ELR Citation: ELR 20802
No(s). 72-2932 (9th Cir. Sep 27, 1974)

The Ninth Circuit Court of Appeals, sitting en banc, reverses and remands a lower court's refusal to order that a new public hearing must be held under 28 U.S.C. §128(a) before further actions can be taken toward constructing two portions of interstate freeways near Seattle. Section 128(a), as amended in 1970, requires that the Secretary of Transportation apply the law as it now reads before approving plans submitted by a state highway department for any project, whether novel or ongoing. Thus, before the Secretary can grant Plans, Specifications, and Estimates approval for the project in question, he must determine that a public hearing has been held at which the matters considered included those now specified in §128(a), and those specified in NEPA, particularly §§102(2)(C) and (D). On remand, the district court must determine whether the 1970 design hearing adequately fulfilled these requirements, or whether a new public hearing must be held. If the latter is the case, the project's environmental impact statement is to serve as a basis for the hearing, and the major focus must be on the total impact of the project as a whole, including whether it should be built at all. The court additionally points out that the project's EIS must be reviewed under the "observance of procedure required by law" standard of §706(2)(D) of the Administrative Procedure Act rather than the narrower "arbitrary and capricious" standard of §706(2)(A), and finds the doctrine of laches inapplicable to plaintiffs' §128(a) and NEPA claims. For earlier opinions of the circuit and district courts, see 1 ELR 20602, 2 ELR 20090, 2 ELR 20545, and 4 ELR 20083.

Counsel are listed at 4 ELR 20083.

Judges KOELSCH, ELY, and HUFSTEDLER do not concur in the portion of the opinion that holds that the district court may, on remand, consider whether there has already been substantial compliance with §128(a). They would hold that there has not been such compliance.