A Charred Life 
The Second Battle for San Antonio
Two miles of expressway is having a harder time moving through the Alamo City than Santa Anna did.
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Justice William O. Douglas said he "did not believe we will have a more important case this term. No Federal question would be presented if Texas or San Antonio decided to turn these parklands into a biological desert. But when Congress helps finance a project like this freeway, it becomes a Federal project…and Congress have resolved that it will not allow Federal agencies or Federal funds to be used in a predatory manner."
By May of 1971, with five uninterrupted months of work behind them, the two contractors had finished 30 percent of the southern end and 45 percent of the north segment. Money was being eaten up at the rate of $14,000 a day, but another year or so would bring the ends to the edges of the two park systems. After that, the 12,000 foot gap would be bridged and the job completed. There were visions of mid-point ceremonies reminiscent of driving the golden spike when the first transcontinental railroad was completed, or of the U.S. Seventh Army and the Russians shaking hands across the Elbe. But these visions were clouded by the threat of renewed action on the part of the conservationists and their allies, the Sierra Club, the Community Design Group, the Save our City organization and spontaneously formed groups from Trinity University, whose campus the expressway would foul with noise and exhaust fumes.
A similar case developing in Memphis, Tennessee, involving Overton Park was decided in favor of conservation by the Supreme Court while San Antonio's own expressway forged ahead. The Overton decision provided the 5th Circuit Court in New Orleans with the required precedent, and on June 22, 1971, work on the North Expressway was again halted by court order. Judge Homer Thornberry, himself from Texas, handed down a 37 page decision that minced no words. Judge Thornberry said that "Secretary Volpe's approach to his responsibilities makes a joke of the feasible and prudent alternatives standard, [and] we not only decline to give such approach our imprimatur, we specifically declare it unlawful." He reminded the highwaymen that "the supremacy of Federal law has been recognized as a fundamental principle of our government since the birth of our Republic," and warned Texas that "The State may not subvert that principle by a mere change in bookkeeping or shifting funds from one project to another." Thornberry's indictment was sweeping and final.
This unexpected reversal caught adherents of the expressway off balance. "There's a states rights issue involved here," warned San Antonio Mayor John Gatti after the decision.
The septuagenarian Mayor Emeritus, Walter McAllister, one of the North Expressway's staunchest and most vociferous admirers, was "thoroughly completely shocked." Less than a year previously he had returned from a meeting with Volpe roseate and confident. He was willing "to bet anyone a thousand dollars that we'll get the expressway." Now the conservationists at home and the copperheads in New Orleans had done them in, politicians, contractors, automobile owners and all. Echoing a political sentiment not heard since shots were fired at Fort Sumter more than a hundred years previously, McAllister announced that he was "about ready for Texas to secede from the Union." The ex-Mayor found the Court of Appeals of the 5th Circuit "entirely out of order."
In a move that should have been made years earlier by the City of San Antonio, an independent organization was called in by the Federal government to study the entire North Expressway project. Gruen Associates, Inc., of Los Angeles, a major national engineering firm, published its 120-page study in June, 1971. The report states at the outset that the analysis and evaluation are weighted in favor of preservation of parklands, but in view of the National Environmental Protection Act and sentiment rising in the nation against the loss of open spaces, this attitude is not to be wondered at.
The major findings of the Gruen Report are detailed in page 55, but its significance was to document for the first time, in hard, practical terms, the precise impact of the Expressway on San Antonio's environment, right down to decibels of noise expected and a precise accounting of just what the Expressway would do to the major park and recreational areas.
Perhaps the most important aspect of the Gruen Report, however, is not its point-by-point dissection of the proposed Expressway, but in its clear analysis of alternate routes which would connect the same two points. Once the Gruen Report was published, the issue was no longer whether there should be a North Expressway or not, but rather, which route a North Expressway should take.
Gruen Associates listed seven possible alignments, all hooking up the two end segments whose construction was stopped more than 18 months ago. The most promising of these is the so-called Plan Green, which would have the expressway connect to the end segments in a nearly straight line, avoiding the deep swoop across the grounds of Incarnate Word and leaving the zoo and the Sunken Gardens untouched. Plan Green further avoids any impact on the Olmos Park picnic-creek area. Plan Green's outstanding design features lies in the fact that almost all of its length would be depressed below ground level, leaving only three-fifths of a mile visible in the central section. It would require 33.6 fewer acres of right-of-way, and would need only 19 acres of fill as opposed to 129 acres demanded by the adopted plan. The price for this alternative routing is another $5 million and the destruction of ten substantial homes in the City of Olmos Park.
Mayor Tom Powell of Olmos Park has reiterated an earlier stand, flatly rejecting Plan Green. During a large public meeting on August 12, 1972, he rose and said, "We, the citizens, do not consider it prudent to raze our homes and plough up our front lawns because of an unnecessary Expressway route bisecting our city...You are hereby again put on notice that if efforts persist to force an undesired expressway route through our city, we shall resist the same in courts and otherwise by every means at our disposal."
The State of Texas, in fact, has the right to force the expressway, through this, or any other, municipality if it comes to a showdown, but the State's attorney for the North Expressway, Sam McDaniel, says that the State does not choose to exercise the right against the clear wishes of the municipality of Olmos Park, regardless of how small it is compared with San Antonio as a whole. So it's a case of a small tail wagging a very substantial dog.
At about the same time the Gruen Report was released, a new Senate bill was introduced designed to circumvent the Protection Act, nullifying the key Section 4(f). Senate Bill S.3751 was introduced by Senator Lloyd Bentsen with the full backing of Senator John Tower. It calls for an amendment to the Federal Highway Act which would allow Texas to terminate its reliance on Federal aid on any particular highway program and to return any Federal funds remaining, whereupon "the particular project shall immediately cease to be a Federal-Aid project." The last lines of the bill conclude with this clincher: "Such an approval of termination by the Secretary shall not be subject to judicial review. This section is retroactive."
The intent of S.3751 is a transparent effort to overturn Judge Thornberry's injunction against the State of Texas completing the North Expressway with its own funds. The U.S. Department of Transportation calls the proposed amendment "unnecessary legislation," pointing out that there is nothing to prevent a state from returning Federal funds. "Indeed, the Department has encouraged such action on a number of occasions."
Senator James Buckley (R.-Conservative, N.Y.) protested at length in the Senate against any tampering with the Act. Passage of Senator Bentsen's bill, he said, would be "the first step in undermining on a case-to-case basis the environmental statutes which we now recognize as essential to safeguard the nation's environment...involving the Congress in endless rounds of specific adjudications over whether this highway or that dam or this canal should be exempted from compliance with Federal environmental statutes." Buckley added that "where the state has failed over a four-year period to consider alternatives clearly required by law I do not believe we should come to their rescue."
The Bentsen-Tower amendment comes up again during the current session of Congress, this time as Section 147 of the Federal Aid Highway Act. The Texas Highway Department has filed a new statement in Washington strongly supporting Section 147, pointing out such diverse facts as San Antonians are four times safer on existing expressways than they are on lesser roads, and that without the North Expressway the traffic count at the juncture of San Pedro and Hildebrand Avenues will jump from today's daily average of 27,000 to 51,000 by 1990—but with the North Expressway the 1990 count will be less than 36,000. Should the amendment pass, further litigation may well be unavoidable.
There is on the Texas lawbooks a statute, Article 5421.Q, similar to the Federal environmental law protecting parks and public lands. Conservationists are readying new suits based on this law against state funding of the expressway, should Senator Bentsen's bill pass. Privately, State attorneys doubt if this law, as it is now written, will help the anti-expressway people as much as they hope it will.
When the amendment goes to the floor of the Congress once again, legislators will have to answer the question posed by the Gruen report.
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