eight segments for the purpose of plan- ning the highway design and securing FHWA approval for their design proposals. One segment received design approval from the FHWA on August 14, 1968.2! Highway design public hearings for the remaining seven segmenis, however, were held after August 1968; these hearings, as a result, were subject to the amended version of Section 128(a).2? The plaintiffs contend that these design hearings did not adequately consider the social and environmental effects of the Century Freeway and that neither the design hearings nor the corridor hearings provided an adequate opportunity for members of the public to present their views. Therefore the plaintiffs urge the Court to order the state defend- ants to hold new hearings that comply with Section 128(a) and PPM 20-8. The state defendants maintain °The two corridor hearings for the western segment of the freeway were held on June 5, 1963, and August 13, 1965. The two hearings for the eastern segment were held on March 30, 1967, and April 16, 1968. 21§ee Conrado affidavit, filed April 7, 1972. The affidavit does not indicate whether or not a highway design public hearing was held for that segment. It is not clear whether no hearing was held because a separate highway design hearing was not required at that time or whether a hearing was held but the affiant neg- lected to mention it in his affidavit. **The seven design hearings were held on June 24, July 8, September 17, and October 1 , 1969, and January 28, April 22, and May 13, 1970. Seater - SES SCS TY Mme. BOM ALESIS 2S TES SEES TGS PDE PD Fong: Daw SNF A RS APO ae eae — that the hearings that they conducted were quite satis- factory. Having examined the transcripts of the hearings and the reports on the hearings submitted to the FHWA by the state defendants, the Court is not prepared to say that the hearings were totally inadequate in their con- sideration of the relevant social, economic, and en- vironmental effects, nor that they provided an inade- quate “public forum * * * for presenting views” on alternate locations and designs for the freeway. The hearings may not have been ideal, but as paragraph 4c of PPM 20-8 recognizes, each possible social, economic, or environmental effect need not necessarily “be given equal weight in making a determination upon a par- ticular highway iocation or design.” Nevertheless, the transcripts and the reports reveal that very little con- sideration was given to one of the most important of the Century Freeway’s effects—i.e., its effect on noise and air pollution. This effect is so crucial and the consideration given to it so minimal that the Court believes that further work on the freeway should be en- joined until the state defendants certify to the FHWA that they have held, or have provided an opportunity for, new public hearings focusing on the likely effect of the freeway on air and noise pollution. The Court’s conclusion leads to the question of whether both new corridor hearings and new design hearings are appropriate. Corridor hearings, according to the program established in paragraph 4 of PPM 20-8, precede design hearings and consider the broader issues: “the need for, and location of, a Federai-aiu high- way.” Design hearings then consider more technical issues: “the specific location and major design features of a Federal-aid highway.” The amended version of MOUGTRE GL On mee apegey e oer FEVER PETIA Rt SOP te een tom 5: eben a eee ae ee De EL ROE Ce aE DEES PTR SRS UR | i — Section 128(a)—the version that was in effect when seven design hearings were held on the Century Free- way—required those hearings to consider the environ- mental effects of the proposed highway. The adminis- trative regulations that were in effect at that time speci- fied that the hearings were to afford “a full opportu- nity for presenting views on major highway design fea- tures, including the * * * environmental * * * effects . of alternate designs.” PPM 20-8, 4 4b(3).” Since the applicable statutory and administrative provisions were not complied with insofar as they required considera- tion of the effects of the highway on air and noise pollution, new design hearings clearly are necessary. The propriety of requiring new corridor hearings presents a more difficult question. When the corridor hearings on the Century Freeway were held, Section 128(a) had not yet been amended, and PPM 20-8 did not exist. The corridor hearings that the defendants held, in short, complied with the statutes and regula- tions that were in effect at that time. Despite this fact, the Court believes that new corridor hearings are neces- sary. Section 102(2)(C) of NEPA requires the feder- al defendants to prepare an environraental impact state- ment. If they are to do that in good faith, they must reconsider the entire Century. Freeway project. Not only must they reexamine the specific route and design that they have proposed for the freeway, but they must also consider alternate means of transportation and even abandonment of the project entirely. Section 21100 of CEQA places similar demands on the state defendants. “PPM 20-8 was published in the Federal Register on January 17, 1969. 34 Fed.Reg. 728. The seven public hearings referred to in the text were conducted between June 1969 and May 1970. See n. 22, supra. . Cen en —28— Since NEPA and CEQA demand a thorough reevalua- tion, it would make little sense to require the state de- fendants to seek the views and observations of the pub- lic on the design of the freeway, but to excuse them from consulting with the public on the broad issue that PPM 20-8 reserves for corridor hearings—i.e., the issue of “the need for” the freeway. Section 128(a) demon- strates Congress’ recognition of an’ important principle: that experts, regardless of their training, experience, ‘,and good faith, do not enjoy a monopoly on wisdom. Section 128(a) and PPM 20-8 establish a mechanism for securing public participation in the decision making process, and defendants should use that mechanism in evaluating the advisability of continuing with the Cen- tury Freeway. This conclusion “is compelled by the congressional directive in Section 102 of [NEPA] that ‘to the fullest extent possible * * * public laws of the United States shall be interpreted and administered in accordance with the policies’ set forth in the declara- tion of policy [in Section 101 of NEPA.]” Arlington Coalition on Transportation v. Volpe, supra.“ [Em- phasis added. | [13] The Court does ‘not intend to lay down de- tailed instructions on the format or timing of the hear- 24The required public hearings on the highway in question in Arlington Coalition had been held during 1958—five years be- fore the first corridor hearing on the Century Freeway and ten years before the amendment to Section 128(a). Nevertheless, the Court of Appeals ordered the defendants to hold new public hearings. Judge Craven wrote, “We think that the requirements added to Section 128(a) apply to a highway ongoing at the ef- fective date of the amendment if the costs of altering or abandon- ‘ing the proposed location would not certainly outweigh whatever benefits might be derived therefrom.” Judge Craven then stated, “As we have concluded * * * above [i.e., in regard to NEPA], Arlington I-66 has not yet reached the critical stage of comple- tion.” 458 F.2d at 1337. The Century Freeway has not reached that stage either. v SR 1 a LTE ee rear mie menor iress0 carp meneerertapee PHA SRE SOIR ABS AOI MAO Mteshis PLS — ings it has directed. A few observations should suffice. The Court does expect the state defendants to follow the basic procedure set forth in PPM 20-8—i.e., to hold separate corridor and design hearings, with the corridor hearing or hearings preceding the design hear- ing or hearings. The decisions as to how many hearings are necessary or as to the number of segments, if say, into which the freeway should be divides for the pur- pose of conducting the hearings should be left to the sound discretion of the state defendants. In considering “the need for,” the location of, and “the major design features of” the Century Freeway, the hearings should give special attention to the freeway's environmental impact, particularly its likely effect on air and noise pollution. Other “social, economic, and environmental effects” will also be relevant, however, because the decisions that the defendants must make during their reevaluation will have to be based on a balancing of the various costs and benefits of each alternative course of action. [14] A final word is necessary. The defendants have argued that the plaintiffs are barred from seeking new public hearings by the equitable doctrine of laches. There has indeed been a very long interval between the earliest public hearings and the institution of this lawsuit by plaintiffs. While this delay has no doubt inconvenienced the defendants, that inconvenience does not outweigh the public’s interest in assuring that the costs and benefits of the Century Freeway proiect are fully and deliberately considered by the responsible public officials. The Relocation Statutes: Construction of the Century Freeway will necessitate the acquisition by the California Division of Highways SN RENTAL ITE I our RA at cemmataaae | of 3900 single-family dwellings and 3000 multiple- family dwellings; it will force 21,000 people to relocate. Many of these dwellings have already been acquired, and many individuals have already evacuated the free- way corridor.” Federal law prohibits the FHWA from funding the construction of any federal-aid highway that will cause the displacement of persons living in the highway cor- ridor unless the FHWA has received from the state highway authorities “satisfactory assurances”: (1) that “fair and reasonable relocation” payments for moving expenses and for “replacement hous- ing” will be provided to persons who must re- locate; (2) that “relocation assistance programs” will be provided for such displaced persons; and (3) that “within a reasonable period of time prior to displacement there will be available” ade- quate replacement housing. These three basic requirements were initially contained in Chapter V of the Federal-Aid Highway Act of 1968 [hereinafter Highway Act], 23 U.S.C. §§ 501-511. See Section 502, 23 U.S.C. § 502. Chapter V was sub- sequently replaced by the Uniform Relocation Assist- ance and Real Property Acquisition Policies Act of 1970 [hereinafter Relocation Act], 42 U.S.C. §§ 4601- 4655, which applied the same basic requirements to highways and to all other federal and federal-aid proj- ects that cause the displacement of people. See Section 25See the testimony of Robert Acorn, Assistant District Right- of-Way Agent with the Division of Highways (Tr. at 136-144), and the testimony of Frank M. Lentz, Senior District Right-of- Way Agent with the Division of Highways and the supervisor of the Division’s relocation assistance program (Tr. at 230). — 210, 42 U.S.C. § 4630. In enacting Chapter V of the Highway Act and later in replacing it with the more comprehensive Relocation Act, Congress intended to establish relocation policies that would, in the words of Section 501 of the Highway Act, 23 U.S.C. § 501, “insure that a few individuals do not suffer dispropor- tionate injuries as a result of programs designed for the benefit of the public as a whole.” Compare Section 201 of the Relocation Act, 42 U.S.C. § 4621, which expresses the same thought in similar language. Various sections of the two statutes provide relevant details about the three basic requirements that Section 502 of the Highway Act, 23 U.S.C. § 502, and Section 210 of the Relocation Act, 42 U.S.C. § 4630, impose upon state highway authorities. These sections merit fuller explanation: (1) The state authorities must assure the FHWA that they will provide “fair and reasonable relocation” payments. Section 505 of the Highway Act, 23 U.S.C. § 505, and Section 202 of the Relocation Act, 42 U.S.C. § 4622, require the state authorities to reim- burse displaced persons for moving expenses. The stat- utes also require supplemental payments to make up the difference between the compensation that a home- owner receives from the state for his old home and the purchase price necessary to obtain comparable replace- ment housing. In addition, the statutes require pay- ments for the expenses incurred in securing title to a new home and for any increases in interest payments that are required to finance comparable replacement hous- ing. In the case of a tenant, the statutes require pay- ments for rental increases that are necessary to obtain comparable replacement housing. See Sections 506 and = = 507 of the Highway Act, 23 U.S.C. §§ 506, 507, and Sections 203 and 204 of the Relocation Act, 42 U.S.C. §§ 4623, 4624. Under the Highway Act the maximum that could be paid to a homeowner as a supplemental payment to make up the difference between his sale price to the state and the cost of replacement housing was $5000; the maximum sum that could be paid to a tenant to make up a rent differential was $1500. Under the Relocation Act a homeowner can receive a maxi- mum relocation payment of $15,000 to cover both the difference between his sale price and the cost of re- placement _ and his other relocation expenses; a tenant can feceive as much as $4000 to cover a rent differential. Jd. The federal government, in turn, reim- burses the state for virtually all of these payments. See Section 504 of the Highway Act, 23 U.S.C. § 504, and Section 211 of the Relocation Act, 42 U.S.C. § 4631. (2) The state authorities must assure the FHWA that they will afford displaced persons “relocation as- sistance programs.” Section 508 of the Highway Act, 23 U.S.C. § 508, and Section 205 of the Relocation Act, 42 U.S.C. § 4625, require the state authorities to operate a relocation assistance program that will deter- mine the needs of displaced persons and businesses for relocation assistance; assure that within a reasonable period of time prior to displacement adequate replace- ment housing will be available; assist the owners of displaced businesses in obtaining suitable replacement locations; and supply information concerning federal and state programs that offer financial assistance to displaced persons. The Relocation Act added two other significant requirements: the state’s relocation assistance program must provide “current and continuing informa- = tion on the availability, prices, and rentals, of compa- rable decent, safe, and Sanitary” replacement housing, and it must “provide other advisory services to dis- placed persons in order to minimize hardships to such persons in adjusting to relocation.” (3) The state authorities must assure the FHWA that “within a reasonable period of time prior to dis- placement” adequate replacement housing will be avail- able. Such replacement housing must be located “in areas not generally less desirable in regard to public utilities and public and commercial facilities” than is the housing that must be evacuated; it must be available “at rents or prices within the financial means of the families and individuals displaced”: it must be “decent, safe, and sanitary”; it must be “equal in number to the number of and available to such displaced persons” as require such housing; and, except in certain cases au- thorized by FHWA regulations, it must be “reasonably accessible” to the places of employment of those dis- placed persons who require the housing. See Section 502(3) of the Highway Act and Section 205(c)(3) of the Relocation Act. Plaintiffs contend that the defendants have failed to meet the requirements of the Highway Act and the Re- location Act. They allege several shortcomings; the Court will discuss each one separately. Statewide versus Project Assurances The FHWA promulgated comprehensive regulations pursuant to Chapter V of the Highway Act during September of 1968. Instructional Memorandum 80-1-68 (Sept. 5, 1968) [hereinafter IM 80-1-68]. After the Relocation Act became law, the FHWA promulgated similar regulations pursuant to that statute. Instruc- onli tional Memorandum 80-1-71 (April 30, 1971) [herein- after IM 80-1-71], 23 C.F.R. Part 1, Appendix A. In order to enable the FHWA to monitor the state highway authorities’ compliance with the three basic require- ments of Chapter V of the Highway Act, paragraph 5a of IM 80-1-68 provided, in fart, “No State highway department shall be author- ized to proceed with any phase of any project which will cause the displacement of any person * * * until 1i has furnished satisfactory assurances * * * that “(1) Relocation payments and services were or will be provided * * * “(2) In the event housing will not be available within a reasonable period of time prior to dis- placement * * *, the States shall provide a de- tailed statement specifying the respects in which such assurance cannot be furnished, the extent to which such housing will be available prior to dis- placement, the period of time prior to displace- ment when that housing will become available and an estimate of the additional time within which such housing will become av [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_2208%3A1. Public record. Not legal advice.