Massachusetts Air Pollution and Noise Abatement Committee v. Brinegar

Civ. A. No. 74-2090-F (D. Mass. October 28, 1975)

Concluding that this injunctive challenge to flights into the United States of the Concorde SST is now moot, the court dismisses the amended complaint without prejudice. Previously, 4 ELR 20496, the First Circuit upheld this court's refusal to issue a temporary restraining order against Concorde demonstration flights into Boston's Logan Airport. Subsequently, plaintiffs amended the complaint to seek an injunction against all future Concorde flights into any United States airport until a complete environmental impact statement is filed under NEPA. As to flights into Boston's Logan Airport, the action is moot because plaintiffs have demonstrated "no reasonable expectation that the action sought to be enjoined will be repeated in the near future." As to flights into other airports, plaintiffs lack standing since substantially all of them reside in or are organizations whose memberships are concentrated in the Boston area. Dismissal is without prejudice with the understanding that, should future Concorde flights be scheduled into Logan, the case will be reactivated and defendants will be on notice to present a complete NEPA impact statement.

Counsel for Plaintiffs
Albert K. Butzel
Berle, Butzel & Kass
425 Park Ave.
New York NY 10022
(212) 838-2700

Counsel for Defendants
William A. Brown, Asst. U.S. Attorney
U.S. Courthouse
Post Office Square
Boston MA 02109
(617) 223-3258

[6 ELR 20214]

Freedman, J.:

ORDER

This matter is before the court on a motion by the defendants to dismiss as moot plaintiffs' Amended Complaint which challenges the introduction of the Concorde Supersonic Transport into Boston and other United States airports until such time as the [6 ELR 20215] Federal Aviation Administration has prepared a complete environmental impact statement ("EIS") in compliance with the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. ("NEPA"). After consideration of the pleadings, briefs, and applicable law, the court ORDERS that this motion be granted.

In June 1974, plaintiffs initiated an action seeking to enjoin several demonstration flights of the Concorde from landing at Logan Airport in Boston. This court denied plaintiffs' application for a temporary restraining order on the ground that the limited number of flights that were to take place did not require a complete environmental impact statement. The United States Court of Appeals for the First Circuit dismissed plaintiffs' appeal from that determination (Massachusetts Air Pollution and Noise Abatement Committee v. Brinegar, 499 F.2d 125, [4 ELR 20496] (1st Cir. 1974)). Subsequently, three Concorde flights landed in Boston in June. Plaintiffs thereafter filed an Amended Complaint seeking a declaration that the June 1974 flights had been illegal and that an injunction be issued against all future Concorde flights into any United States airport until a complete environmental impact statement has been prepared.

Dealing first with the question of flights into Logan Airport, it is well established that a suit for injunctive relief may be moot if the defendant can demonstrate that there is no reasonable expectation that the wrong sought to be enjoined will be repeated. United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953); Securities and Exchange Commission v. Culpepper, 270 F.2d 241, 249 (2d Cir. 1959); Treves v. Servel, Inc., 224 F. Supp. 773, 777 (S.D.N.Y. 1965). Although it is considered to be a heavy burden on the defendant's part, it must be remembered that the purpose of injunctive relief is to prevent future violations. United States v. W.T. Grant Co., supra, at 633. To obtain an injunction,

The moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive. United States v. W.T. Grant Co., supra, at 633.

There appear at this time to be no serious indications that additional Concorde flights will be made into Boston. The Draft EIS, issued in regard to requests to allow flights into New York and Washington, makes no mention of Boston. Plaintiffs argue that the Draft EIS, by stating that as many as 30 to 40 Concordes could be operating by 1985, implicitly shows that Logan Airport will be one of the locations to be included in any scheduled Concorde flights that might arise in the future. To further support their position, the plaintiffs make reference to two reports. The first, entitled British Airways Report, forecasts that in 1977-78, Concordes will be carrying approximately 37,000 passengers between the United Kingdom and Boston. The second, entitled Concorde Noise and also prepared by British Airways, estimates that in 1978, a Concorde will be taking off from Boston every day of the year.

While the plaintiffs' argument does indicate that future SST flights into Boston are a possibility, they offer nothing to show a reasonable expectation that the action sought to be enjoined will be repeated in the near future. The figures in the Draft EIS regarding the number of Concordes operating by 1985 actually refers to a "World-Wide Fleet Cumulative Total," and does not mean to reflect the number of airplanes of this type that might be flying into Boston or even into the entire United States. The two reports previously mentioned that made reference to future flights into Boston merely gave broad projections. It must be recognized that these reports were prepared by an airline that has significant interest in the success of commercial SST flights into the United States and around the world. While its projections as to the future Boston flights indicate its hopes of the Concorde's success, they cannot be considered concrete evidence of a reasonable expectation that such flights will be repeated in the near future. Indeed, the practicality and economic benefits of SST's still appear to be in question.

The court is of the opinion that no reasonable expectation exists that Concorde flights will be made into Boston in the near future, and that plaintiffs therefore have no cognizable interest at this time. Although such flights might take place at some later date, there is no evidence that they are to be scheduled. Consequently, there is no indication that declaratory or injunctive relief would be appropriate at this time. Further, there is no justification for keeping this case alive until such time as such flights are definitely planned.

Going beyond its discussion of Logan Airport, the court feels that the plaintiffs lack sufficient standing to request declaratory relief regarding further Concorde flights into United States airports outside this jurisdiction.The Supreme Court has stated that:

The emphasis in standing problems is on whether the party involing federal court jurisdiction has "a personal stake in the outcome of the controversy," [Baker v. Carr, 369 U.S. 186, 204 (1962)], and whether the dispute touches upon "the legal relations of parties having adverse legal interests." [Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-41 (1937)]. Flast v. Cohen, 392 U.S. 83,101 (1968).

The court in Flast further stated that, in deciding the issue of standing, it is "necessary to look to the substantive issues . . . to determine whether there is a logical nexus between the status asserted and the claim sought to be adjudicated." Flast v. Cohen, supra, at 102.

Plaintiffs in this action are all individuals or organizations situated in the Boston area. While it is possible that they could be adversely affected by Concorde flights into Logan Airport, there does not appear to be the sufficient nexus between their status and flights of SST's into airports in parts of the United States other than this jurisdiction to indicate that the plaintiffs have a sufficient stake in the controversy to obtain a judicial resolution.

Although one plaintiff, Citizens League Against the Sonic Boom ("CLASB"), is stated in the Amended Complaint to be a national organization with its principal office in Cambridge, Massachusetts, and to have members "residing in close proximity to Logan Airport and . . . to every other American airport" where Concorde flights would be able to land and take off, that such a connection to other localities in the United States could establish the requisite standing is tenuous at best. There would appear therefore to be no plaintiffs in this case who are individuals or conservationist organizations comprised of residents of other locations who would be adversely affected by possible Concorde flights. In Sierra Club v. Hickel, 433 F.2d 24 (9th Cir. 1970), the Ninth Circuit has stated the correct approach in such a case quite clearly:

No such person or organizations with a direct and obvious interest have joined as plaintiffs inthis action. The question of standing here must be decided from the facts in this action. We hold that they do not establish the interest necessary for that purpose.

Sierra Club v. Hickel, supra, at 33 (footnote omitted).

Based on the foregoing, the court concludes that the instant case is moot, and therefore it is ordered that this cause be dismissed without prejudice. This is done with the understanding that, should flights be scheduled into Boston in the future, on motion by the plaintiffs the case will be reactivated. At such time the defendants will be on notice to present a complete environmental impact statement in compliance with NEPA.

Accordingly, the motion to dismiss is granted.