Citizens Airport Committee v. Brinegar

No. 74-CV-349 (N.D.N.Y. May 7, 1975)

NEPA becomes applicable to an airport development project which seeks federal funding at the point when federal funds are tentatively allocated to the project, rather than at the later point when a formal grant offer is made. This conclusion is supported by the language of NEPA, the CEQ guidelines for implementing the Act, the Department of Transportation and Federal Aviation Administration regulations regarding impact statement preparation, and by numerous highway cases in which NEPA has been held applicable at an early stage of the project. The court distinguishes and declines to follow the First Circuit's ruling in City of Boston v. Brinegar, holding instead that the airport development project became federalized and thus subject to NEPA when the FAA received the local government's request for federal aid. Plaintiff's allegations that defendants have failed to comply with NEPA by waiting until a formal grant offer is made to prepare and EIS thus constitutes a valid claim for relief, and the federal and local defendants' motion to dismiss must be denied. Summary judgment is granted dismissing the complaint against the state defendant, however, because no partnership concerning the project existed between the state and federal defendants.

Counsel for Plaintiff
Robert J. Kafin
Neil E. Needleman
Kafin & Needleman
115 Maple Street
Glens Falls, N.Y. 12807

Counsel for Defendants
James M. Sullivan, Jr. U.S. Attorney
Federal Post Office Building
Syracuse, N.Y. 13201

Richard K. Hughes Asst. U.S. Attorney
U.S. Courthouse & Post Office
Albany, N.Y. 12207

Louis J. Lefkowitz Attorney General
Kenneth J. Connally
Douglas S. Dales, Jr.
State Capitol
Albany, N.Y. 12224

Raymond F. Loucks County Attorney
George A. Maksail
620 State Street
Schenectady, N.Y. 12307

[5 ELR 20385]

Foley, J.

MEMORANDUM-DECISION and ORDER

The Citizens Airport Committee, a non-profit association of residents in the neighborhoods surrounding Schenectady County Airport ("Airport"), and other such residents individually seek to restrain all defendants from taking any further action in connection with the proposed development of the Airport until the federal defendants have complied with the requirements of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-47, and the Airport and Airway Development Act of 1970 ("AADA"), 49 U.S.C. §§ 1711-27. They also seek declaratory relief. Under NEPA and the AADA, there are certain prerequisites to federal participation in airport projects, including the preparation of an environmental impact statement ("EIS") or a negative declaration that no such statement is required. 42 U.S.C. § 4332(2)(C); 49 U.S.C. § 1716(c)(4); Hanly v. Mitchell, 460 F.2d 640 (2d Cir.), cert. denied, 409 U.S. 990 (1972). By letter dated January 29, 1974, from L. J. Cardinali, Chief of the Airports Division, the Federal Aviation Administration ("FAA") informed plaintiffs that it had determined that an EIS was not required for the Airport project, and that a negative declaration was being completed. To date, no negative declaration has been filed.

Schenectady County Airport is a general aviation airport located in a residential neighborhood on the outskirts of the City of Schenectady in the State of New York. Defendant County of Schenectady ("Defendant County"), as operator of the Airport, prepared a "master plan" for the future development of the Airport. The master plan is in accordance with the FAA's National Airport Systems Plan, 49 U.S.C. § 1712. In furtherance of the master plan, Defendant County, on August 30, 1972, applied to the State of New York for financial assistance in implementing the first stage of the plan. Included in Stage I were pavement rehabilitation, apron expansion, lighting improvements, and land acquisition. Of the estimated total cost of $1,796,000 for the proposed Stage I, an amount of $673,500 was solicited from the State. Subsequently, on or about February 8, 1973, Defendant County, as sponsor for the development project within the definition of 49 U.S.C. § 1711(14), filed an application with the FAA requesting a federal grant in the amount of $905,500 for Stage I. Of the sums requested, the State ultimately appropriated $674,000 and the FAA has tentatively allocated $714,750.

A tentative allocation is the third in a series of five steps involved in the processing of an application for federal financial assistance under the FAA's Airport Development Aid Program. Those steps are, namely: (1) the submission of a letter of intent by the [5 ELR 20386] sponsor; (2) the submission of the sponsor's request for aid; (3) FAA issuance of a tentative allocation of funds; (4) the sponsor's filing of a formal project application; and (5) FAA issuance of a grant offer together with acceptance thereof by the sponsor. 14 C.F.R. §§ 151.21-.25.

In the instant case, no grant offer had been extended nor had any formal project application been filed by the sponsor as of February 11, 1975.All defendants therefore contend that the Airport project is not yet a federal action within the meaning of NEPA. It is their contention that such a project becomes federalized only upon the extension of a grant offer by the FAA, and that since no such offer has been made, they are not bound to comply with NEPA. Defendants Brinegar and Butterfield ("federal defendants") have accordingly moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint for failure to state a claim upon which relief can be granted. The County of Schenectady has joined in the federal defendants' motion. Defendant Schuler ("state defendant") has moved for summary judgment dismissing the complaint on the grounds that (1) the complaint fails to state a claim upon which relief can be granted and (2) the court lacks jurisdiction of the subject matter of this action. It is these motions which are presently before the court.

Before deciding if it lacks jurisdiction over the subject matter of an action, this court must look to the complaint to see if it is drawn so as to claim a right to relief under the Constitution or laws of the United States. Bell v. Hood, 327 U.S. 678, 681 (1946). Where the complaint is so drawn, the suit must be entertained unless the alleged federal claim appears to be clearly immaterial or completely frivolous. Id. at 681-83. The reason for this is that the court must assume jurisdiction before it can decide whether the allegations state a cause of action on which the court can grant relief. Id. at 681-82.

The complaint presently in question charges that the federal statutes, NEPA and the AADA, have been violated, and it requests appropriate relief. Jurisdiction is alleged under an array of statutues, including: NEPA, 42 U.S.C. §§ 4321-47; the AADA, 49 U.S.C. §§ 1711-27; the Declaratory Judgments Act, 28 U.S.C. §§ 2201-02; the Administrative Procedure Act, 5 U.S.C. §§ 701-06; the federal question statute, 28 U.S.C. § 1331; mandamus, 28 U.S.C. § 1361; and the commerce clause, 28 U.S.C. § 1337. Federal courts have previously sustained jurisdiction, in the sense of reviewability of government action taken under or in violation of NEPA, under each of the jurisdictional bases pleaded by plaintiff. See 17 A.L.R. Fed. § 7 (1973). Since this case arises under the federal statutes, NEPA and the AADA, and plaintiffs have alleged in good faith that the amount in controversy exceeds $10,000 exclusive of interest and costs, I find jurisdiction to be proper under 28 U.S.C. § 1331. Accord, Town of Groton v. Laird, 353 F. Supp. 344, 348 (D. Conn. 1972); Nolop v. Volpe, 333 F. Supp. 1364, 1366 (D.S.D. 1971). It is therefore unnecessary to determine whether any of the remaining statutes invoked by plaintiffs would constitute an independent basis for jurisdiction.

All defendants contend that plaintiffs's complaint setting forth four separate claims for relief should be dismissed for failure to state any viable federal claim. They urge that NEPA's environmental policies need not be heeded until such time as the FAA makes a grant offer to the sponsor of the particular airport development project and therefore they are under no present obligation to follow its statutory requirements. I disagree.

NEPA requires every federal agency to prepare an environmental impact statement for inclusion in "every recommendation or report on proposals for . . . major federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) (emphasis added). Section 1716(4). "Actions" of federal agencies, as defined in the Council on Environmental Quality's guidelines for implementing NEPA, 38 Fed. Reg. 20553 P5(a)(ii) (1973), and the Department of Transportation's ("DOT") Order 5610.1A, include "Projects . . . supported in whole or in part through Federal contracts, grants, subsidies, loans, or other forms of funding assistance . . . ." Under the interim guidelines for processing airport development actions affecting the environment, DOT Order 5050.2, Paragraph 5, captioned "Action", reads as follows: "Every airport development action potentially involving federal financial aid falls within the purview of both the Airport Act and the Environmental Act." (emphasis added). All airport offices are therein instructed to follow the procedural guidance set forth in the order "in all actions involving and relating to: (1) Receipt and processing of request for airport development aid under the Airport Act." DOT Order 5050.2A, which superseded DOT Order 5050.2 and which became effective on February 24, 1975, although not as explicit as its predecessor, likewise requires the preparation of an EIS prior to extension of a grant offer. Paragraph 80 states that "Project approval and issuance of the grant offer, therefore, follows review and approval of the EIS . . . ." Preparation of an EIS is required by DOT Order 1050.1A P8f "at the earliest point in time so that the analysis of the environmental effects and alternative courses of action are significant inputs to the final decision." FAA regulation, 14 C.F.R. § 152.45(9), prohibits the Secretary of Transportation from approving any project for construction or land acquisition unless "[t]he FAA has satisfied the requirements of the National Environmental Policy Act of 1969." Thus, the very wording of the principal statutes themselves, as well as the regulations promulgated thereunder, from my reading, recognize that NEPA applies to projects before any final federal commitment is made. The concept of NEPA is that the environment will be considered before a project is launched; that what will be assessed is a proposed action, not a fait accompli. NEPA was designed to cover nearly every form of significant federal activity, Chelsea Neighborhood Ass'ns v. United States Postal Service, Civil No. 75-6005 (2d Cir., filed April 30, 1975), and unless NEPA is found to apply at the onset of a project, its purpose will be thwarted because many of the environmental considerations may be foreclosed by the time the actual grant is made. See Conservation Society v. Secretary of Transportation, 508 F.2d 927, 936 (2d Cir. 1974). In my judgment, NEPA becomes applicable when federal funding is requested for an airport development project since that is the point at which the FAA becomes actively involved in reviewing that project. See Coggins, "Preparing an Environmental Lawsuit, Part I: Defining a Claim for Relief under the National Environmental Policy Act of 1969," 5 Environment L. Rev. 537, 554-55 (1974).

This holding is in accord with similar cases decided in regard to the scheme for federal-aid highways. Those cases have generally held that any highway project which may eventually entail the possible protection and assistance of the federal government falls within NEPA. Consequently, NEPA has been held applicable as early as location approval and even before federal aid has been requested and even though it may never actually be requested. Named Individual Members v. Texas Highway Dept., 446 F.2d 1013 (5th Cir. 1971), cert. denied, 406 U.S. 993 (1972); Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971); La Raza Unida v. Volpe, 337 F. Supp. 221 (N.D. Cal. 1971), cert denied, 409 U.S. 890 (1972), aff'd, 488 F.2d 559 (9th Cir. 1973); and their respective progeny.

As the court in City of Boston v. Volpe, 464 F.2d 254 (1st Cir. 1972), aptly noted, the airport development scheme differs from the highway-aid scheme in that the former contemplates a single decision to fund or not to fund a project whereas the latter is carried out in a number of discrete stages. Id. at 259. The varied nature of those two programs does not, however, preclude consideration of the highway cases in reaching a decision regarding an airport project. The highway cases generally pinpoint location approval as the time when an action becomes federalized for the purposes of NEPA. At location approval the sponsor has already manifested a tentative desire to obtain federal funding; upon submission of a request for federal aid for an airport development project that sponsor does likewise. The sponsor's decision to ensure the availability of federal funds is found to constitute sufficient federal involvement to require adherence to federal law. Neither the obtaining of location approval nor the submission of the request for aid commits the sponsor to proceed with the proposed construction or to use federal funds in that construction. Nor, on the other hand, does it commit the federal agency to supply the funds.

Although the First Circuit, in City of Boston v. Volpe, categorically rejected any analogy between federal involvement in the highway cases and federal involvement in the airport cases, it took the opportunity in the later case of Silva v. Romney, 473 F.2d 287 (1st Cir. 1973), to retract, at least in part, its position in that regard:

In City of Boston we noted the different planning and funding schemes in highway construction programs like that in Named Individual Members of San Antonio Conservation [5 ELR 20387] Society and the airport aid scheme and found the differences relevant in determining whether and when the aid recipient could be enjoined. While we are less sure now of the importance of those differences, we subscribe fully to the rationale of the highway cases to the effect that once the partnership stage has been reached between the federal and non-federal entities, all parties in a project are subject to injunctive process. (Citation omitted.)

Id. at 290 n.5.

It is important to note that the case of City of Boston v. Volpe, on which all defendants rely to support their position that the making of the grant offer is the point in time at which federal action occurs, involved the denial of a preliminary injunction against a state agency which had commenced an airport project on its own following a tentative allocation of federal funds. The court explicitly limited itself to the question whether, assuming the failure of a federal agency to follow statutorily-required procedures, an injunction should issue against the non-federal applicant for aid. That the action was already federal and thus within the purview of NEPA and the AADA was made clear by the court's statement that: "A project does not necessarily become federal at the point when an agency fails to follow mandated procedures — agencies may be subject to duties concerning a proposed federal action at a time when an applicant may not yet be enjoined from acting on its own." 464 F.2d at 257 (emphasis added). Although the court went on to hold that the non-federal defendants could not be enjoined since no grant agreement had been executed, that holding was, to my mind, greatly undermined by the subsequent decision rendered in Silva v. Romney, supra.

Defendants here also cite City of Boston v. Brinegar, 6 ERC 1961 (D. Mass. 1974). On its face that case appears to be nearly on all fours with the present case. However, after careful scrutiny, this court respectfully disagrees with the reasoning of that decision. In that case, plaintiffs sought injunctive relief against various state and federal entities until such time as an EIS was prepared for the airport development project under consideration. The court cited City of Boston v. Volpe for the proposition that "the construction of taxi-ways by the Authority did not become federal until the grant agreement for financial assistance was actually executed." Id. at 1965. What the court failed to note, I believe, was that City of Boston v. Volpe was concerned with the point at which a project becomes federal for the purposes of enjoining a non-federal entity because of a federal agency's lack of compliance with statutory procedures and not for the purposes of determining when a proposed action comes within the provisions of NEPA. The language in City of Boston v. Volpe to the effect that a federal agency may be subject to duties at a time when an applicant may not yet be enjoined from acting on its own was completely ignored. The court in City of Boston v. Brinegar recognized the impractical consequences its holding would create when it stated:

If the defendants persist in the present course, it may well be that the plaintiffs will suffer precisely the irreparable harm described. . . . If at some future time the FAA approves the grant of financial assistance, under the federal defendants' own guidelines, the airways project will become a major federal action substantially affecting the environment. By the time that the required EIS is prepared all of the environmentally significant decisions are likely to have been made. . . .

[E]ven though the timing of actual construction in relation to the grant application may eventually result in effective, if not deliberate frustration of the National Environmental Policy Act, the court has no present power to enjoin the construction of the runways project by the Authority.

6 ERC at 1965-66.

To my mind, the court in City of Boston v. Brinegar was not left powerless to prevent the congressional policies embodied in NEPA from being circumvented. Under the City of Boston v. Volpe, the court clearly has the power to enjoin federal defendants and, under the later decision in Silva v. Romney, the court was given the opportunity to reassess the holding in the City of Boston v. Volpe insofar as it related to the enjoining of non-federal defendants. Instead, the court chose to dismiss Silva v. Romney as "having no bearing on City of Boston v. Volpe" and to apply the limited holding of City of Boston v. Volpe to the federal defendants. I do not agree with the reasoning displayed in the case, nor am I bound by the decision.

The final case cited by defendants in support of their position is Town of New Windsor v. Ronan, Civil No. 71-3062 (S.D.N.Y., filed Oct. 13, 1974). That case is clearly distinguishable. There, the Metropolitan Transportation Authority, a local public body, had acquired land for an airport without seeking federal assistance. See id. at ii n.4: ". . . neither defendant MTA nor any other public agency has submitted an application for a development grant."

It is my finding then that the Airport project became federalized upon the FAA's receipt of Defendant County's request for federal aid. At that time, the federal defendants became subject to the mandates of NEPA. Plaintiffs' allegations that the federal defendants have failed to comply with NEPA's procedural requirements thus constitutes a valid claim for relief, and the federal defendants' motion to dismiss the complaint is hereby denied.

Left to be considered is the question whether the facts as set forth in the complaint could support a claim for relief against the state defendant and against the Defendant County. NEPA itself does not impose duties directly upon non-federal entities. However, it is well settled that non-federal parties may be enjoined pending a federal agency's compliance with NEPA where those non-federal parties have entered into a partnership or joint venture with the federal entity. Biderman v. Morton, 497 F.2d 1141, 1147 (2d Cir. 1974); Silva v. Romney, 473 F.2d 287 (1st Cir. 1973). It seems clear to me that the Defendant County, by voluntarily requesting federal aid for the development of its Airport, became a partner with the FAA in that endeavor. See La Raza Unida v. Volpe, supra. Whether injunctive relief is appropriate in the present circumstances is not a question to which the court must address itself at this time. For purposes of this motion, a finding that plaintiffs have alleged a set of facts which could possibly entitle them to relief is sufficient. In making such finding the court is obliged to view the pleadings liberally. See Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir. 1944). Having so viewed the complaint, I find that plaintiffs have asserted a claim which could potentially entitle them to federal relief against the Defendant County. Defendant County's motion to dismiss the complaint is hereby denied.

As for the state defendant, there are no allegations that New York State is intended to be a recipient of any of the federal funds requested by Defendant County for the improvement of its Airport nor is the state intended to be a directbeneficiary of those improvements. The state's only connection to this case is that, like the federal agency, it too is a putative benefactor for Defendant County's airport project. On the facts alleged, one could find that the County entered into partnerships with the federal defendants and with the state defendant; however, from the pleadings and supporting papers on the motions submitted herein, no partnership can be envisioned as existing between the state defendant and the federal defendants. Consequently, even assuming the lack of statutory compliance by the federal defendants, the nexus between them and the state defendant is insufficiently proximate to warrant restraint of the latter. Proetta v. Dent, 484 F.2d 1146, 1148 (2d Cir. 1973).

Before summary judgment can be granted in favor of the state defendant, however, plaintiffs' state claim against it must be disposed of Plaintiffs have alleged in paragraph 24 of their complaint that the state defendant, in accepting, reviewing and approving Defendant County's application for state aid, failed to comply with state regulations concerning applications for state monies, and specifically that the state defendant failed to adopt standards for the approval or disapproval of projects as required by § 3(3) of the New York Transportation Capital Facilities Development Act. Plaintiffs urge this court to exercise pendent jurisdiction over that claim. Pendent jurisdiction, under the doctrine set forth in United Mine Workers v. Gibbs, 383 U.S. 751 (1966), is discretionary. See also Rosado v. Wyman, 397 U.S. 397, 402-403 (1970). This court elects not to exercise that discretion for the reason that the federal and state claims, although they have a factual connection, are quite independent of one another. The federal claim concerns compliance with the federal environmental requirements imposed by NEPA and the AADA, while the state claim involves that state's internal regulations for processing applications for state aid. To my mind, the state claim could more properly be adjudicated in the state courts. See Kavit v. A.L. Stamm & Co., 491 F.2d 1176 (2d Cir. 1974); A.H. Emery [5 ELR 20388] Company v. Marcan Products Corporation, 389 F.2d 11, 20 (2d Cir. 1968); River v. Richmond Metro. Auth., 359 F. Supp. 611 (E.D. Va. 1973). Pendent jurisdiction over plaintiff's state claim is hereby denied and summary judgment is granted in favor of the state defendant.

In conclusion, the federal defendants' and Defendant County of Schenectady's motions to dismiss for failure to state a claim upon which relief can be granted are denied. Summary judgment is granted dismissing the complaint against the state defendant, Raymond T. Schuler.