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Noe v. Metropolitan Atlanta Rapid Transit Auth.

Citation: 11 ELR 20515
No. No. 80-7263, 644 F.2d 434/15 ERC 2098/(5th Cir., 05/04/1981) Aff'd

Affirming the district court's denial of relief, 10 ELR 20247, the Fifth Circuit Court of Appeals rules that appellant has no implied cause of action under the National Environmental Policy Act (NEPA) to obtain injunctive relief requiring appellees to maintain the noise and other environmental impacts of a subway construction project within the levels predicted within the environmental impact statement (EIS) prepared for the project. Following Supreme Court precedent governing judicial recognition of implied statutory causes of action, the court determines that (1) appellant is not a member of a class for whose especial benefit NEPA was enacted, (2) there is no indication that Congress intended to authorize private parties to enforce the provisions of EISs, (3) to allow such suits might disserve Congress' purposes, and (4) in essence, the suit is a nuisance action, i.e., one that would normally arise under state, not federal law. Thus, the district court properly dismissed the suit for lack of jurisdiction.

[The issues raised in this case are discussed in Comment, Enforcing the 'Commitments' Made in Impact Statements: A Proposed Passage Through a Thicket of Case Law, 10 ELR 10153 (1980) — Ed.]

Counsel for Appellant
Richard N. Hubert
Haas, Holland, Lipshutz, Levison & Gibert
2300 Harris Tower-Peachtree Center, 233 Peachtree St. NE, Atlanta GA 30303
(404) 688-2300

Counsel for Appellee Metropolitan Atlanta Rapid Transit Auth.
David G. Russell
Kutak, Rock & Huie
1200 Standard Federal Savings Bldg., Atlanta GA 30303
(404) 522-8700

Counsel for Federal Appellees
Curtis E. Anderson, Ass't U.S. Attorney
1800 R.B. Russel Fed. Bldg., 75 Spring St. SW, Atlanta GA 30303
(404) 221-6954

Jerry L. Jackson, A. Donald Mileur, Robert L. Klarquist; Anthony C. Liotta, Acting Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2772

Before FAY and VANCE, Circuit Judges and ALLGOOD*, District Judge.