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Blue Ash, City of v. McLucas

Citation: 9 ELR 20318
No. No. 77-3300, 596 F.2d 709/12 ERC 2115/(6th Cir., 04/17/1979)

Affirming the district court's dismissal of the suit, the court holds that the National Environmental Policy Act (NEPA) does not create a cause of action to enforce commitments of third parties which are incorporated in the environmental impact statement (EIS) of the federal agency involved in the project. Plaintiff adopted resolutions, in conjunction with the City of Cincinnati as owner of the airport and the regional airport authority as operator of the airport, prohibiting jet aircraft from using the airport, at which federally funded improvements were made. The Federal Aviation Administration (FAA), which was not party to an agreement to prevent jet use, prepared an EIS for the project which stated that jet aircraft would be prohibited from using the airport. The agency subsequently published a notice allowing use of the airport by jet aircraft under certain circumstances. Plaintiff, while not challenging the adequacy of the EIS, relied upon NEPA to argue that the FAA must restrict all jet use of the airport, consistent with the resolutions reflected in the EIS. The court finds that NEPA does not create a cause of action to prevent an act by a federal agency which is contrary to the EIS. Furthermore, the FAA notice is not a "major federal action" which requires preparation of an EIS. Plaintiff failed to state a cognizable claim against defendants, the FAA and its administrator, but is not barred from pursuing a remedy in state court against the owner and the operator of the airport.

Counsel for Plaintiff
Robert T. McConaughy
Dinsmore, Shohl, Coates & Deupree
511 Walnut St., Cincinnati OH 45202
(513) 621-6747

Counsel for Defendants
Eloise E. Davies
Civil Division
Department of Justice, Washington DC 20530
(202) 633-3425

Gerald Kaminski, Ass't U.S. Attorney
U.S. Courthouse, 5th & Walnut Sts., Cincinnati OH 45202
(513) 684-3711

Sandra Dawahare
Federal Aviation Administration, Washington DC 20591
(202) 426-3621

Before: WEICK, CELEBREZZE and LIVELY, Circuit Judges.