City of Boston v. Brinegar

No. 74-1255 (1st Cir. March 5, 1975)

The court dismisses as moot plaintiffs' appeal from a lower court's denial of preliminary injunctive relief against further construction of a runway project at Logan International Airport in Boston pending preparation of a NEPA impact statement. An EIS for the project has recently been prepared and issued by the United States Department of Transportation, and further construction has, in any event, been enjoined by a state court pending preparation of an environmental impact report in compliance with the Massachusetts Environmental Protection Act. The court also notes that DOT has published a status quo regulation limiting the actions an applicant for federal funds can take prior to completion of the final EIS and approval of the funding application. For the state Supreme Judicial Court's opinion affirming the injunction pending compliance with the state statute, see 5 ELR 20200.

Counsel for Plaintiffs
Peter Koff Asst. Corp. Counsel
City of Boston Law Dept.
One City Hall Square
Boston, Mass. 02201

Daniel D. Sullivan
Boston Legal Assistance Project
264 Meridian Street
East Boston, Mass. 02128

Counsel for Defendants
Edmund B. Clark
John J. Zimmerman
Department of Justice
Washington, D.C. 20530

James N. Gabriel U.S. Attorney
Raymond V. Picard Asst. U.S. Attorney
U.S. Courthouse
Post Office Square
Boston, Mass. 02109

John Silas Hopkins III
Paul B. Galvani
William F. McCarthy
John H. Mason
Ropes & Gray
225 Franklin Street
Boston, Mass. 02110

Neil L. Lynch
Massachusetts Port Authority
99 High Street
Boston, Mass. 02110

[5 ELR 20242]

Per Curiam

MEMORANDUM AND ORDER

Plaintiffs, consisting of the City of Boston, Boston residents, and a committee opposed to airport expansion, requested a preliminary injuction to halt runway construction work at Logan International Airport in Boston, and associated relief, under the National Environmental Protection Act, 42 U.S.C. § 4332(2)(C), and the Airport Development Aid Act, 49 U.S.C. §§ 1701-42. Defendants were the Massachusetts Port Authority, operator of Logan; Perini Corporation, its contractor; and the Secretary of Transportation and official of the Federal Aviation Administration. After an evidentiary hearing the district court denied preliminary relief, and this appeal followed.

Since argument of this appeal, substantially all work on the runways project has been halted by an injunction issued by the Massachusetts Superior Court under authority of the state environmental protection law, Mass. G.L. c. 30, §§ 61, 62. On February 5, 1975, in a comprehensive opinion, the Massachusetts Supreme Judicial Court affirmed both the injunction and the Superior Court's determination that work could not be carried out by the Port Authority in furtherance of the runways project until 60 days following publication of a final environmental impact report complying with state requirements. Secretary of Environmental Affairs v. Massachusetts Port Authority, 1975 Mass. Adv. Sheet (Feb. 5, 1975). Such a report has yet to be completed.

Early this year the United States Department of Transportation (DOT) issued a federal environmental impact statement in essence approving the runways project as environmentally sound. This impact statement has since been presented to the Council on Environmental Quality. Based on its review of the impact statement, DOT has approved (insofar as environmental considerations are concerned) the modified layout plan including the runway project and has granted initial authority for an offer of federal assistance.

The cessation of work on the runways project since this appeal has been under consideration, coupled now with the issuance of the federal environmental impact statement, effectively moots the central question arising on this appeal, namely whether the district court should have preliminarily enjoined work on the runways until a federal environmental impact statement was prepared and considered by DOT. Appellants also requested an order that the FAA adopt regulations requiring the Port Authority, as a fund applicant to maintain the status quo until an environmental impact statement had been issued and studied. This issue is moot to the extent such regulations would have related to relief against the Port Authority. The necessity of such regulations in the case of fund applicants in general is not an appropriate issue for this court to decide on an appeal from the denial of preliminary relief. Furthermore, since argument of this appeal, DOT has promulgated a regulation (as to which we express no opinion now) providing that implementing instructions issued by agencies under DOT, including the FAA, in connection with a loan or grant "shall limit the actions an applicant may take prior to completion and review of the final statement and approval of the application." Order 5610.1B, par. 4e(2), 39 Fed. Reg. 35234 (Sept. 30, 1974).

We are accordingly ordering dismissal of the appeal. We refrain from passing judgment on the correctness of the district court's action from which the appeal was taken, and in dismissing we do so without prejudice to any other issues concerning the adequacy of compliance with federal environmental requirements under NEPA and the Airport Development Aid Act.

The appeal is dismissed. No costs.