Brooks v. Volpe

350 F. Supp. 269, 4 ERC 1492, 2 Envtl. L. Rep. (Envtl. Law Inst.) 20704, 4 ERC (BNA) 1492, 1972 U.S. Dist. LEXIS 12467
CourtDistrict Court, W.D. Washington
DecidedAugust 4, 1972
Docket9144
StatusPublished
Cited by26 cases

This text of 350 F. Supp. 269 (Brooks v. Volpe) is published on Counsel Stack Legal Research, covering District Court, W.D. Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brooks v. Volpe, 350 F. Supp. 269, 4 ERC 1492, 2 Envtl. L. Rep. (Envtl. Law Inst.) 20704, 4 ERC (BNA) 1492, 1972 U.S. Dist. LEXIS 12467 (W.D. Wash. 1972).

Opinion

OPINION RE MOTION OF DEFENDANTS FOR ORDER OF COMPLIANCE

BEEKS, Chief Judge.

1. Facts and Procedural History

The highway project under consideration is a segment of 1-90, part of the national system of interstate and defense highways stretching from Seattle to Boston, and funded by 90% federal funds. 1 The project contemplates the addition of three lanes to an existing seven-lane highway through Snoqualmie Pass in the Cascade Mountain Range, about 45 miles east of Seattle. The project lies within the Snoqualmie National Forest, and will provide a major transportation route between Seattle, points on the east side of the Cascades, and several major skiing and recreational facilities near Snoqualmie Pass. Trees have already been cleared on a large part of the project, and grading has started; seven major structures are under way, $14 million of construction is under contract, and a substantial percentage of the work has been completed. 2

The complaint, filed August 18, 1970, alleges that defendants failed to comply with 23 U.S.C. § 138, and 42 U.S.C. §§ 4321 et seq. This court held that, since the highway would not physically traverse any portion of Denny Creek Campground, there would be no “use” of that land within the meaning of 23 U.S.C. § 138, and that 42 U.S.C. §§ 4321 et seq., which became effective January 1, 1970, was inapplicable to the 1967 location ap *273 proval. 3 The court of appeals reversed on both points, and remanded the case for further review. 4 Defendants have moved for an order of compliance, on the basis of two exhibits filed with the court at a hearing held June 12, 1972. 5 The motion is denied.

II. The Impact Statement

The National Environmental Policy Act of 1969 6 (NEPA) provides, in part:

§ 4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts
The Congress 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 this chapter, and (2) all agencies of the Federal Government shall—
(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have a [sic] impact on man’s environment;
(B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by subchapter II of this chapter, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations;
(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on-
(i) the environmental impact 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 implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;

(D) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources;
(E) recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to *274 initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment;
(F) make available to States, counties, municipalities, institutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment;
(G) initiate and utilize ecological information in the planning and development of resource-oriented projects ; and
(H) assist the Council on Environmental Quality established by subchapter II of this chapter. 7

There are essentially two functions served by the preparation and distribution of the impact statement described in § 4332(2)(C) supra; (1) to provide evidence that the decision-making process required by NEPA was in fact accomplished; and (2) to give the decision-makers who are removed from the initial decision sufficient data from which to make their own decisions. 8 The court’s only function is to see that agencies obey the Congressional command to assemble the necessary information, perceive and weigh the alternatives, and articulate in writing the reasons for the choices made. 9

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Bluebook (online)
350 F. Supp. 269, 4 ERC 1492, 2 Envtl. L. Rep. (Envtl. Law Inst.) 20704, 4 ERC (BNA) 1492, 1972 U.S. Dist. LEXIS 12467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-volpe-wawd-1972.