American Public Transit Association v. Goldschmidt

No. 79-1697 (485 F. Supp. 811) (D.D.C. February 7, 1980)

ELR Digest

The court invalidates regulations issued by the Secretary of Transportation intended to provide handicapped persons with equal access to mass trainsit vehicles and facilities. Initially, the court finds that the regulations are within the Secretary's statutory authority and that the rule-making record on which the regulations are based shows that technical and economic questions were considered fully and fairly. The failure to prepare an environmental impact statement (EIS), however, constitutes a violation of the National Environmental Policy Act (NENVIRONMENTAL PROCTECTION AGENCY). By requiring hundreds of municipal transit systems to undergo extensive physical modifications as well as operational changes, the regulations will have environmental effects sufficiently significant and geographically dispersed to require preparation of a programmatic EIS. Additionally, the court declares inadequate a six-page negativedeclaration prepared by the Department of Transportation, finding that it fails to take a hard look at the relevant environmental concerns. Notwithstanding the existence of a statutory violation, the court finds that the equities favor withholding injunctive relief against implementation of the regulations while programmatic and site-specific EISs are prepared

The full text of the opinion is available from ELR (28 pp. $3.75, ELR Order No. C-1217). That portion of the opinion addressing defendants' compliance with NENVIRONMENTAL PROCTECTION AGENCY is excerpted below.

OBERDORFER, District Judge.

* * *

Plaintiffs have alleged that DOT violated the National Environmental Policy Act ("NENVIRONMENTAL PROCTECTION AGENCY"), 42 U.S.C. § 4332 (1976), by failing adequately to consider the possible environmental consequences of the final regulations. NENVIRONMENTAL PROCTECTION AGENCY states that

The Congress authorizes and directs that, to the fullest extent possible . . . all agencies of the Federal Government shall —

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Plaintiffs have asserted that an environmental impact statement ("EIS") is necessary; alternatively, they have challenged the adequacy of the six-page "Final Negative Declaration" prepared by the Department to accompany the final rule. See Defendants' Exhibit 14. Defendants conceded at oral argument that compliance with the mass transit regulations will necessitate many activities by local authorities that will require site-specific environmental impact statements, but maintained that no "national" or "programmatic" EIS is required. Plaintiffs complain that there will be cumulative or synergistic effects from the many activities nationwide that will not adequately be accounted for in the individual EIS's, or at least will not be accounted for early enough to allow any meaningful modification of the regulatory scheme effected as conditions to grants.

Under NENVIRONMENTAL PROCTECTION AGENCY, there are two major questions to be resolved in determining whether an EIS must be prepared in accordance with section 4332(C). The first is whether there is a "recommendation or report" on a "proposa[l] for legislation [or] other major Federal actio[n]." The key issue here is whether a given federal action is a "major Federal action" within the meaning of the statute. If there is no major Federal action, section 4332(C) does not apply and there need be no EIS. If there is a major Federal action, however, a second question must be resolved: whether the action is one "significantly affecting the quality of the human environment." If it does not "significantly affec[t]" the environment, as EIS is not required.

Defendants apparently contend both that adoption of the DOT regulations is not a "major Federal action" and that it is not an action "significantly affecting the quality of the human environment." Defendants cite the Supreme Court's decision in Kleppe v. Sierra Club, 427 U.S. 390, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1976), in support of their position and assert that it is "controlling" as to the environmental issues in this case.⁴⁰ Kleppe is an important guide, but it does not support the defendant. In fact, the decision in Kleppe and the undisputed acceptance there of a nationwide EIS is a firm precedent for a decision requiring a nationwide EIS here.

In Kleppe, the Department of Interior had prepared local environmental impact statements, and, of particular importance here, had also prepared an environmental impact statement about the effects of the questioned program nationwide. Several environmental groups nevertheless brought suit to prevent various federal agencies from allowing development of coal reserves on federal land in a region identified as the "Northern Great Plains region" without the preparation of a regional "comprehensive environmental impact statement." 427 U.S. at 395, 96 S. Ct. at 2723. The Supreme Court, while accepting as given the nationwide EIS, held that no regional EIS was required, because there was no regionwide "proposal . . . for major federal action" within the meaning of NENVIRONMENTAL PROCTECTION AGENCY: there was no overall plan for regional development. Rather, the Court found, "all proposals are for actions either local or national in scope." Id. at 399, 96 S. Ct. at 2725 (emphasis supplied).

In light of Kleppe, there can be no dispute that the DOT regulations at issue here constitute a "proposal . . . for major federal action" of nationwide scope. See also Defenders of Wildlife v. Andrus, __ U.S. App. D.C. __ at __, __, __ F.2d at __, __, No. 79-1410, (D.C.Cir. February 5, 1980). In fact the Department's Final Negative Declaration implicitly recognizes that adoption of the regulations is "major federal action." Thus, NENVIRONMENTAL PROCTECTION AGENCY requires the preparation of an enviromental impact statement unless the regulations do not "significantly affec[t] the quality of the human environment." 42 U.S.C. § 4332(2)(C) (1976).

Defendants concede that the regulations will require many actions by transit authorities all across the country which will, individually, significantly affect the environment and so require an EIS with respect to each project. The defendant maintains, however, that the national action — adoption of the regulations — will not significantly affect the environment nationwide. It argues that the individual, site-specific EIS's prepared by local authorities will adequately account for the environmental consequences of the activities affected by the regulations and need not be supplemented with a national EIS.

The defendants' position is untenable. A regulatory program requiring hundreds or perhaps thousands of actions each "significantly affecting the . . . environment" must itselfbe regarded as "significantly affecting the . . . environment" within the meaning of the statute. The fact that numerous individual EIS's will be required for many particular projects initiated pursuant to this national program does not diminish its potential environmental effect nationwide; rather, it attests to it. Moreover, it seems obvious that in addition to what is conceded this program may have a cumulative effect which is greater than the sum of its individual effects. The program will involve expenditures in the billions and affect tens of thousands of vehicles and millions of passengers traveling more than 5.8 billion miles every year in hundreds of large and small communities nationwide. The environmental impact of the single decision to require lifts on urban buses will increase the dwell time of each in an as yet inadequately measured dimension and with as yet uncalculated effects on, for example, fuel requirements, vehicle emissions, and traffic congestion.

The conclusion that the DOT program will significantly affect the environment is consistent with the supported by the decision in Kleppe. As noted, the agency in Kleppe had in fact prepared a "Coal Programmatic EIS" to accompany the new national leasing program. Id. at 398, 96 S. Ct. at 2724. The Court noted that

the federal petitioners agreed at oral argument that § 102(2)(C) required the Coal Programmatic EIS that was prepared in tandem with the new national coal-leasing program . . . . Their admission is well made, for the new leasing program is a coherent plan of national scope, and its adoption surely has significant environmental consequences.

Id. at 400, 96 S. Ct. at 2725-26. Thus, the Kleppe Court made clear that the national EIS that had to be prepared was in addition to the impact statements that might be required for particular proposed actions at the local level. Id. at 399-400, 96 S. Ct. at 2725.⁴¹

The DOT regulatory scheme here at issue does not differ significantly from the national coal-leasing program involved in Kleppe with respect to whether a national EIS is required. These regulations, like those in Kleppe, represent "a coherent plan of national scope [whose] adoption surely [will] ha[ve] significant environmental consequences." 427 U.S. at 400, 96 S. Ct. at 2726.

At oral argument defendants suggested nonetheless that a national EIS was not required, at least at this time, because the environmental effects of the regulations are too difficult to predict and any attempt to predict them would be highly "speculative." Defendants maintained that quantification and assessment of environmental effects would have to await individual, site-specific EIS's; presumably they argue in the alternative that even if a national EIS is required, the time for it is not yet ripe. Defendants' arguments are, however, somewhat disingenuous. DOT gave no indication in its Final Negative Declaration that it viewed the environmental effects as speculative and too difficult to predict or that it felt the time for an EIS was not yet ripe. Indeed, the Final Negative Declaration is necessarily premised on a DOT determination that the environmental effects of the regulations are presently susceptible to assessment. In any event, the Supreme Court's opinion in Kleppe puts the matter to rest. The Court there stated that

under the first sentence of § 102(2)(C) [of the National Environmental Policy Act] the moment at which an agency must have a final statement ready "is the time at which it makes a recommendation or report on a proposal for federal action." Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 320 [, 95 S. Ct. 2336, 2356, 45 L. Ed. 2d 191] . . . (1975) (emphasis in original).

427 U.S. at 405-06, 96 S. Ct. at 2728. As noted, there can be no dispute here that the DOT regulations represent a "recommendation or report on a proposal for federal action."

As our Court of Appeals has observed, one of the functions of a NENVIRONMENTAL PROCTECTION AGENCY statement is to indicate the extent to which the environmental effects are essentially unknown. It must be remembered that the basic thrust of an agency's responsibilities under NENVIRONMENTAL PROCTECTION AGENCY is to predict the environmental effects of proposed action before the action is taken and those effects fully known. Reasonable forecasting and speculation is thus implicit in NENVIRONMENTAL PROCTECTION AGENCY, and we must reject any attempt by agencies to shirk their responsibilities under NENVIRONMENTAL PROCTECTION AGENCY by labeling any and all discussion of future environmental effects as "crystal ball inquiry."

Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, 156 U.S. App. D.C. 395, 408, 481 F.2d 1079, 1092 (D.C. Cir. 1973). Moreover,

That the effects [of a program] will not begin to be felt for several years, perhaps over a decade, is not controlling, for the Act plainly contemplates consideration of "both the long- and short-range implications to man, his physical and social surroundings, and to nature, * * * in order to avoid to the fullest extent practicable undesirable consequences for the environment.

Id. 156 U.S. App. D.C. at 406, 481 F.2d at 1090 (quoting NENVIRONMENTAL PROCTECTION AGENCY Guidelines of the Council on Environmental Quality).

Drafting a national EIS at this time would not impose an unbearable burden on the agency. Although "an agency's duties to issue a statement . . . are not inherently flexible or discretionary . . . the statute admits of some degree of flexibility and agency discretion in determining the contents of impact statements." Id. 156 U.S. App. D.C. at 407, 481 F.2d at 1091. "The agency need not foresee the unforeseeable." Id. 156 U.S. App. D.C. at 408, 481 F.2d at 1092. To paraphrase the Court of Appeals, "Certainly NENVIRONMENTAL PROCTECTION AGENCY does not require the [Department] to forecast [the long-range effects of the DOT regulations] in the same detail or with the same degree of accuracy as would be required in a later site-specific EIS." Id. Rather,

if the [agency's] environmental survey is prepared and issued in accordance with NENVIRONMENTAL PROCTECTION AGENCY procedures, and if the [agency] makes a good faith effort in the survey to describe the reasonably foreseeable environmental impact of the program, alternatives to the program and their reasonably foreseeable environmental impact, and the irreversible and irretrievable commitment of resources the program involves . . . the survey [would] fully satisfy the requirements of section 102(2)(C). The resulting document may look very different from the impact statement the [agency] is used to issuing for particular [projects], but this . . should not be . . . an excuse for not complying with NENVIRONMENTAL PROCTECTION AGENCY at all.

156 U.S. App. D.C. at 408, 481 F.2d at 1092.

Even if there were uncertainty as to the need for an environmental impact statement in this case, DOT's Final Negative Declaration is an inadequate basis for a conclusion that none is required. The six-page Final Negative Declaration reveals that DOT did not take a sufficiently "hard look" at the environmental issues to satisfy the requirements of NENVIRONMENTAL PROCTECTION AGENCY. See Maryland-Nat'l Capital Park & Planning Comm'n. v. U.S. Postal Serv., 159 U.S. App. D.C. 158, 169, 487 F.2d 1029, 1040 (D.C.Cir. 1973). Most of the Declaration is simply a summary of the provisions of the regulations; only one and a half pages are devoted to potential environmental impacts. The declaration contains only two sentences addressing "noise," one sentence dealing with "air quality," two sentences addressing "land use and urban growth," and one sentence considering "other" effects. The statements are all conclusory and virtually devoid of supporting findings or data. The concluding sentence in the Declaration's section on potential environmental effects, for example, states that "the regulation is expected to have no significant environmental impact with respect to water quality, community disruption and relocation, wetlands and floodplains, or other environmental variables." The Declaration does not meaningfully discuss the issue of traffic congestion or "dwell time."⁴² This issue is only mentioned in the preamble to the regulations:

With respect to the argument that the use of lifts would greatly slow bus service, the Department is somewhat skeptical. While there may be some slowing of service in some circumstances, this problem is not likely to be of the scope or magnitude suggested . . . . Any regular delays of this kind can and should be worked into schedules in such a way that service disruptions or undue slowdowns of service will be minimal.

44 Fed.Reg. 31457 (May 31, 1979) (emphasis supplied). This kind of unquantified speculation is not an adequate basis on which to dismiss these potential environmental effects, especially in light of DOT's earlier though similarly conclusory and unsupported assertion that the regulations would actually reduce dwell time. See Defendants' Exhibit 11 (Final Negative Declaration accompanying Notice of Proposed Rulemaking) at 3.

Nor is there any other evidence in the record in this Court reflecting enough consideration of potential environmental effects in forming the regulations to justify defendants' decision to finesse NENVIRONMENTAL PROCTECTION AGENCY's requirements for Environmental Impact Statements about large-scale federal programs. Defendants' affidavit of George Pastor, offered to support the Negative Declaration, reveals that there was no systematic factual investigation of "dwell time," no quantification of estimated impacts, and no substantial and sufficiently extensive evidence underlying any conclusion that dwell time was of "insignificant" environmental impact. See also Affidavit of Martin Convisser.

Even if DOT had taken the requisite "hard look" at the potential environmental impacts of the regulations, however, its Final Negative Declaration would be an inadequate statement of reasons, under both NENVIRONMENTAL PROCTECTION AGENCY and the DOT regulations implementing NENVIRONMENTAL PROCTECTION AGENCY, supporting its conclusion that no environmental impact statement was necessary. DOT's regulations provide that

a negative declaration must include documentation sufficient to support the determination that the proposed action does not have a significant impact on the environment.

39 Fed.Reg. 35238 (September 30, 1974) (DOT Order 5610.1B). It is clear that such documentation is lacking in the Final Negative Declaration and is not provided de facto either in the administrative record or in the proceedings here.

VII

The Court has concluded that defendants are entitled to summary judgment with respect to plaintiffs' challenge to the validity of the regulations but that plaintiffs are entitled to summary judgment with respect to their claim that an environmental impact statement should have accompanied DOT's Final Regulations. The question remains as to what relief is appropriate.

In Kleppe v. Sierra Club, supra, the Supreme Court made clear that a determination that an EIS must accompany certain agency action does not automatically require an injunction against the agency action pending completion of the EIS.⁴³ The issue of the propriety of an injunction is rather a separate and further question; a balancing of equities must guide the decision as to whether to issue an injunction. See 427 U.S. at 407-08, 96 S. Ct. at 2729. The balance of equities in this case militates against a grant of injunctive relief. As defendants correctly point out, plaintiffs largely ignored their NENVIRONMENTAL PROCTECTION AGENCY claims at the preliminary injunction stage of this litigation; in any event, this Court found that plaintiffs were neither suffering from nor threatened with any irreparable injury. See Memorandum and Order of September 17, 1979. Plaintiffs still suffer no such threat. No particular project requiring a local EIS can go forward until that site-specific EIS has been completed.Under the regulations, the only major actions that transit authorities must take immediately are to acquire accessible buses and subway cars, if they decide to acquire any new vehicles at all, and to initiate compliance planning.

With respect to other provisions of the regulations, "recipients are not required to begin alterations to existing transit facilities until any waiver requests are considered and key stations have been identified in transition plans, which are not due until up to 18 months from the effective date of the regulations. 49 C.F.R. § 27.103. This delay provides ample time for the defendants to rectify any violation of NENVIRONMENTAL PROCTECTION AGENCY." Defendants' Reply Memorandum, filed September, 1979, at 28 n.19.

Although it is possible that DOT might as a result of its environmental assessment abandon its decisions to require accessible buses and subway cars, or that Congress would set aside the regulations or limit funding for the grants governed by them, the injury that would result to plaintiffs from such a reversal would not be irreparable: many unfilled orders could be modified,⁴⁴ and to the extent that this proved infeasible, plaintiffs' damages would, for aught that appears on this record, be quantifiable and compensable. In any event, plaintiffs potential injuries and the related threat to the public interest resulting from defendants' failure to consider the long range environmental consequences of the regulations are not imminent. Most important, perhaps, an administrative remedy and appropriate judicial review will remain available for any plaintiff threatened with irreparable injury. See pp. 817-818, supra.

In deciding whether to enjoin the DOT regulations pending completion of the EIS, the Court has, consistent with Kleppe, attempted carefully to consider the public interest at stake. If the Court proved mistaken in its conclusion that an environmental impact statement is necessary, a program with possibly millions of beneficiaries would have been seriously delayed, to their discomfort and irreparable detriment. Moreover, the DOT program is one of unusual magnitude, and is the focus of active consideration in Congress. If Congress determines that the implementation of the DOT regulations should be delayed or aborted because of a lack of sufficient information concerning their probable effects, (or for any other reason) it can easily do so. In fact, Congress has already prohibited the use of federal funds in fiscal 1980 to retrofit any existing rail systems, pending completion of the cost-benefit studies it has ordered. See Pub.L.96-131, 93 Stat. 1027, 1032 (1979); H.Rep. 96-272 (Committee on Appropriations), at 48. In view of this Congressional action, any injunction against such retrofitting would be redundant.

For these reasons, the Court has concluded that under the standards enunciated in Kleppe, the regulations should not be enjoined pending completion of the EIS. The Court will, however, retain jurisdiction, on an inactive basis, to entertain applications for relief by those plaintiffs justifiably dissatisfied with the administrative action (or inaction) on any petitions for waivers, exemptions, or extensions they have filed, and to reconsider the decision on the merits should any facts disclosed in the EIS so require.⁴⁵

ORDER AND JUDGMENT

Upon consideration of the cross-motions for summary judgment, the affidavits and exhibits in support thereof, the oral arguments thereon, and the entire record herein, including the record in respect to plaintiffs' motion for preliminary injunction, and for reasons set forth in the accompanying Memorandum, it is this 7th day of February, 1980, hereby

ORDERED: That plaintiffs' complaint against the defendant Secretary of Health, Education, and Welfare (now Health and Human Services) is DISMISSED for failure to state a claim upon which relief may be granted; and it is

FURTHER ORDERED, ADJUDGED AND DECLARED: That plaintiffs' motion for summary judgment as to the claim that the National Environmental Policy Act requires the remaining defendants to prepare an environmental impact statement to accompany Subpart E of the Department of Transportation regulations of May 31, 1979, 44 Fed.Reg. 31477-31481, is GRANTED; and it is

FURTHER ORDERED: That in all other respects defendants' motion for summary judgment is GRANTED and plaintiffs' motion is DENIED; and it is

FURTHER ORDERED: That defendant prepare and file an environmental impact statement on or before September 1, 1980, unless otherwise ordered by the Court; and it is

FURTHER ORDERED: That this Court will retain jurisdiction of this action, on an inactive status, to entertain applications for relief by those plaintiffs justifiably dissatisfied with the administrative action (or inaction) on any petitions for waivers, exemptions, or extensions they have filed with defendants, and to reconsider the decision on the merits should any facts disclosed in the prospective environmental impact statements so require.

40. See Defendants' Response to Plaintiffs' Supplemental Filing, filed October 22, 1979.

41. The reason for this should be evident. As the Court of Appeals has stated:

It would be a "mistake to attempt to freight . . . a single environmental report on a single facility" with the broader considerations necessarily involved in an impact statement on the overall program. The issues discussed in an analysis of the overall program would be quite different from those discussed in an analysis of a particular facility, and the relevant audiences, both in government and outside, would vary for each analysis.

Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission, 156 U.S. App. D.C. 395, 408-09, 481 F.2d 1079, 1092-93 (D.C.Cir. 1973).

42. See p. 821, supra.

43. 427 U.S. at 405, 96 S. Ct. at 2728.

44. See Memorandum and Order of September 17, 1979, Conclusions of Law P9.

45. Cf. Brown v. Califano, __ U.S. App. D.C. __ at __, __ F.2d __ at __, No. 78-1864 (D.C. Cir. Jan. 31, 1980) (Court affirms lower court rejection of facial challenge to anti-busing amendments and approves its retention of jurisdiction to allow challenges to amendments as applied).

Counsel for Plaintiffs
Barry J. Cutler, David R. Melincoff
O'Connor & Hannan
1747 Pennsylvania Ave. NW, Washington DC 20006
(202) 785-8700

Counsel for Defendants
Barbara L. Gordon, Paul Blandenstein
Civil Division
Department of Justice, Washington DC 20530
(202) 633-4776

Robert W. Batchelder
Urban Mass Transportation Administration
Department of Transportation, Washington DC 20590
(202) 426-4043

Counsel for Amicus Curiae American Coalition of Citizens with Disabilities
James J. Raggio
Public Interest Law Center of Philadelphia
1315 Walnut St., Philadelphia PA 19107
(215) 735-7200

Counsel for Amicus Curiae American Ass'n of State Highway and Transp. Officials
Charles A. Miller, Carolyn F. Corwin
Covington & Burling
888 16th St. NW, Washington DC 20006
(202) 452-6000

Oberdorfer, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]