400 U.S. 968 (1970)

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U.S. Supreme Court


400 U.S. 968

Named Individual Members of the SAN ANTONIO CONSERVATION SOCIETY
The TEXAS HIGHWAY DEPARTMENT et al., and the U.S. Department of Transportation.
No. 1101.

Supreme Court of the United States

December 21, 1970

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. 968 , 969

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, [400 U.S. 968 , 970]

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