United States of America
Environmental Impact Assessments
The defendants, the Department of Transportation and the Federal Highway Administration, were engaged in the initial steps of constructing the “Darien Gap Highway” trough Panama and Columbia, to link the Pan American Highway system of South America with the Inter-American Highway. In April 1974, well after the project was underway and well after the selection of the precise route of the highway had been made, the Federal Highway Administration (FHWA) prepared and circulated to certain parties a draft “Environmental Impact Assessment” relating to the construction of the highway. In December 1974 a final “Assessment” was issued, which was very similar to the draft. The Sierra Club and three other environmental organizations brought this action seeking to enjoin any further action on the project by FHWA, claiming that the preparation and issuance of the “Assessment” satisfied neither the procedural nor the substantive requirements of the National Environmental Policy Act (NEPA). They asked the Court for a preliminary injunction. Referring to the requirements for a preliminary injunction in the case of an alleged deficiency in compliance with NEPA requirements, the court emphasized that when federal statutes have been violated, it has been the longstanding rule that a court should not inquire into the traditional requirements for equitable relief. The Court found three principle deficiencies in FHWA’s compliance with the NEPA requirements. First, the Court found that FHWA failed to circulate its assessment to the Environmental Protection Agency (EPA) for its comments, as required by 42 U.S.C. Par. 1856h- 7 and 4332 (C). The environmental effects in question would have been within the expertise of EPA, and the agency might well have had valuable comments which would have affected FHWA’s judgment regarding the highway. Secondly, the “Assessment” of FHWA failed to adequately discuss the problems of the transmission of aftosa, or “foot-and-mouth” disease. In the Court’s view, the document did not discuss the environmental impact upon the United States of a possible breakdown of the control program against the transmission of the disease to North America. The third defect in the Assessment was its failure to adequately discuss possible alternatives to the route that had been chosen for the highway, as required by Par. 102 (2) (C) (iii) of NEPA, 42 U.S.C. Par. 4332 (C) (iii). It compared the chosen route to an alternative route only from the point of view of the engineering and cost and did not discuss the environmental impact of an alternative route. Finally, the Court held that the “Assessment” of the FHWA was not an adequate environmental impact statement as defined by NEPA. The decision to build the highway in the chosen route was made well before the Assessment was started, thus ignoring Congress’ intent that “decisions about federal actions be made only after responsible decision-makers had fully adverted to the environmental consequences of the actions, and had decided that the public benefits flowing from the actions outweighed their environmental costs.” The Court ordered that the Defendants were enjoined from taking any action in furtherance of construction of the “Darien Gap Highway” pending final hearing and disposition of this action, or unless and until the Defendants have taken all action necessary to comply fully with the requirements of NEPA.