City of Boston v. Volpe

No. 71-2090-M (D. Mass. March 31, 1972)

Building an outer taxiway for Logan Airport in Boston, a local project, does not require the filing of an environmental impact statement by the Secretary of Transportation pursuant to the National Environmental Policy Act, since federal involvement is so limited. Under the Airport and Airway Development Act of 1970, 49 U.S.C. §§ 1711, et seq., the role of the federal government is strictly limited; it is a voluntary funding act and not a regulatory measure. Application for a preliminary injunction halting construction until a NEPA statement is filed is denied.

Counsel for Plaintiff
Peter Koff Assistant Corporation Counsel
One City Hall Square
Boston, Mass. 02201

Counsel for Defendant
Joseph L. Tauro United States Attorney
Terry Phillip Segal Assistant U.S. Attorney
Post Office & Court House
Boston, Mass.

[2 ELR 20169]

Murray, D.J.

The City of Boston (Boston) seeks a preliminary injunction against the Massachusetts Port Authority (MPA) from taking any further action in the construction of the outer taxiway project at Logan Airpirt, and from proceeding further with the development of that project. At the hearing, Boston diavowed any claim for preliminary relief against the federal defendants.

As grounds for the relief sought, Boston shows that MPA has applied to the federal defendants for a grant of federal funds to aid in the construction of the project, and, although certain steps have been taken by the federal defendants because of the pendency of that application, no environmental impact statement evaluating [2 ELR 20170] the outer taxiway project has been prepared or filed by the Secretary of the Department of Transportation (DOT). Boston contends that in the absence of the Secretary's environmental impact statement, MPA ought not be permitted to proceed in the construction of a project which threatens irreversible damage to environmental factors.

Before a preliminary injunction can issue, Boston must show not only that the court has jurisdiction of the case against MPA but that it has a reasonable probability of prevailing after a hearing of the merits of the case. Consequently, the court, without purporting to decide the issues finally, considers Boston's contentions in light of the statute and principles invoked.

The duty of the Secretary to prepare and file an environmental impact statement arises under 42 U.S.C. § 4332(2) (C) when he makes a recommendation or report on proposals for major federal actions significantly affecting the quality of the human environment. Admittedly, the duty of the Secretary has not arisen in the case of the outer taxiway project for Logan Airport, because he has not acted on the application of MPA for federal funds, and has made no recommendation, report or proposal for that project.

It is Boston's contention that the filing of the application by MPA for federal funds, and the steps taken by the federal defendants in light of the application, are sufficient to give this court jurisdiction to enjoin further action in furtherance of that project.

The outer taxiway project is not a federal project. It is one under the exclusive control of MPA, a Massachusetts state agency. The request for federal funds under the provisions of the Airport and Airway Development Act of 1970, 49 U.S.C. § 1711-27, to aid in the construction of the project, does not, by the terms of the Act, subject the construction of the project to federal control. By itsterms the Act is a voluntary funding act, and not a regulatory measure. It provides in § 1716(b), 49 U.S.C., that "[n]othing in this subchapter shall authorize the submission of a project application by . . . [any] public agency which is subject to the law of any State if the submission of the project application by . . . [the] public agency is prohibited by the law of that State".

There is nothing to show that the approval by the Secretary of Transportation as to his evaluation of the impact of the outer taxiway project on environmental factors is required before the project may be commenced or constructed. His approval is merely required for the grant of federal funds, but whether he will grant or withhold them is a matter reserved to his reasonable and sound discretion. Of course, in reaching that decision he may properly undertake appropriate studies, consult with state or local agencies, and make suggestions for their consideration. There is nothing to show, however, that the decision of the MPA has been controlled in any way by the Secretary or any federal officer concerning the time of commencement or carrying out of the outer taxiway project.

Moreover, Boston has not shown that the federal government has either exclusive control or has pre-empted the field of creating or maintaining the conditions under which man and nature can exist in productive harmony.

Congress has declared that it is the continuing responsibility of the federal government to promote and have regard for environmental factors as they may be involved in federal plans, functions and programs and in the utilization of federal resources. Congress has also declared it to be the continuing responsibility of the federal government, in cooperation with state and local governments, to use all practicable means and measures, including financial and technical assistance, to foster, promote and maintain environmental factors. But until the federal government becomes, or actually proposes to become, involved in major federal actions, the duty of federal officers under 42 U.S.C. § 4332(2) (C) appears not to arise.

In 42 U.S.C. § 4371(b) (2) the primary responsibility for implementing the national policy for the environment "rests with [the] State and local governments". This is consistent with recognition both under our dual system of government and as a practical matter that the impact on environmental factors affecting states or municipalities, of local projects not federally aided such as the Logan Airport outer taxiway, should be reserved to the states for remedial action through their own executive, legislative or judicial departments.

The court is not satisfied upon the showing made at the hearing and in its brief that Boston is likely to prevail on the merits of its claim after a full hearing.

Accordingly, the application for preliminary injunction is denied.