Iowa Citizens for Environmental Quality, Inc. v. John A. Volpe, as Secretary of Transportation
487 F.2d 849
8th Cir.
1973
Check Treatment

*1 tion. Under these circumstances question appellant’s arises whether sixth right amendment to confront his accus- infringed. See Bruton v. Unit-

ers was States, 123, 1620,

ed 88 S.Ct. U.S. (1968).

L.Ed.2d 476 question, present case,

This we

need not decide. evidence intro- against appellant duced was overwhelm- ing. properly His taken confession was jury by

read agent. an F.B.I. Moreover, eyewitnesses two testified using appellant, name, a false sold

to them the stolen automobile and fur- gave

ther that he them false information

concerning Finally, prose- the car. cution introduced bill ap- of sale which Lay, Judge, dissented and pellant signed when he sold the stolen opinion. filed Considering ear. imposing body against appellant, evidence we find the possible violation of the Bruton rule to beyond have been “harmless a reason- Harrington able doubt.” California, U.S. 89 S.Ct. 23 L.Ed.2d (1969); Chapman California, U.S. 87 S.Ct. (1967); Clayton, United States v. cert, (6th 1969), denied U.S. 90 S.Ct. 26 L.Ed.2d of conviction is there-

fore affirmed.

IOWA CITIZENS FOR ENVIRONMENT QUALITY, INC., AL al., et Appellants,

John VOLPE, Secretary A. of Trans al., portation, Appellees. et

No. 73-1062. Appeals,

United States Court Eighth Circuit. Sept. 11,

Submitted 1973.

Decided Nov. *2 Moines, ap- Seism, Des

Robert B. pellants. Atty., Dept, of Shearer, Lawrence E. appellees. Washington, C.,

Justice, D. OOSTERHOUT, Before Senior VAN Judge, ROSS, Cir- LAY and Judges. cuit OOSTERHOUT, VAN Senior Circuit Judge. timely appeal by plaintiffs,

This is a organization, an Iowa eighteen individuals, from final order dismissing their com- District Court against plaint seeking injunctive relief diagonal the construction of a 21.4 mile segment Highway 1-35, Interstate designated Highway Ad- the Federal ministration as I-35-6.1 Secretary Defendants are Transportation, of the Federal officials Highway (FHWA) and Administration officers of the Iowa State major part (ISHC). Commission provided of the cost of 1-35-6 is government through FHWA. Judge This case to was tried Stuart. Many stipulated; facts were evidence was received. Stuart filed opinion on well-reasoned memorandum 30, 1972, reported November at 3 E.L.R. applicable sets which out law findings incorporates detailed upon fact and conclusions of law complaint is based. dismissal provisions undisputed Policy Act the National Environmental ' alignment portion. segment” segment “Diagonal 1-35-6 refers to the entire mile 27.4 yet diagonal- of 1-35 not constructed or under construc fact that fers to the ly will survey herein, tion. For the sake of units of area of Iowa. convenience we sever the diagonal will utilize 1-35-6 as the 21.4 mile (NEPA), seq., apply U.S.C.,§ 4321 et ficial” on the of the action on to environment, here involved. 1-35-6 including alternatives upon proposed Two basic issues are raised 102(D) action. appeal, (1) the Envi- wit: Whether “study, develop (EIS) Statement filed appropriate and describe alternatives” completion connection action. Plaintiffs here *3 complies NEPA; project 1-35-6 claim comple- the statement filed for the (2) whether of the tion satisfy EIS of Interstate 35 fails to responsi- request requirements ISHC at the of the of Section 102 in agencies, ble federal any which the latter does not state in sufficient detail al- views, complies adopts, modifies project question, ternatives to the in nor requirements with the appropriate of does NEPA. it show that alterna- studied, developed, were ever Substantially the same issues were described. Plaintiffs also assert presented to the trial court and an- were good- statement does not reflect a agree swered in the affirmative. We balancing faith of environmental factors and affirm. in it fails to discuss en- in eases con- standard vironmental considerations sufficient forth, cerning succinctly NEPA is set detail. Fund, v. Environmental Defense Inc. 289, Corps Engineers, F.2d is well established (8th 1972): Cir. NEPA is an “environmental full disclo law,” sure such that administrative involved, the re- Where NEPA agencies government of the federal must viewing court first determine must develop and consider all the environmen decision after a reached its consequences tal of their En decisions. good full, and bal- faith consideration Fund, Corps vironmental Defense Inc. v. ancing of environmental factors. Engineers, 289, 470 F.2d 294-295 according determine, court must then (8th 1972). Cir. The environmental im set forth standards §§ pact required by NEPA is to 101(b) Act, 102(1) of the wheth- serve as a basis for consideration of en er “the actual of costs and balance vironmental factors in arbitrary benefits that was struck was volved and is to for a basis criti gave weight clearly insufficient cal evaluation those not associated values.” Calvert Cliffs’ environmental agency. with the Environmental De Coordinating AEC, Committee v. [146 Fund, Froehlke, fense Inc. v. F.2d 33, U.S.App.D.C. 1109, 449 F.2d 346, (8th 1972); 350-351 Cir. Environ (1971)]. Fund, Corps mental Defense Inc. v. addition, empow- In court is not “[t]he Engineers, (8th 297-299 for that ered to substitute Coordinating 1972); Cir. Calvert Cliffs’ agency.” of the Citizens to Preserve Committee, AEC, U.S.App.D. Inc. v. Park 401 U.S. Overton (1971). 33, 449 C. F.2d 814, 824, 416, 91 S.Ct. Thus, agencies all federal to use the are (1971). in con environmental ducting good-faith process balanc Adequacy Final Environmental ing important of the fac Statement. any agency apply tors which action. short, policies enunciat of NEPA 102(C) of NEPA Section considered ed 101 must be Section responsible to “[i]nclude regula policies, implemented in the report on every recommendation United tions, public laws of legislation proposals and other possible” fullest extent affecting “to the States significantly Federal actions requirements through procedural environment, quality human 102(2). Defense Environmental of- detailed statement greatly Engineers, Corps differ. Fund, tives would Inc. v. succinctly 1972); (8th the factual Cal- Stuart described Cir. F.2d 296-297 Committee, Coordinating situation: vert Cliffs’ AEC, U.S.App.D.C. being pre- At the time F.2d 1114-1115 pared project northern 1-35-6 the for the and southern termini though pro However, strict fixed the construction had been requirements of Section cedural segments other In Iowa 1-35. may be, interpreted they on a must be segment had this 27.4 mile 1-35 Environmental basis of reasonableness. completed. termi- The northern Engi Fund, Inc., Corps of Defense 11 miles east nus is about (8th neers, involved The area southern terminus.. “* * * requirement is not f this [I] points route between these two *4 rubber, it The statute neither is iron. essentially farm- the same tillable is light of reason must be construed ground. impact the natural The on is, fairly not to demand what if is greatly environment not differ would giv- meaningfully possible, speaking, not regardless particular route of which obvious, of en- the resources en route selected was selected. On the ergy research —and time —available only displaced. being five families are infi- are not to meet the Nation’s needs any historical, ar- not does affect Council, Inc. nite.” Natural Resources cheological, geological, rec- natural or Morton, U.S.App.D.C. 458 F.2d v. 148 made struc- reational features or man (1972). See Environmental any consequence, other than' tures of Engi- Fund, Corps of Defense Inc. v. previously men- the five homesteads (N.D.Miss. neers, F.Supp. 916, greatest tioned. The environmental Fund, 1972); Environmental Defense impact on will be the adverse effect Corps Engineers, v. Inc. farming by operations di- caused (E.D.Ark.1972). agonal straightening severance, for than one-half the Iowa River less Judge noted, As the environ- Stuart the construction mile and the effect of “to some extent must statement of a four lane limited access divided light particular be examined highway across tillable farmland. surrounding the facts and circumstances * * * project required order to determine In such a situation the detail sufficiency. re- impact its The extent detail environmental statement quired necessarily must be related would not match that which would be prob- complexity possible of the environmental quired alterna- if the various by project.” historical, differently lems created The dis- affected geological, cussion of effects need environmental natural features. not placing highway be “exhaustive” but rather need tillable of a acrdSs particular for a sufficient information with no features farmland “reasoned Nat- choice of alternatives.” does interest or concern Council, analysis v. require ural Resources Defense Inc. exhaustive Morton, U.S.App.D.C. significant required would be (1972). See Sierra Club in environmental differences Froehlke, F.Supp. 440, (W.D. among present. alternatives were Wis.1972), aspects where the court stated of al- “Where the environmental readily require ternatives are identifiable Section does not agency, it them— from, is reasonable to state problem “each be documented ev- ready reference those concerned angle ery explore every potential consequences with the of the decision and good or ill.” Natural Resources De- its alternatives.” In the instant case the environmental Council, Morton, fense 148 U.S. consequences App.D.C. of the reasonable alterna- Preparation possible the Environmental Im- ease, alter- In the instant pact extremely lim- Statement found to natives were closing Commission. matter of is a ited. The highway major gap in interstate a plaintiffs’ contention second As farmland. across tillable appeal is that re doing noted, the alternative Stuart sponsible for the federal action at exhaustively nothing need not have delegate issue to a state light disadvan- of the obvious detailed duty preparing the environmental public in- tages alternative. of that required gap completing the small terest rely 102(2) (C) of NEPA. Plaintiffs clearly The other alterna- established. Planning principally County on Greene routings involved tives thus Commission, Board Federal Power diagonal gap, or otherwise. to fill (2d In that 455 F.2d 412 alternative found that The court regulatory case the straight building connecting link sig was held to have abdicated right angle would turns lines with two part responsibility nificant of its under require over more 7.6 miles substituting Act pro- take out of similar land and thus applicant permit. for a The Second substantially more land than duction potential Circuit cited the likelihood project. The envi- would the applicant’s statement would be consequences differ would not “self-serving assumptions.” based on Id. *5 extent, any significant envi- and the Thus, agency at 420. the federal impact thus was ronmental statement adopt statement, applicant’s should the oth- required to exhaustive as be as negate this would the strict considera erwise. required tion of environmental values agency of envi found the Stuart the Act. The Second Circuit thus held light impact statement, of though applicant prepare could circumstances, to be these statement, the draft the final environ put persons on interested sufficient impact pre statement must be significant impacts this notice of the pared by require the FPC itself aas project reason on the environment. A ment of the Id. at 420-422. statute. interpretation 102 should able of Section correct; finding County no indicate that to be Several cases since Greene consequences adopted reasoning high- is all of environmental tice have as to id.; ways required federally approved Club is Sierra See and other (W.D. Froehlke, F.Supp. projects. v. 444 funded 345 See Conservation Soci- Wis.1972); ety Vermont, Council Conservation of Southern Inc. v. Secre- Froehlke, F.Supp. tary, F.Supp. 627, (D.Vt.1973) 340 North Carolina v. 362 631 * ** ques (D.N.C.1972). per- (“comments merely “The 227-228 were functory, agency equivalent tion to all reason be asked is whether of an Air, stamp”); have able alternatives to the rubber Citizens for Clean considered, Corps Engineers, F.Supp. even if some were Inc. v. 349 briefly (S.D.N.Y.1972) (“perfunctory Envi alluded to or mentioned.” 707 Fund, agencies’ Arm listing conclusions”); ronmental Defense of other v. strong, (N.D.Cal. F.Supp. Stop Volpe, 352 57 Route 7 v. Committee to 1972). impact F.Supp. 731, (D.Conn.1972). Sup- The environmental state brief, case, County port ment while somewhat for the extension of Greene requirements fulfilled these as to this to federal-aid construction has project. agree Comment, Prepa- court We with trial been voiced. See The EPA statement met ration of Environmental State- Commissions, requirements presented under facts ments 58 Iowa L.Rev. 1268 record. Secretary Transpor- however, courts, refused is clear that [of have Several stamp merely County did not rubber apply tation] the construc- Greene reviewed, ap- work, highways other but rather State’s tion of federal-aid statement, thus projects. proved, adopted federally-aided sponsored making is this Court’s delegation preparation of an it his own. procedure opinion in har- impact that such a statutory mony purposes responsible to a goals Id. requirements NEPA.” highway agency, for construction albeit runway, specifically Environmental airport also The Citizens was See of an (D. Brinegar, F.Supp. Volpe, the Land v. allowed in Life of Council (10th 1973). aff’d, (9th Kan., 1973), F.2d 460 Cir. Rights 1973); dele- Tenants’ indicated that Cir. Northside Ninth Circuit such 72-C-300, E.L. proper gation quite No. because Coalition 1973); “significant (E.D.Wis., participation of Jan. and active” R. 20154 cf. Against Free- for Mass Transit Citizens ways Brinegar, impact statement. Slip opinion County (D.Ariz.1973). at Society Ver- Conservation Southern court, upon the basis The district specifically distin- mont were thus specifically found evidence, substantial guished. earlier had Ninth Circuit changes recommended the FHWA impliedly delegation approved provided ad- in the initial statement and preparation of an environmental to be added ditional information Volpe, 455 F.2d in Lathan v. Review, modification final statement. (9th adoption by of the state- the FHWA decisions have Several district court ease. occurred ment as its own delegations upheld en- participation the re- extensive Such In Na- vironmental statements. clearly sponsible federal would Group v. tional Forest Preservation distinguish Coun- from Greene this case *6 123, (D.Mont. Volpe, F.Supp. 127 352 case, ty. present the In our agency “by 1972) , it- the significant agency did not “abdicate necessary. self” held not to be was responsibility” part to the state of its Rather, the that the court indicated stamp- by “rubber commission regulations that insure standards incom- ing” adopting or an unaltered or consequences and alterna- pletely reviewed environmental agency by for are offered the state swpra, Land, the statement. See of Life addition, re- consideration. F.2d at 485 468. impact state- of the environmental view 102(2) (C) of NEPA by Section was held ment the federal environmen- detailed statement the “clearly spirit of NEPA.” the be within project by the specifical- tal of a federal Again, County was Id. sponsible It does federal official. distinguished ly because shall specifically how such official state agency participation. Alla- In Finish upon his (FAIR) obtain the information Right, toona’s Interstate enactment the (N.D.Ga. is based. Since Volpe, F.Supp. 933, 938 355 acquiescence NEPA, by FHWA with the 1973), the preparation of a statement Environmental on Department “in the Council Georgia knowledge Quality,2 the and state, feder- and local consultation” with interpreted consistently Congress,3 has agencies approved. “The record al was Train, 16, 1971, Quality Chairman Russell was 3. On June on Environmental The Council n apprised Quality, procedure Environmental approved on the Council of this of and published the House Subcommittee entirety before testified of PPM-90-1 since the ap- fully Oversight Investigation Monitor, and publication, and Vol. 102 in its official pro- recognized prised of FHWA’s specifically 1971, this Subcommittee I, 9, Oct. No. agencies relying for much on state I, cedure of at Vol. No. 10.

855 Congressional seq., permitting but the command as provisions as the of NEPA majority delegation physical As the decision acknowl- act well. edges, Transporta- necessary Department gathering for the information regulations (C) that tion’s now of Section by prepared preliminary highway departments is to be EIS EIS to the state recommending sponsoring agency, it is to state federal-aid approved disapproved by highways. be appropri- FHWA and then circulated Department Transportation agencies comment; ate interested August 24, 90-1, promulgated PPM thereafter, com- the final with all EIS 1971, provides prelimi at § FHWA, to be reviewed ments is spon nary prepared by shall be necessary modify it which will as soring agency, approved it appropriate adopt when Although it as its own. FHWA, and that it be circulated interpretation administrative agencies appropriate to comment, interested great of a defer- statute is entitled EIS, later the final ence, question the ultimate as to wheth- including copies of re all comments agency procedure er an NEPA violates ceived, shall be forwarded to FHWA and is one of law and must be resolved statement, FHWA shall review its court. cannot be modify necessary appro when own self-arbiter of it exceeds whether priate, adopt it as own. It is well es its delegated power. See, g., e. Social tablished inter that an administrative Security Nierotko, Board v. 327 U.S. pretation of a statute 358, 369, 637, L.Ed. 718 S.Ct. charged with its is entitled enforcement (1946); England United v. New States great Griggs Duke deference. (1st Co., 138, Coal & Coke Co., 424, Power 433-434, U.S. S. 1963); Stop Committee to Route cf. (1971); Ct. 28 L.Ed.2d 158 United (D.Conn. 7 v. City Chicago, States v. 400 U.S. (1970); S.Ct. L.Ed.2d Udall Tallman, 380 U.S. 85 S.Ct. 102(2) (C) NEPA, 42 U.S. 4332(2) (C), specifically provides C. § prepared that a detailed EIS The decision must be of the trial court is in all respects supported by “the Federal evi- substantial official" accompany by any that this “shall dence and is not induced erro- through existing proposal agency re- applicable neous view of law. processes.” sup- to see opinion trial view I fail how court’s well-considered ports explicit language *7 read NEPA can the dismissal. information-gathering to mean preparation and that Affirmed. of the statement be del- egated agency in- to a state with a vital LAY, Judge (dissenting). investiga- terest the outcome of the respectfully I dissent. up respon- tion. NEPA does not set the approval This court’s of the FHWA’s agency sible federal as a board delegation pre- of a action, simply contemplated the state liminary impact making suggestions here, modifying environmental state- (EIS) sponsoring ment giving to the state there, the ul- with idea either only spirit not violates the and approval rejection plan. timate purpose of contrary, explicit National Environmental On the the Act is Policy Act (NEPA), 4321 et U.S.C. § it is the federal concerned with Hearings the information contained environmental See also Before the Subcommittee impact Hearings Tape statements. on Red on Roads of the Senate on Committee Public Investigations Works, Cong., sess., p. (August 25, Before the Subcommittee on 91st 1st Oversight and of the House Committee on Pub- Works, Cong., sess., pp. lic 92d 1st 261-263. recognized, prepare exists a funda- action which must there federal study responsi- impact and de- mental difference between the the environmental making fact-gathering velop bility for and alternatives to the action. independent objective appraisal of envi- majority’s of the Act construction impact opposed review- to statutory derogation is in scheme. ing self-serving of a declarations requires prior preparing to NEPA study agency. biased a state EIS, responsible official federal Planning County Board Federal Pow- from consult with and obtain comments (2d Commission, er jurisdic- any has “which 1972); Comment, 'Preparation expertise special tion with law or of Environmental Statements spect impact in- Highway Commissions, L. State 58 Iowa Thereafter, volved.” (1973).1 Despite Rev. preliminary federal officer is to take difference, majority opinion finds EIS, along and views the comments compliance there was substantial agencies,” “Federal, local and with NEPA since the FHWA did views and submit these combined merely stamp” report the state “rubber “through existing agency review required but fact additional informa- processes.” tion to be added to the final statement. statutory procedure express thus This impor- necessity This overlooks the and contemplates preliminary a tance of the EIS responsible federal official be submit- early decisionmaking process. agency’s along com- ted with the state prophylactic, There exists no real late cry far ments and views. This is a game, possibility to overcome the reviewing highway simply from a presentation of a state’s biased environ- department’s study. affirm- As has factors. ative and initial federal action. freeways expressways. thorough bias towards and note in the' Iowa Re Law Iowa, many primary example, view, up points For roads author the deficiencies extremely poor Yet, delegation procedure: are in condition. Highway First, Iowa spend Commission continues he writes: majority budget evidence, including testimony by of its expressways. construction Available prior Secretary freeways Transportation, for way and The Free- John not even 518—4 statement does indicates that state commis- feasibility constructing affirmatively mention the a new do sions seek a neutral primary recon- modern two-lane road or unbiased of the environmental as- pects structing existing proposed project. alter- road. of a These bodies presented are natives different routes for tend to view environmental state- preference freeways freeway. procedural paperwork This ments as mere expressways despite justify prior continues unabated will decisions made the basis on engineering indicating cost-analysis the over- recent Iowa Poll of traditional expend- whelming majority oppose concepts. of Iowans freeways express- ing money Second, more he observes: ways primary Additionally, than1 on roads. [T]he Iowa Commission’s conces- freeways expressways inability plan have been under sion portation alternate trans- throughout highlights pri- in Nonetheless, attack numerous locations modes one of the *8 Freeway mary why impossible in Iowa. impact statement, 518—4 reasons it is for the Highway the Iowa Com- Commission to issue an fully complying statement blandly asserts that the needs of the mission with NEPA. is unrealis- traveling transpor- pjiblic are best served a free- tic to surmise that other means of way-expressway system. given equitable tation will be an evaluation Comment, Preparation experi- authority, The of Environmental an which has no Highway sys- ence, expertise any transportation Com- Statements in missions, except highways. 58 Iowa L.Rev. 1278-1280 tem finally, And it is said: problem A final by highway statements commissions is their County, supra regard high- proposed

In at this mandate in Greene to by Judge way problem exposed construction, was Kauf- and the construction man, contemplated legislatively who here observed:

upon venors and once ment of PASNY for abdicated a collate the umpire. sponsibility by dure, agencies, Commission The Federal Power Commission has applicamt’s potential, self-serving its own staff and the one comments significant part appears obvious danger substituting again to be content of other likelihood, shortcoming, its own. to act as an will be based assumptions. this the state- of its federal proce- inter- that- is tions” tion of the within Greene mandated in 1968. sible still act partment islatively -X- It is VHD raises will reflect agency. true that consistently [*] not to be the Vermont mandated construction brings This County. -X- “self-serving assump- an being true, Thus, the case with its VHD will receive danger advocate of [*] of an it is duty [*] directly EIS delega- impos- as a leg- De- [*] ordinary pri- -X- course of events -X -X- mary system money for Vermont Moreover, although decisions like highways high- whether the greatly expand- Scenic Hudson I have way here is built not but standing concept ed the to chal- immaterial; the VHD will lenge action, administrative interve- money spent want to see that where generally resources, nors have limited legislature the Vermont wants money both in terms and technical spent, and to that extent the VHD is expertise, and thus able to necessarily particu- an advocate of the analysis envi- effective project. lar part It was factors. Congress reason that has com- Id. at 631. pelled agencies to seek the aid of all County, Kaufman, in Greene expertise available formulate supra F.2d, quoting 419, of from at position early their own in the review Scenic Conference Hudson Preservation process, (emphasis added). Commission, v. Federal Power cert, Moreover, empha- (2 1965), the Second Circuit denied sub nom., sized the need for the federal Consolidated Edison v. Scenic Co. early agen- Conference, formulate its own EIS Hudson Preservation cy process. Otherwise, “alterna- 86 S.Ct. U.S. might applicant’s (1966), aptly be lost as the role of the described the produce quo tended to a status federal under NEPA: syndrome.” County, supra at case, many others, In this as rep- to be the Commission has claimed Judge Oakes, sitting by special public interest. resentative assignment permit as the district it to act court Ver- This role does not mont, calling umpire blandly faced the identical issue us. balls and before rejected any attempt He appearing be- circumvent strikes for adversaries responsibility it; right public initial must Conser- fore Society protec- Vermont, vation of Southern receive active and affirmative Secretary, (D. Inc. v. tion at the hands of Commission. Vt.1973). He observed: purpose spirit of NEPA Vermont, least, requiring at the Vermont on all an EIS Highway Department objec- duty, proposals qualitative has the commands a by Speaker testified to environ- House tive evaluation of adverse *9 Kennedy plan Commissioner effects the have. Such Highways Gray, legislative study requires independent to follow a investí- gation, of an from the biased views free Congress party. in- had interested If a the federal to sit

tended simply it could have board review clear that It did not. It made

said so. an affirmative has investiga- obligation make detailed study. accom-

tion This cannot be hindsight

plished by of facts

gathered by party. interested require I would reverse investigate independently

FHWA

prepare in con- detailed EIS its own requirements

formity

NEPA. America, STATES

UNITED Plaintiff-Appellee,

Lucio ARENAS-GRANADA and Carlos Espinosa-Ochoa, Arthur Defendants- Appellants. No. 73-2288

Summary Calendar.* Appeals,

United States Court of

Fifth Circuit.

Dec. (Court- Abrams, Miami,

Brenda Fla. appointed), for Arenas-Granada. Loffredo, Fla., Miami, Marco for Es- pinosa-Ochoa.

* Cir.; Entrprises, al., Casualty 5th see Isbell v. Citizens York et 5tli Rule Co. New Cir., 431 F.2d 409.