-- Civil Rights Law, XLI Pa. Bar Assn. Quarterly 268-274 (March, 1970).
Finally, I note that no evidence exists in any of the aforementioned acts which would indicate a Congressional intent to preclude judicial review of administrative rulings and decisions on road projects, such as the improvement of Route 872 in this case. City of Chicago v. United States, 396 U.S. 162, 164, 90 S. Ct. 309, 24 L. Ed. 2d 340 (1969); Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967).
The Pennsylvania Secretary of Highways and the United States Secretary of Transportation have raised the equitable defense of laches in asserting that plaintiffs are not entitled to the injunctive relief sought. The plaintiffs object to the raising of this defense, contending that the defendants are estopped by their conduct from raising this defense. Of course, since the United States Secretary of Transportation was never a party to plaintiffs' prior contacts with the Secretary of Highways, it cannot be successfully maintained that he is estopped in any manner from raising the issue of laches. The estoppel question with respect to the Secretary of Highways need not be decided, however, in view of the following determination on the existence of laches.
Laches is determined in the light of all the existing circumstances and requires that the delay be unreasonable and cause prejudice to the adversary. Sobosle v. United States Steel Corp., 359 F.2d 7 (3d Cir. 1966). The mere lapse of time is not sufficient to constitute laches. Ritter v. Rohm & Haas Co., 271 F. Supp. 313 (S.D.N.Y. 1967). In the circumstances of this case, I cannot find with absolute certainty that the plaintiffs knowingly slept on their rights. Granted that suit was not begun by plaintiffs until ninety days after the awarding of the construction contracts, but this is not the kind of deliberate delay with which we are normally confronted in laches situations. Here, the Pennsylvania Environmental Council, Inc. was not incorporated as a non-profit corporation until January 30, 1970, and had its first organizational meeting on March 14, 1970. The present suit was instituted on March 31, 1970. Under these circumstances, there was no unreasonable delay on the part of the Pennsylvania Environmental Council, Inc. in bringing suit.
Moreover, the individual plaintiffs and the Allegheny Mountain Chapter of Trout Unlimited cannot absolutely be charged with unreasonable delay in bringing suit. The time delay, in fact, is considerably shortened when February 2, 1970, the first day of construction, is compared with the date of the institution of suit. Furthermore, there is simply no evidence of prejudice to the United States Secretary of Transportation or to the Secretary of Highways by whatever delay may have occurred in the filing of this suit. Accordingly, I conclude that the defense of laches cannot be sustained on the present record.
III. SOVEREIGN IMMUNITY OF PENNSYLVANIA SECRETARY OF HIGHWAYS
The situation with respect to defendant Bartlett is precisely the same as that faced by J. Burch McMorran, Commissioner of the Department of Transportation of the State of New York, in Citizens Committee for Hudson Valley v. Volpe, 297 F. Supp. 809 (S.D.N.Y. 1969). Both were named in their official capacities by conservationists and environmentalists challenging construction of the highways. As in that case, even though Bartlett is sued individually, relief can only realistically be granted against the State itself. In McMorran's case, the Court found that the Eleventh Amendment of the United States Constitution immunized him from suit since the State had not consented to suit or waived its sovereignty. For the reasons so well expressed by the Court in the Hudson Valley decision, I hold that plaintiffs are precluded from maintaining this action against Secretary Bartlett since it is in reality a suit against the Commonwealth of Pennsylvania to which it has not consented and which immunity it has not waived. Urbano v. Board of Managers, 415 F.2d 247 (3d Cir. 1969); Harris v. Pennsylvania Turnpike Commission, 410 F.2d 1332 (3d Cir. 1969); S.J. Groves & Sons Co. v. New Jersey Turnpike Authority, 268 F. Supp. 568 (D.N.J. 1967). It is immaterial whether or not the doctrine of sovereign immunity could be raised by the Commonwealth if the Federal Government brought suit against it for wrongful disbursement of federal funds since this situation was expressly provided for in Article III, § 2 of the United States Constitution. E. g., United States v. California, 297 U.S. 175, 56 S. Ct. 421, 80 L. Ed. 567 (1936). Any analogy to the present case is therefore inapposite.
It is argued by the contractors that since they are the instrumentalities of the Commonwealth in carrying out the road improvement of Route 872, they, too, are immune from suit under the doctrine of sovereign immunity. Reliance is placed on Valley Forge Gardens, Inc. v. James D. Morrissey, Inc., 385 Pa. 477, 123 A. 2d 888 (1956). It is significant in this regard that in the Valley Forge decision the Pennsylvania Supreme Court noted that a contractor may not plead the State's immunity from suit, but may only be relieved from liability to third persons if the work is performed in accordance with the plans and specifications of the State and not negligently or willfully done in a tortious manner. It is also worthwhile to note that the Third Circuit has recently reiterated that the question of whether an agency or instrumentality is the alter ego of the State and immune from suit under the Eleventh Amendment is a question of Federal and not State law. Harris v. Pennsylvania Turnpike Commission, supra, at n. 3. The Pennsylvania Supreme Court decision in Valley Forge Gardens, Inc. v. James D. Morrissey, Inc., supra, however, is entitled to more than passing notice, as the Urbano and Harris cases recognize. Plaintiffs have not cited any authority to the contrary and merely rely on the "federal question" doctrine to assert a claim against the contractors.
December 29, 1969, the date of the contract award, was the first occasion on which the defendant contractors became involved in the present dispute. They began work in the beginning of February, 1970, and had actually completed some grubbing and clearing of the land before suit was filed. There is no allegation that they are performing this work in any manner other than in accord with their contract with the State. As long as they do so, I perceive no substantial reason why they sould be deprived of sharing the immunity of the Commonwealth in accordance with the principles expressed by the Pennsylvania Supreme Court in Valley Forge Gardens, Inc. v. James D. Morrissey, Inc. supra, and by the United States Supreme Court in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18, 60 S. Ct. 413, 84 L. Ed. 554 (1940). Accordingly, I conclude that the contractors are immune from this suit as instrumentalities of the Commonwealth under the Eleventh Amendment.
IV. RETROACTIVITY OF THE ENVIRONMENTAL POLICY ACT OF 1969
The National Environmental Policy Act of 1969 was passed by the United States Senate on December 20, 1969, and the House of Representatives on December 22, 1969, and became effective on January 1, 1970. All of the planning for the improvement of Route 872 occurred prior to this time. The contract, in fact, was awarded on December 29, 1969. Thus, all that remained on January 1, 1970, was the actual construction of the improved Route 872. Should the National Environmental Policy Act of 1969 now be applied in a retroactive manner so as to hold the United States Secretary of Transportation to the principles enunciated therein?
"As the Court said in Union Pac. R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199, 34 S. Ct. 101, 102, 58 L. Ed. 179, 'the first rule of construction is that legislation must be considered as addressed to the future, not to the past * * * [and] a retrospective operation will not be given to a statute which interferes with antecedent rights * * * unless such be "the unequivocal and inflexible import of the terms, and the manifest intention of the legislature."'" Greene v. United States, 376 U.S. 149, 160, 84 S. Ct. 615, 621, 11 L. Ed. 2d 576 (1964). Plaintiffs rely on Texas Committee on Natural Resources v. United States, Civ. No. A-69-CA-119 (W.D. Tex., February 5, 1970), for the proposition that the National Environmental Policy Act of 1969 should be applied retroactively. In that case, the Court had occasion to discuss the Act while ruling on plaintiffs' motion for a stay order pending appeal to the Fifth Circuit Court of Appeals pursuant to Fed. R. App. P. 8(a). It is significant that the Court did not reach the issue of the retroactivity of the Act, but merely confined itself to deciding whether the application of the Act to the case before the Court would be a retroactive application. It was held that the stay should be granted since the plaintiffs had a reasonable chance of success on appeal in presenting the argument that the Federal Housing Administration may be able to comply with the Act since no money had yet been expended and since no construction had yet begun. In this case, construction has already begun, although it is conceded that the Federal Government has not paid out any money to the Commonwealth. Thus, in at least one respect, the present case is factually distinguishable from Texas Committee on Natural Resources v. United States, supra, and in no respect is that decision determinative of the retroactivity issue of the National Environmental Policy Act of 1969.
In my opinion, the most reasonable interpretation that can be given to the legislative history of the Act is that there is no manifest Congressional intention or unequivocal and inflexible import in the language used to indicate that the Act should be applied retroactively. See, 2 U.S. Code Cong. & Ad. News, pp. 2751-2773 (1969). Indeed, if the language of the Act favors any position, it most likely favors non-retroactivity. For instance, the use by Congress of the phrases "to use all practicable means and measures" and "to the fullest extent possible" in Sections 101 and 102 of the Act appears to indicate a moderate, flexible and pragmatic approach to the immediate application of the Act. These phrases are hardly of the type which would evidence a retroactive intent. Accordingly, I conclude that the National Environmental Policy Act of 1969 was not designed by Congress to be given retroactive application. Since the contract here in question was awarded and finalized prior to the Act's passage, no violation of the Act occurred on the part of the Secretary of Transportation.
V. THE APPLICATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT
Assuming arguendo, that retroactive application of the National Environmental Policy Act of 1969 is necessary and that the defense of Governmental Immunity is not applicable here, we will proceed to discuss this case on its merits. The Act, made effective January 1, 1970, declared:
"a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality." 42 U.S.C. § 4321 (Supp. I, 1970)