Saunders v. Washingtion Metropolitan Area Transit Authority

No. 73-1798 (D.C. Cir. November 21, 1973)

The Washington Metropolitan Area Transit Authority's Board of Directors failed to give proper consideration to environmental and aesthetic factors when it prepared a segment of its mass transit plan. Although a NEPA impact statement was not required since this was not a major federal action, the Board's failure constitutes a violation of the WMATA Compact provision that the Board consider such factors in choosing the location of various segments of thd subway system. The case is therefore remanded and the Board directed to prepare a study of the impact on environmental and aesthetic amenities of the segment as currently proposed and of possible alternative alighments. In addition, the Board is ordered to conduct a public hearing after reasonable time for public scrutiny of the study has elapsed, in order to allow an opportunity for meaningful public evaluation and criticism.

Counsel for Plaintiffs
Joseph J. Saunders
3708 Yuma St., N.W.
Washington, D.C. 20016

Counsel for Defendant
Jordam S. Himmelfarb
950 L'Enfant Plaza, S.W.
Washington, D.C. 20024

[4 ELR 20001]

Per Curiam.

Memorandum

The court has concluded that the WMATA's Board of Directors failed to give proper consideration to environmental and aesthetic factors when it prepared that segment of its mass transit plan which extends under Yuma Street and Wisconsin Avenue from Connecticut Avenue to Fessenden Street (the "A-9a segment"). Consequently, the Board contravened Article VI, P14(c)(1) of the WMATA Compact, which provides, "The Board [of Directors,] in thepreparation, revision, alteration or amendment of a mass transit plan shall (1) consider data with respect to current and prospective conditions in the Zone, including, without limitation, . . . factors affecting environmental amenities and aesthetics . . . ."

The evidence cited by the Authority to demonstrate that the Board considered environmental factors consists of technical studies on how best to alleviate noise and vibration problems along the entire subway route. Brief for Appellee at 23-25. However, these studies related to general noise and vibration problems that would exist along any route chosen for the subway. None of these studies examined the relative problems associated with various potential routes. Therefore, in designating the route for the A-9a segment of the mass transit plan, the Authority's Board did not adequately consider the "environmental amenities and aesthetics" involved in locating the subway along that route as opposed to other potential routes. It considered only how to ameliorate selected environmental problems for the route that was chosen on the basis of comparing other, but not environmental, factors.

Furthermore, it is not clear that the Board considered the noise and vibration problems at the preparation stage, as required by the Compact. That the Board failed to give consideration to environmental factors when it prepared the plan containing the A-9a route is indicated by the WMATA Staff Report on the 9 November 1971 public hearing:

It is the acoustical consultant's responsibility to study each segment of Metro and make recommendations for noise and vibration control. As of this date, the consultant has not completed his study of this portion of the alignment. Preliminary indications are that the problems are not insurmountable and that noise and vibration can be effectively controlled and the potential problem can be alleviated. (Joint App. at 49.)

The Staff Report was dated 28 December 1971, only nine days before formal adoption by the Board of the plan containing the A-9a route.This was hardly the appropriate time for evaluating "preliminary indications" about the noise and vibration levels likely to be created by construction of the subway along that route.

The Compact charges the Board to consider such factors at the stage of choosing the location of various segments of the subway system. This requirement ensures that the Board will evaluate these important factors before the planning and implementation process has advanced so far that it has become impracticable to make changes in the proposed plan, even in the face of strong evidence that it will produce adverse environmental and aesthetic effects.

Another reason for early Board consideration of environmental and aesthetic factors is that it allows the Board to submit its assessment of those factors for public evaluation and criticism before a proposed plan becomes too frozen for public comment to affect it. In the case of the A-9 plan, the Board did not evaluate the relative environmental and aesthetic merits of the Yuma Street alignment. Consequently, affected members of the public, like the appellants, had no adequate opportunity to challenge the Board's choice of the Yuma Street route on environmental and aesthetic grounds. At the 9 November 1971 public hearing on the A-9a route, several witnesses apparently raised general concerns about noise and vibration problems that they anticipated would result from the subway system. Joint App. at 48. Witnesses also suggested several alternative alignments for the A-9a segment of the subway. Joint App. at 52-54. However, there is no indication in the record that the Authority's Board or staff considered the relative environmental or aesthetic merits of the proposed alternatives, and certainly no evidence that the public was afforded opportunity for comment on the Board's conclusions with respect to those alternatives.

In order to make the public hearing requirement of Article VI, P15 of the WMATA Compact meaningful, the Board must make public its assessment of the various factors considered in choosing a particular route alignment, and it must do so at a time that affords members of the public a reasonable opportunity to formulate comments and criticisms for presentation at the public hearing on the proposed alignment. We do not think it required that the Board prepare a formal environmental impact statement as mandated for "major Federal actions" by Section 102 of the National Environmental Policy Act, 42 U.S.C. § 4332 (1970). However, by the terms of the Compact the Board must publicize enough information about its evaluation of environmental and aesthetic factors to permit meaningful public evaluation and criticism.

The conclusions reached above lead us to make the following order:

(1) That the Board of Directors of the Washington Metropolitan Area Transit Authority, appellee, prepare a study of the relative impact on environmental and aesthetic amenities of the A-9a route in its current form (the Yuma Street alignment) and of the possible alternative alignments. Among the factors that the Board should consider in preparing its study are the effect of construction, during its progress, on the safety of children in the neighborhood and the long-term impact of the project on the character of the area of the proposed routes as residential areas. The Authority's staff and technical experts may, of course, be consulted in the preparation of the study, and the Board may utilize relevant data previously prepared and available.

(2) That a public hearing be conducted at which comments and criticisms of the Board's environmental and aesthetic study of the A-9a route and alternatives can be aired. The hearing shall be held after a reasonable time has been afforded for public scrutiny of the Board's study.

Remanded to the District Court for proceedings not inconsistent with this Memorandum and Order.