On remand by the Supreme Court of prior opinion in light of a new addition to a federal statute and a recent Supreme Court case.
Moore, Mulligan and Adams,*fn* Circuit Judges. Adams, Circuit Judge
On December 11, 1974 this court rendered its opinion in Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 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 (1975). 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, 455 F.2d 412 (2nd Cir.), cert. denied, 409 U.S. 849, 34 L. Ed. 2d 90, 93 S. Ct. 56 (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.*fn1
The legislative history of the enactment makes it clear that the Congress intended to overturn our decision in Conservation Society. 1975 U.S. Code Cong. & Admin. News 1797, quoting from Senate Rep. 94-52 at 2. Indeed in the District Court Judge Oakes had earlier suggested that delegation of authority to prepare the EIS to the responsible state agency was an issue that should be taken to Congress. 362 F. Supp. at 631. Under the law as amended the state agency may prepare the EIS provided the federal agency "furnishes guidance and participates in such preparation" and provided "the responsible Federal official independently evaluates such statement prior to its approval and adoption." Judge Oakes's findings in the District Court establish that the appropriate federal official "maintained frequent contact" with state officials in the preparation of the EIS, and was in verbal communication two or three times weekly with the state official primarily responsible for the preparation of the EIS; the FHWA division engineer undertook a field trip to examine the proposed route, during which environmental considerations were noted and discussed. 362 F. Supp. at 629. Although the state agency prepared the EIS it was in consultation with FHWA; the draft was submitted to FHWA at its offices in both Vermont and New York. Id. at 630. It was reviewed by the FHWA regional office, the division office, the federal planning engineer and the federal area engineer; it was circulated by the regional office to an interdisciplinary task force which made three suggestions, all of which were incorporated in the final EIS. The District Court concluded that the EIS was prepared by the local state agency "with communication from and cooperation of the regional FHWA, followed by review by an FHWA 'task force' at the regional level . . . ." Id. at 630.
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.*fn2
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 (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 superhighway. 362 F. Supp. at 636. The federal action being taken here relates only to the twenty-mile stretch between Bennington and Manchester in Vermont. The stretch is "admittedly a project with local utility," 508 F.2d at 935. Hence we see no irreversible or irretrievable commitment of federal funds for the entire corridor and under SCRAP no obligation for a corridor EIS. See Friends of the Earth v. Coleman, 513 F.2d 295, 299-300 (9th Cir. 1975); Trout Unlimited v. Morton, 509 F.2d 1276, 1283-85 (9th Cir. 1974).
In light of the remand and this discussion, we reverse our prior decision and reverse the judgment of the district court.
[THE CONSERVATION SOCIETY OF SOUTHERN VERMONT, INC., ET AL. v. SECRETARY OF TRANSPORTATION, ET AL., APPELLANTS IN No. 73-2629]
[THE VERMONT NATURAL RESOURCES COUNCIL, INC., ET AL., APPELLANTS v. CLAUDE S. BRINEGAR, ET AL., No. 74-2168]
Prior opinion and district court opinion both reversed.
ADAMS, Circuit Judge, dissenting in part.
There can be no doubt that the Court's previous decision in this matter (Conservation Society I)*fn1 was the impetus for the congressional action that resulted in the addition of a new section 102(2)(D) to the National Environmental Policy Act (NEPA).*fn2 But my understanding of the intent of the Congress, as it is expressed in the amendatory language and illuminated by the legislative history, diverges from that of the majority. In my view, the legislative purpose was to modify and clarify the rigid standard that Congress perceived Conservation Society I had established for federal involvement in the preparation and drafting of the environmental impact statement (EIS). The intent was not simply to overturn that ruling or to repudiate altogether the requirement of substantial federal control of the EIS. Because it is clear that ...