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

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 recommendation for

'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.' Section 102(2)(C).

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 areas.

Many including Senator Metcalf of Montana had sounded the alarm over the devastation caused by federal highways:

'Today the land is being covered by four and six lane     highways, supermarket parking lots, suburban high rise apartment buildings and lost to itself and to the      people alike.'

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. 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 poorly designed 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 5.

'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 segments; and he has not yet approved the middle section. It is said:

'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 approved.'

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.

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 consequences.

The legal questions posed by § 102(2)(C) include at least the following:

Should any piece of the park be destroyed to accommodate the freeway?

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 sanctuary?

Is not the ruination of a sanctuary created for urban people an 'irreversible and irretrievable' loss within the meaning of § 102(2)(C)?

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.

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, it becomes a federal project. See Wickard v. Filburn, 317 U.S. 111, 131, 63 S.Ct. 82, 87 L.Ed. 122; Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 2 L.Ed.2d 1313; Simkins v. Moses H. Cone Memorial Hosp., 4 Cir., 323 F.2d 959. 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 history leaves 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 present.

'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 environmental impact.'

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 Department 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      displacement.

' * *  * The experts have, by and large, done their job well,      but we must remember their job is 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 of urban sprawl, unsightly junk yards, billboards, and power      facilities that lower the amenities of the landscape.' Id.,      at 29069.

Thus there can be no doubt but that Congress intended the Act to apply to federally funded highways and the Department of Transportation.