531 F.2d 637 | 2d Cir. | 1976
Lead Opinion
On December 11,1974 this court rendered its opinion in Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 2 Cir., 508 F.2d 927, which affirmed a judgment of the District Court of Vermont reported in 362 F.Supp. 627 (1973). The Solicitor General petitioned for and was granted a writ of certiorari. On October 6, 1975, this court’s prior judgment was vacated and the case was remanded for further consideration in light of Public Law 94-83 and Aberdeen & Rockfish R. R. v. SCRAP, 422 U.S. 289, 95 S.Ct. 2336, 45 L.Ed.2d 191 (1975). 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29. The reported opinions fully set forth the facts involved in this litigation and they will not be repeated here except as relevant to the remand.
In Conservation Society of Southern Vermont v. Secretary of Transportation, supra, this court reaffirmed the rule it announced in Greene County Planning Board v. FPC, 2 Cir., 455 F.2d 412, cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972) which required that an Environmental Impact Statement (EIS) sufficient to comply with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA) had to be prepared by the responsible federal agency and not by a state agency. As a result of this decision, the Federal Highway Administration (FHWA) initially ordered an almost total halt to all federally funded highway projects in the three states of this Circuit, and the states themselves have refrained from committing additional funds until the issue was finally decided. In response to our decision in Conservation Society, the Congress enacted Public Law No. 94-83 which added a new section 102(2)(D) to NEPA.
These findings have not been appealed and we conclude that there was compliance with the procedural requirements of Public Law No. 94-83. In our prior opinion we noted that “the district court found that substantively the EIS was adequate. There is no appeal from this aspect of the district court opinion.” 508 F.2d at 929 n. 6.
We also affirmed the holding of the district court that an EIS be prepared for the entire 280-mile length of Route 7 even though no plan then existed for constructing the superhighway through Connecticut, Massachusetts and Vermont. 508 F.2d at 934 — 36. The Supreme Court remand here cites SCRAP, supra, which holds that a federal agency must prepare its EIS at “the time at which it makes a recommendation or report on a proposal for federal action.” 422 U.S. at 320, 95 S.Ct. at 2356, 45 L.Ed.2d 215 (emphasis in original). Here the findings of the district court were that, although federal officials had knowledge of the overall planning process of state officials, there was “no overall federal plan” for improving the corridor into a superhigh
In light of the remand and this discussion, we reverse our prior decision and reverse the judgment of the district court.
. “Any detailed statement required under sub-paragraph (C) after January 1, 1970, for any major Federal action funded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of having been prepared by a State agency or official, if:
“(i) the State agency or official has statewide jurisdiction and has the responsibility for such action,
*639 “(ii) the responsible Federal official furnishes guidance and participates in such preparation,
“(iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and
“(iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of, any other State or any Federal land management entity of any action or any alternative thereto which may have significant impacts upon such State or affected Federal land management entity and, if there is any disagreement on such impacts, prepares a written assessment of such impacts and views for incorporation into such detailed statement.
The procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire statement or of any other responsibility under this chapter; and further, this sub-paragraph does not affect the legal sufficiency of statements prepared by State agencies with less than statewide jurisdiction.”
. We point this out since appellees argue that FHWA evaluation was pro forma because the EIS was substantively deficient. They also mention that despite the findings of the district court which we have noted, that court characterized the final comments of FHWA as “perfunctory” and a “rubber stamp.” 362 F.Supp. at 631. We note however that the court was applying the strict non-delegation rule of Greene County, supra, now rejected by congressional action.
Dissenting Opinion
(dissenting in part):
There can be no doubt that the Court’s previous decision in this matter (Conservation Society I)
The roots of the question now before the Court find their grounding in Greene County.
Notwithstanding the refusal of five other courts of appeals to follow the Greene County rule,
In response to Conservation Society I, Congress amended NEPA by adding a new section 102(2)(D). It provides that an EIS shall not be deemed insufficient solely because it was prepared by a state agency if “the responsible Federal official furnishes guidance and participates in such preparation [and] . . . independently evaluates such statement prior to its approval and adoption . . . .”
A.
My analysis begins with the particular language Congress employed to amend NEPA. The amendment concerns only the preparation of the EIS; it does not affect the requirement of section 102(2)(C) of NEPA that the EIS be formally adopted by the federal official. It appears to permit an EIS to be prepared by a state agency if the federal agency discharges three specific responsibilities. The federal agency must (1) furnish guidance in the preparation of the EIS, (2) participate in the preparation of the EIS, and (3) independently evaluate the EIS prepared by the state agency before approving and adopting it. These three requirements indicate that the federal agency must remain involved in a substantial way both during and after the state agency’s preparation of the EIS. To the same end, the amendment includes the statement that “[t]he procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope, objectivity, and content of the entire [EIS] or of any other responsibility under [NEPA], .
To the extent that Greene County and Conservation Society I place an absolute prohibition upon delegation to the state agency of responsibilities to prepare the EIS, they have now been overruled by Congress. But my understanding of the congressional language is that a continuing and vital role by the federal agency in the preparation of the EIS is still contemplated.
B.
The meaning of the amendment is further clarified by a review of its legislative history. The Supreme Court has admonished that it is essential for courts to “place the words of a statute in their proper context by resort to the legislative history,”
Because committee reports are entitled to greater weight in statutory construction than are discussions on the floor of the Senate or the House,
The report of the House Committee on Merchant Marine and Fisheries was the first one dealing with the matter.
As reported out of Committee, H.R. 3130 had provisions virtually identical to those now contained in section 102(2)(D) of NEPA. “The purpose of the bill,” the Committee wrote, “is to clarify the application” of NEPA to projects in which the state
Summarizing its understanding of the bill, the House Committee used the following forceful language:
[The bill] does not sanction a “rubber stamp” approach to Federal responsibilities, nor does it allow Federal functionaries to sidestep the other responsibilities placed upon them by law including, but not limited to, NEPA. What it does is to encourage adequate inputs of information by those best suited to develop that information, and to ensure that a continuing federal presence is nfiandated to fit that information into a rational and realistic planning and decision-making process. If enacted, H.R. 3130 would have this, and only this effect.22
The Senate Committee on Interior and Insular Affairs issued a report that made the same recommendations as the House Report.
Express approval was given by the Senate Committee to the language of the House Report rejecting the notion that the bill allowed a “rubber stamp” approach to the responsibilities of the federal agency.
Both the House Report and the Senate Report thus make clear the congressional intent to retain a considerable, though not exclusive, federal role in the development of the EIS.
Consideration of language offered to a congressional committee in the form of a bill, but rejected by the committee, often gives further insight into the meaning of the legislation actually enacted.
Primarily because of these two restrictions in the bill, it stayed in committee in the Senate and never came to a vote on the Senate floor.
The Senate debates on H.R. 3130 provide little aid in interpreting the bill. But the House debates indicate support by members from both sides of the aisle for retention of a strong federal role in the EIS, albeit with a modification of the standard that some Congressmen read in Conservation Society I. The author of H.R. 3130 specifically expressed a belief that the federal agency “must retain a large degree of the responsibility for the objectivity and completeness” of the EIS. In his mind, “close federal supervision ... is crucial.”
A reading of the debates and the two committee reports uniformly reinforces my understanding of the already unambiguous
C.
It is that set of conclusions, derived from a review of the legislation and its history, which in all deference leads me to a judgment different from that of the majority. I conclude that the federal involvement in the Route 7 EIS, as described in the factual findings made by the district court,
Among others, the following findings were made by the district court: (1) Arthur Goss, a planning engineer with the Vermont Highway Department (VHD), was the person “primarily responsible for the writing and preparation of the EIS . . .”
When faced with this factual record, I cannot conclude that the standard for federal involvement contained in the amendment to NEPA has been met. The FHWA did not guide VHD in the preparation of the EIS. It did not actively participate in the preparation of the EIS. There is no evidence that the FHWA’s review of the draft EIS written by the VHD was an independent and critical evaluation of the environmental considerations inhering in the Route 7 project. The federal role was not, in my mind, the substantial one envisioned by Congress.
I would therefore affirm that portion of the district court’s judgment which concerns the degree of federal involvement that NEPA requires in the preparation of the EIS, or, at most, remand the cause for further analysis by the district court in light of the amendment to NEPA.
. Conservation Society v. Secretary of Transportation, 508 F.2d 927 (2d Cir. 1974).
. Act of Aug. 9, 1975, Pub.L.No.94-83, 89 Stat. 424.
. Greene County Planning Bd. v. FPC, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972).
. NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C) (1970).
. 455 F.2d at 420 (footnote omitted).
. See 508 F.2d at 929 n. 3.
. Since the date of that decision, two other federal courts have adopted the Greene County rule. Swain v. Brinegar, 517 F.2d 766, 778-79 (7th Cir. 1975); Appalachian Mountain Club v. Brinegar, 394 F.Supp. 105, 120-21 (D.N.H. 1975). See also 1-291 Why? Ass’n v. Burns, 517 F.2d 1077, 1081 (2d Cir. 1975) (per curiam).
. 508 F.2d at 931-32.
. NEPA § 102(2)(D)(ii), (iii), Act of Aug. 9, 1975, Pub.L.No.94-83, 89 Stat. 424. Other aspects of the amendment are not relevant to the question before the Court.
. 44 U.S.L.W. 3199 (U.S. Oct. 6, 1975).
. Tidewater Oil Co. v. United States, 409 U.S. 151, 157, 93 S.Ct. 408, 413, 34 L.Ed.2d 375, 383 (1972).
. Cramer v. United States, 325 U.S. 1, 33, 65 S.Ct. 918, 934, 89 L.Ed. 1441, 1460 (1945).
. United States v. United Auto Workers, 352 U.S. 567, 585, 77 S.Ct. 529, 1 L.Ed.2d 563 (1957).
. H.R.Rep.No. 144, 94th Cong., 1st Sess. (1975) [hereinafter cited as House Report].
. Id. 1.
. Id. 2-3.
. Id. 1-2 (emphasis added). The same view was expressed throughout the report. See, e. g., id. 4.
. Id. 4-5.
. Id. 5.
. Id.
. Id. 6.
. Id. (emphasis in original).
. S.Rep.No.152, 94th Cong., 1st Sess. (1975) [hereinafter cited as Senate Report],
. Id. 2.
. Id. 3.
. Id. 10, quoting with approval House Report 6.
. Id.
. See Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974).
. Senate Report 5.
. Id. 7. The House Committee on Merchant Marine and Fisheries rejected the bill for the same reason. House Report 2-4. The floor debates also demonstrate the concern for the problem. 121 Cong.Rec. H 2996 (remarks of Mr. Shuster), H 2999, H 3002 (remarks of Mr. Leggett), H 3003-04 (remarks of Mrs. Sullivan), H 3004 (remarks of Mr. Forsythe), H 3005 (remarks of Mr. LaFalce) (April 21, 1975). Nonetheless, H.R. 3787 passed the House on April 21, 1975, by a vote of 275-99. Id. H 3009.
. Senate Report 8.
. 121 Cong.Rec. H 3006 (remarks of Mr. LaFalce) (April 21, 1975).
. Id. H 3007 (remarks of Mr. Leggett), H 3004 (remarks of Mr. Ruppe).
. Id. H 3004 (remarks of Mr. Forsythe). Similarly, the Chairman of the Committee stated on the floor that the bill dealt only with the extent of delegation to be permitted. Id. H 3003 (remarks of Mrs. Sullivan). The continuing importance of the federal role under the terms of H.R. 3130 was also emphasized by Russell W. Peterson, the Chairman of the Council on Environmental Quality, in a statement delivered before the Senate Committee. Senate Report 16.
. Cf. Justice Frankfurter’s reference to “the wag who said, when the legislative history is doubtful go to the statute.” Greenwood v. United States, 350 U.S. 366, 374, 76 S.Ct. 410, 415, 100 L.Ed. 412, 419 (1956).
. The findings of fact are not challenged here.
. Conservation Society v. Secretary of Transportation, 362 F.Supp. 627, 629 (D.Vt.1973).
. Id. at 629-30.
. Id. at 630 & n. 1.
. Id. at 632.