San Antonio Conservation Society v. Texas Highway Department/Dissent Black

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. 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, 91 S.Ct. 361, 27 L.Ed.2d 381, 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 together. 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, 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      added.)

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. Furthermore, it is simply not realistic to consider the construction of this expressway 'section by section' as the District Court and the Secretary of 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 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.