Rehearing Denied Feb. 22, 1971.
See 401 U.S. 926.
On petition for a writ of certiorari, before judgment, to the
United States Court of Appeals for the Fifth Circuit. The petition
for writ of certiorari is denied.
Mr. Justice BLACK, with whom Mr. Justice DOUGLAS and Mr. Justice
BRENNAN join, dissenting. This case disturbs me greatly. On
December 7, 1970, this Court stayed the construction of two
federally funded highways in order to save two public parks. One
park serves the people of Memphis, Tennessee. [Footnote 1
] The park in this case is for the rest
and recreation of the the people of San Antonio, Texas. Both cases
involve important and timely problems of interpretation of 138 of
the Federal Aid Highway Act, passed by Congress to stem the
destruction of our Nation's parks by highway builders. These cases
give this Court an opportunity to insure that lower courts and
certain federal agencies administer this vital environment-saving
legislation in the way that Congrees intended. The Tennessee case
is still scheduled for oral argument at the earliest possible
date-January 11, 1971. Yet, the Court now dissolves the stay
previously entered in the San Antonio case, 400 U.S. 961, and
denies certiorari. I respectfully dissent from these orders. The
San Antonio park has two golf courses, a zoo, a sunken garden, an
open air theater and many acres of open space, covered with trees,
flowers, and running brooks. It is a lovely place for people to
retreat from the frantic pace of bustling urban life to enjoy the
simple pleasures of open space, quiet solitude, and clean air. It
is a refuge for young and old alike-the kind of a park where a
family man can take his wife and children or lovers can while away
a sunny Sunday afternoon to-
Page 400 U.S.
gether. After today's decision, the people of San Antonio and
the birds and animals that make their home in the park will share
their quiet retreat with an ugly, smelly stream of traffic pouring
down a super six- lane 'North Expressway.' Trees, shrubs, and
flowers will be mown down. The cars will spew forth air and noise
pollution contaminating those acres not buried under concrete.
Mothers will grow anxious and desert the park lest their children
be crushed beneath the massive wheels of interstate trucks.
The San Antonio Conservation Society and its individual members
filed suit to block federal approval and funding of this
expressway. The United States District Court held that the
Secretary of Transportation and state officials were free to
proceed with federal funding and construction of two segments of
the road coming into the park from north and south. It retained
jurisdiction to review any later decision on the design and routing
of the connecting middle section, which had not been formally
approved by the Secretary.
In addition to substantial questions under the Federal Aid
Highway Act, 23 U.S.C. 138, this case involves the newly enacted
National Environmental Policy Act, Pub.L. 91-190, 83 Stat. 852. The
latter requires a detailed study of the probable effects before
approval of 'major Federal actions significantly affecting the
quality of the human environment.' 42 U.S.C. 4332(2)(C). Even the
respondent appears to concede that the decision to fund this
expressway is a 'major federal action' requiring careful study
because he has promised that a study will be made before the middle
section is approved. However, the approval of the two end segments
took place in August 1970, eight months after the effective date of
the Act. It is undisputed that no environmental study has been made
with respect to these two segments,
Page 400 U.S.
which themselves desecrate parklands and which make the
destruction of further parkland inevitable.
Section 138 of the Federal Aid Highway Act provides:
'It is hereby declared to be the
national policy that special effort should be made to preserve the
natural beauty of the countryside and public park and recreation
lands. ... [T]he Secretary shall not approve any program or project
which requires the use of any publicly owned land from a public
park, recreation area or wildlife and waterfowl refuge of national,
State or local significance as determined by the Federal, State or
local officials having jurisdiction thereof, ... as so determined
by such officials unless ( 1) there is no feasible and prudent
alternative to the use of such land, and (2) such program includes
all possible planning to minimize harm to such park ....' (Emphasis
Even the Secretary admits that he has failed to make formal
findings about feasible and prudent alternative routes. Respondents
have argued that formal findings are unnecessary. This seems an
unlikely reading of the Act because without findings it will be
difficult for courts to review the Secretary's determinations, and
the intent of Congress to protect parklands is likely to be
frustrated. [Footnote 2
Furthermore, it is simply not realistic to consider the
construction of this expressway 'section by section' as the
District Court and the Secretary of
Page 400 U.S.
Transportation have done here. Once construction is begun and
heavy investment made on the two end segments, the available
options for routing the middle segment are severely limited. In the
words of the Act alternatives for the middle segment which were
'feasible and prudent' will no longer be 'feasible' once the two
end segments are constructed.
In the last several years, Congress has enacted coordinated
legislation designed to protect our Nation's environment from
destruction by water pollution, air pollution, and noise pollution.
This legislation has come about in response to aroused citizens who
have awakened to the importance of a decent environment for our
Nation's well-being and our very survival. Section 138 of the
Federal Aid Highway Act and the National Environmental Policy Act
are two major parts of this broad plan. The former was designed to
prevent the systematic and thoughtless burial of public parks under
the concrete of federally funded highways. The implementation of
this legislation by the Department of Transportation is
disheartening. The Act prohibits the Secretary from approving
highway construction through parklands unless there is no 'feasible
and prudent' alternative. Congress has assigned a high value to
parks, trees, and clean air. Parks are not to be condemned and
taken in order to try to save a few dollars on a multi-million
dollar highway project. Congress was willing to sacrifice parks
only when there is 'no feasible alternative.' Yet the Secretary has
proceeded without formal findings to approve two segments of a
highway which devour parkland. And the two segments now approved
stand like gun barrels pointing into the heartland of the park. The
Secretary and his staff are not wholly inexperienced in highway
construction. They know full well the difficulty of preserving the
park's heartland once the barrels have been loaded and the guns
cocked. The efforts of our citizens and the
Page 400 U.S.
Congress to save our parklands and to preserve our environment
deserve a more hospitable reception and more faithful observance
than they have apparently found either in the Executive Branch, or
thus far, in the courts.
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice
BRENNAN concur, dissenting.
This case is here on a stay presented to Mr. Justice BLACK and
by him referred to the Court. We granted a stay pending
consideration of a petition for certiorari before judgment of the
Circuit Court of Appeals, which has now been filed. The Court
dissolves the stay and denies certiorari, all without any opinion.
I dissent. This is an important case that involves the construction
of 9.6 miles of an expressway through 250 acres of the Brackenridge
Basin-Olmos Basin parklands situated at the headwaters of the San
Antonio River within the city of San Antonio. It involves the
application of a new law-the National Environmental Policy Act (42
U.S.C. 4331), which was signed by the President on January 1, 1970.
The new Act applies by 102(2) to 'all agencies of the federal
government' and provides that such agencies shall include in every
'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.'
Page 400 U.S.
There can be no doubt that federal funding of a state highway
project is covered by the 1970 Act. The most controversial aspect
of the highway design and location is that it proposes to run a
massive elevated eight- and six-lane expressway through a park in
San Antonio. The Brackenridge- Olmos Basin parklands is a unique
park, recreational, and open spaces area. Specific land uses
include the original Brackenridge Park grant, the Sunken Gardens,
and adjacent outdoor amphitheater, the San Jacinto Park, the Alamo
Stadium, the San Antonio Zoo, the Olmos Basin picnic area, the
Franklin Fields, and numerous other parks, public and open space
Many including Senator Metcalf of Montana had sounded the alarm
over the devastation caused by federal highways:1
'Today the land is being covered by
four and six lane highways, supermarket parking lots, suburban
Page 400 U.S.
high rise apartment buildings and lost to itself and to the
Parks-the breathing space of urban centers-were part of the
concern of Congress, not only wilderness areas, rivers, lakes, and
other aspects of the biosphere. 2
The Senate Committee stated in its report:
'The inadequacy of present knowledge,
policies, and institutions is reflected in our Nation's history, in
our national attitudes, and in our contemporary life. We see
increasing evidence of this inadequacy all around us: haphazard
urban and suburban growth; crowding, congestion, and conditions
within our central cities which result in civil unrest and detract
from man's social and psychological well- being; the loss of
valuable open spaces; inconsistent and, often, incoherent rural and
urban land-use policies; critical air and water pollution problems;
diminishing recreational opportunity; continuing soil erosion; the
degradation of unique ecosystems; needless deforestation; the
decline and extinction of fish and wildlife species; faltering and
Page 400 U.S.
signed transportation systems; poor architectural design and
ugliness in public and private structures; rising levels of noise;
the continued proliferation of pesticides and chemicals without
adequate consideration of the consequences; radiation hazards;
thermal pollution; and increasingly ugly landscape cluttered with
billboards, powerlines, and junkyards; and many, many other
environmental quality problems.' S.Rep.No. 91-296, 91st Cong., 1st
Sess., p. 4. (Italics added.)
The report noted that environmental programs were administered
by 63 federal agencies located within 10 of the 13 departments, as
well as in 16 independent agencies. Id., at 6.
'Poor land-use policies and urban
decay' can no longer be deferred, the report stated. Id., at
'We no longer have the margins for
error that we once enjoyed. The ultimate issue posed by
shortsighted, conflicting, and often selfish demands and pressures
upon the finite resources of the earth are clear.' Id., at 5.
And so the Act was drafted 'to assure that all Federal agencies
plan and work toward meeting the challenge of a better
environment.' Id., at 9.
Yet in spite of this mandate embodied in 102(2)(C) the
Department of Transportation has made no findings on the impact of
this massive elevated freeway on the environment of San Antonio.
The Court does not tell us why none need be made.
On August 4, 1970, the State, after revising its plans, agreed
to the federal plan for the end segments of the projects. But we
are advised that it was not until August 13, 1970, that the
Secretary of Transportation approved the construction by Texas of
the two end seg-
Page 400 U.S.
ments; and he has not yet approved the middle section. It is
'The Secretary expressly reserved
final approval on the middle section because there is much parkland
contained in the middle section.
'As a matter of fact, one of the
primary reasons the Secretary has not approved the middle section
is due to the consideration of the views expressed by plaintiffs in
opposition to the proposed route the middle section will take
through the parklands.'
We were told on November 16, 1970 that there are 'at least four
(4) possible alternative routes on which the middle section could
be constructed to connect the two ends which the District Court has
That is to say, 11 months after the Environmental Policy Act
became effective, the gist of the location problem so far as the
park is concerned had not been resolved.
The Solicitor General contends that the two end segments were
approved in 1969. But the facts are that while Secretary Volpe gave
preliminary approval of these segments on December 23, 1969, he
withheld authorization of federal funds pending an agreement by the
State to study further the middle segment. As already stated, Texas
agreed to the end segments on August 4, 1970, and the Secretary
gave his 'unqualified approval' and authorization of them on August
13, 1970, long after the new Act became effective. Yet no findings
under the 1970 Act were made.
It seems obvious, moreover, that approval of the two end
segments has some effect on the alternatives for the middle
section. For once the expressway is split into segments and each
segment considered separately, the environmental impact of the
entire project will turn at least in part on the fact that the two
ends are already built.
Page 400 U.S.
The Solicitor General states: 'The Secretary could well approve
a route in the middle segment that would involve little or no use
of parklands, or substantially less than the proposed route
location now contemplates.'
Thus we have a fair indication that some of the park is going to
be a freeway regardless. Yet as I read the Act a federal highway
project 'significantly affecting' even an acre of park land cannot
be launched without a finding on the environmental
The legal questions posed by 102(2)(C) include at least the
Should any piece of the park be destroyed to accommodate the
How can end segments of a highway aimed at the heart of a park
be approved without appraising the dangers of drawing a dotted line
between the two segments?
How important is the park to the people of San Antonio? How many
use it? For what purposes? What wildlife does it embrace? To what
extent will a massive eight and six-lane highway decrease the value
of the park as a place of solitude or recreation?
What are the alternatives that would save the park completely?
Could a passage by way of tunnels be devised? Could the freeway be
rerouted so as to avoid the parklands completely and leave it as a
Is not the ruination of a sanctuary created for urban people an
'irreversible and irretrievable' loss within the meaning of
I do not think we will have a more important case this Term.
Congress has been moving with alarm against the perils of the
environment. One need not be an expert to realize how awful the
consequences are when urban sanctuaries are filled with structures,
paved with concrete or asphalt, and converted into thoroughfares of
high speed modern traffic.
Page 400 U.S.
Those are some of the things with which Congress was concerned
in the 1970 Act.
No federal question would, of course, be presented if Texas or
San Antonio decided to turn these parklands into a biological
desert. But when Congress helps finance a project like this
freeway,3 it becomes a federal project. See Wickard v. Filburn,
, 131; Ivanhoe Irrig. Dist. v. McCracken, 357 U.S.
, 295; Simkins v. Moses H. Cone Memorial Hosp., 4 Cir.,
. And if one thing is clear from the legislative history of
this 1970 Act, it is that Congress has resolved that it will not
allow federal agencies nor federal funds to be used in a predatory
manner so far as the environment is concerned. Congress has,
indeed, gone further and said that the Department of
Transportation, like other federal agencies, may no longer act as
engineers alone and design and construct freeways solely by
engineering standards. Congress has said that ecology has become
paramount and that nothing must be done by federal agencies which
does ecological harm when there are alternative albeit more
expensive, ways of achieving the result.
I would continue the stay, grant the petition for certiorari, 28
U.S. C. 1254(1), and let the bureaucracy know that 102(2)(C) is the
law of the land to be observed meticulously.
Much of the legislative history of the Act is a discussion of
air pollution, water pollution, and solid waste disposal. But when
specifics are mentioned highway problems are present. And the
mention of highway problems at every stage in the legislative
Page 400 U.S.
no doubt that the Department of Transportation's highway
programs are subject to the Act.
At the Senate Hearings on the Act, the Department was
represented by the Assistant Secretary for Urban Systems and
Environment. He immediately recognized the reason he was
'I think that perhaps the reason that
the Department of Transportation was asked to have a representative
here before your committee was because within the purview of the
Department of Transportation has lain in the past and will continue
to lie in the future many of the activities that, at least, are
most apparent to the people of the country in the field of
He talked about the views of those people who live in
metropolitan areas of the country. They have, he stated:
'a growing concern, though in most
instances it is not a deep knowledge perhaps of the scientific
implications ... as to what might happen to life itself in some of
the areas of which we are destroying our environment, it is
concerned with the things they see about them in their daily lives.
And in this area, I think, transportation and the activities of
transportation organizations have been one of those which they have
observed and which has created perhaps as much controversy and
concern as any other area of the State and Federal operations.'
Hearings before the Committee on Interior and Insular Affairs,
United States Senate, 91st Cong., 1st Sess., on S. 1075, S. 237,
and S. 1752, p. 76.
Included in the House Hearings is a letter from the Chairman of
the House Subcommittee considering the 1970 Act to the Chairman of
the President's Council on Environmental Quality which notes that
neither the De-
Page 400 U.S.
partment of Transportation nor the Department of Interior have
promulgated the procedures they will use under the Act. 'The fact
there has not been full compliance by these Departments disturbs me
greatly.' House Hearings, No. 91-32, p. 67 (1969). And before the
House Hearings were printed the Department of Transportation had
complied with the request and the Department's procedures under the
Act were printed with the House Hearings. Id., at 153-159.
The debates on the Act on the floors of both Houses were
relatively short, attesting in some measure to the popularity of
enacting an extensive environmental bill. Yet just as the Senate
and House Hearings had demonstrated that the Department of
Transportation was an integral part of the Federal Government's
creation of environmental problems, so, too, did the debates alert
one to the fact that highways caused environmental problems when
not approached from an ecological perspective. In the House only a
handful of speakers addressed the bill for any length of time and
all spoke in broad generalities. Rep. Pelly, a member of the
subcommittee which considered the Act, provided the focus on the
problems of highways.
'We have experts in the field of
transportation coping with the problem of moving people from one
city to another in the least possible time with the greatest degree
of safety. We have constructed a vast system of interstate highways
to accomplish this. Yet at the same time, we have created serious
problems of soil erosion, stream pollution, and urban
'... The experts have, by and large,
done their job well, but we must remember their job is
Page 400 U.S.
building highways, increasing our food production, preventing
floods and so on. Their primary concern is not with the quality of
our environment considered as a totality.' 115 Cong.Rec., 91st
Cong., 1st Sess., 26573 (1970).
The Senate debates were also brief and again often dealt largely
with the generalities of air and water pollution. Senator Allott, a
member of the committee which considered the Act, recognized this
and reminded his colleagues that more was involved.
'I think there is a little too much
of a tendency, probably not in the committees involved here, but on
the part of the public, to regard environment as involving only air
and water pollution ... the environment does not involve only water
and air; ... it involves noise-and we are all becoming acutely
conscious of this factor. More and more as time goes
on-environmental questions will also involve land distribution,
planning for the future, what kind of future cities we will plan,
and what we will do about the ghettos-for the ghettos are a part of
the environmental picture. ...' Id., at 29061.
Senator Jackson, chairman of the committee which considered the
Act, reviewed the legislative history of the Act for the benefit of
the other Senators. He stated that concepts and ideas were drawn
from the many other bills before Congress when the Senate Committee
considered the Act. These bills
'were directly concerned with
environmental issues, covering a broad area of interest-cleaning up
the Nation's rivers and better approaches to smog control,
improving the use of open space and prevention of disorderly
encroachment by super-highways, factories and other developments
... and the control
Page 400 U.S.
of urban sprawl, unsightly junk yards, billboards, and power
facilities that lower the amenities of the landscape.' Id., at
Thus there can be no doubt but that Congress intended the Act to
apply to federally funded highways and the Department of
See No. 1066,
Citizens to Preserve Overton Park, Inc. et al. v. Volpe, 400 U.S.
Secretary of Transportation now appears to recognize that written
findings should be made for highway grant-in-aid approvals and such
findings are now provided for by his own regulation, Dept.
Transportation Order 5610.1, issued October 7, 1970. But the
Secretary has not been willing to apply his regulation to this
case. In my view the regulation alone is sufficient reason to
reverse and remand for findings of fact. Cf. Thorpe v. Housing
Authority of City of Durham, 393 U.S. 268
Stanford University, April 9, 1969.
Senator Metcalf on January 24, 1963, spoke of the great need for
consideration of ecological factors before highway construction was
'When Congress adjourned last fall, I
decided to determine the extent to which highway construction was
threatening our streams and rivers. I sent questionnaires to fish
and game management officials in each of our 50 States. To date,
Mr. President, I have received responses from 46 States.
'The questionnaire consisted of 10
questions, one of which was: 'Are trout streams or other important
fishing streams or lakes adversely affected by highway construction
in your State?' Thirty-two of the forty- six States which have
responded to the questionnaire answered affirmatively, although
damage varies in seriousness from State to State.
'Perhaps more significant were the
responses to the question: 'Do you feel that additional legislation
at the Federal or State levels is necessary to bring about a
satisfactory degree of coordination of highway and wildlife
conservation interests and objectives in your State?' To this
question, Mr. President, fish and game management men in 37 States
replied, 'Yes.' Two States were undecided about the necessity for
legislation, and only seven see no need for action in this
'Mr. President, my questionnaire
revealed general agreement, among those most qualified to know,
that there is a need for legislation. This is not a partisan,
political issue; it is a conservation problem cutting across party
lines, as shown by responses to my questionnaire. Fish and game
officials working for Republican and Democratic State
administrations agreed there is a need for legislation to protect
fish, wildlife, and recreation resources from damage due to highway
'Our bill, Mr. President, provides a
method of meeting that need. I urge my colleagues to study this
problem as it relates to their own States. I hope this matter will
receive the attention of the Congress this year.' 109 Cong.Rec.
] For the
legislative history see the Appendix to this opinion.
Government is providing the funds for 50% of the cost of this