ELR Citation: ELR 20083
No(s). 72-2932 (9th Cir. Dec 7, 1973)

The Federal Aid Highway Act (23 U.S.C. §128(a)) requires that new location hearings be held for an ongoing freeway project which has not received construction approval since it is not certain that the costs of altering or abandoning the proposed location would outweigh the environmental benefits that might result from the hearings. The court upholds a lower court's decision that the impact statement for the project did not meet the requirements of NEPA under the "observance of procedure required by law" standard of §706(2)(D) of the Administrative Procedure Act. The court also affirms the district court's ruling that plaintiffs belatedly raised their claim that EIS preparation was improperly delegated to the state highway department by the Secretary of Transportation.

A concurrence argues that the proper test for determining whether new hearings should be held is whether construction has been approved, but noted that when applied to the facts of this case, both tests give the same result. For earlier opinions of the circuit court, see 1 ELR 20602 and 2 ELR 20090. For the district court's opinion, see 2 ELR 20545.

Counsel for Plaintiffs are listed at 2 ELR 20546.

Counsel for Intervenors-Appellants, Citizens Against Freeways
Roger M. Leed
Peter Leachaut
Jackson, Goldmark, Bender, Anderson, Whelan, Brotman & Leed
540 Central Building
Seattle, WA 98104

Counsel for Federal Defendants
Stan Pitkin U.S. Attorney
Albert E. Stephan Asst. U.S. Attorney
1012 U.S. Courthouse
Seattle, WA 98104

Robert B. Rutledge Regional Counsel
Federal Highway Administration
222 S.W. Morrison
Portland, OR 97204

Morton Hollander
Stephen F. Eilperin
Department of Justice
Room 3643
Washington, DC 20530

Counsel for State Defendants
Slade Gorton Attorney General
Thomas R. Garlington Asst. Attorney General
Fifth Floor
Highway Licenses Building
Olympia, WA 98504