Certiorari denied in San Antonio Conservation Society v. Texas Highway Dept.

The possibility of an early Supreme Court interpretation of the National Environmental Policy Act was lost on December 21, 1970, when the Court denied without opinion the San Antonio Conservation Society's petition for certiorari before judgment and dissolved the Court's previously granted stay (Dec. 7, 1970) in San Antonio Conservation Society Members v. Texas Highway Dept., 1 ELR 20069 (U.S. Dec. 21, 1970). The case was originally presented to Justice Black (5th Cir. Justice) when the San Antonio Conservation Society moved for a stay of administrative proceedings pending appeal to the Fifth Circuit of the district court's (W.D. Tex.) grant of defendants' motion for summary judgment. Both the district court and the Fifth Circuit had denied without opinion motion for stay pending appeal. In the Supreme Court, petitioner sought extraordinary relief relying on the All Writs Act, 28 U.S.C. §1651, and the provision of the Administrative Procedures Act (APA) authorizing relief pending judicial review, 5 U.S.C. §705 (1 ELR 41001). The motion was referred to the Court by Justice Black. However, the Court preferred to treat motion as a motion for stay pending petition for certiorari before judgment by the Fifth Circuit, pursuant to 28 U.S.C. §1254. In these circumstances, on December 7, 1970, the Court granted the stay. Subsequently, the Petition for Certiorari Before Judgment was filed and denied and the stay dissolved, all without opinion.

Justices Black, Douglas, and Brennan dissented. The suit was brought to block the Secretary of Transportation's approval and funding of two portions of a six-lane expressway to be routed through a 250-acre public park in San Antonio, Texas. The agency decision in question raises a substantial issue under the Federal Aid Highway Act, 23 U.S.C. §138, which was intended to protect such parklands. This aspect of the case is similar to Citizens to Preserve Overton Park v. Volpe, 1 ELR 20053 (6th Cir. 1970), cert. granted, 39 U.S.L.W. 3256 (Dec. 7, 1970), discussed at 1 ELR 10001.