Continued Action on Transportation and Environment, Inc. v. Adams

No. 78-133 (D.D.C. August 10, 1979)

The court issues a statement of the factual bases and legal rationales for previous orders granting defendants' motions to dismiss an action alleging that the transportation plans and planning process for the Washington, D.C. metropolitan area violate several federal laws. The court first rules that it lacks subject matter jurisdiction under § 304 of the Clean Air Act to consider plaintiffs' allegations because there is no claim that defendants have violated an emission standard or limitation. In addition, plaintiffs lack standing to obtain judicial review under the Administrative Procedure Act because their allegation of injury concerns harms undifferentiated from those borne by the public generally. These speculative injuries in the form of general environmental deterioration are not clearly traceable to the challenged transportation control plan, nor has it been shown that if plaintiffs prevail in this lawsuit they will be protected from such environmental degradation. Finally, the court rules that defendants' long-range transportation plan is not a proposal for major federal action under § 102(2)(C) of the National Environmental Policy Act and that preparation of an environmental impact statement was thus not required in conjunction with its adoption.

Counsel for Plaintiffs
David G. Burwell
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6800

Counsel for Defendants
John A. Terry, Ass't U.S. Attorney
Room 3600-E, U.S. Courthouse
3d & Constitution Ave. NW, Washington DC 20001
(202) 633-4964

[9 ELR 20649]

Hart, J.:

In this action 12 organizational plaintiffs and 13 individuals challenge transportation plans and the transportational planning process for the Washington Metropolitan Area because, it is argued, they are in violation of the law and do not adequately reflect the environmental concerns of the plaintiffs.

In a series of orders filed June 9, 1978, this court granted motions to dismiss made by the Secretary of the United States Department of Transportation, the National Capital Region Transportation Planning Board, the District of Columbia, the State of Maryland, and the Washington Metropolitan Area Transit Authority. Federal district courts need not make specific findings of fact and conclusions of law in ruling on a motion to dismiss and none were made. FED. R. CIV. P. 52(a). Nevertheless, such findings have been found useful for purposes of appeal, and the United States Court of Appeals for the District of Columbia, by Order filed July 30, 1979, remanded the record in this case for a statement of the factual bases and legal rationales for the orders. Pursuant to the July 30, 1979 Order, this court states as follows:

(1) This court lacks subject matter jurisdiction over allegations contained in the complaint which purport to arise under § 304 of the Clean Air Act, as amended, 42 U.S.C. § 7604. The complaint fails to state allegations which bring the subject matter of the suit within the narrow scope of § 304, inasmuch as it is not alleged that defendants are in violation of an emission standard or limitation. See Clean Air Act, §§ 304(a)(1), 304(f); Cf. Citizens Ass'n of Georgetown v. Washington, 175 U.S. App. D.C. 356, 535 F.2d 1318 [6 ELR 20524] (1976). Because this suit is not authorized by § 304 of the Clean Air Act, the special standing provisions of § 304(a)(1) are inapplicable to plaintiffs.

(2) In addition to citing the Clean Air Act, plaintiffs' complaint is also based on allegations of violations of the Administrative Procedure Act, 5 U.S.C. § 501 et seq., and other statutes. In order to have standing to obtain judicial review the aggrieved party must show "injury in fact" and that the alleged injury is to an interest "arguably within the zone of interests to be protected or regulated by the statute . . . in question." Data Processing Service v. Camp, 397 U.S. 150, 152-53 (1970).¹ The allegations of injury in this case are essentially contained within paragraph 12 of the complaint (see also, P43):

12. The adoption and implementation of the transportation plan which violates applicable law, but which are [sic] presently approved by the defendants, will adversely affect individual plaintiffs and plaintiff organizations and their members. The plan will have significant and injurious effects on air quality and public health. Increased highway capacity will cause the quality of the air plaintiffs breathe to be significantly more toxic and damaging to their health, particularly to those individuals who suffer from respiratory ailments. In addition, as a result of defendants' action, residents will be dislocated; expressways will be built; park lands will be taken; and significant changes in transportation patterns and land use within the communities of its members will increase noise and water pollution.

Application of standing principles to the complaint shows that plaintiffs have not satisfied the requirements for standing. In effect, individual plaintiffs and plaintiff organizations have alleged nothing more than a general interest common to all area citizens. According to the Supreme Court, an injury involves a "generalized interest" and is thus "too abstract" for federal judicial concern if the group claiming injury cannot express their alleged injury as an aggregation of "specific claims of interests peculiar" to particular individuals. Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 216-27 (1974). Schlesinger established that, "while standing is not to be denied simply because many people [each] suffer the same injury," citing United States v. SCRAP, 412 U.S. 669 [3 ELR 20536] (1973), a plaintiff cannot claim standing if his or her adversely affected interest is "undifferentiated" from that of other citizens.418 U.S. at 217. See also United States v. Richardson, 418 U.S. 166, 179 (1974). Both Schlesinger and Richardson rest on a justifiable reluctance to transform the federal judiciary into a general ombudsman for citizen grievances. Citizen advocacy concerning issues of broad public concern² is appropriately directed against the legislative and executive branches, which were intended to be responsive to public attitudes. See United States v. Richardson, 418 U.S. 166, 189 (Powell, J., concurring).

In addition, the Supreme Court has recently emphasized that the injury in fact component of standing includes as a corollary a requirement that a party demonstrate that the challenged government action caused the litigant's injury. "[T]o meet the minimum requirement of Art. III," plaintiff must "establish that, in fact, the asserted injury was the consequence of the defendants' actions, or that prospective relief will remove the harm." Warth v. Seldin, 422 U.S. 490, 505 (1975). See also Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 25, 38, 42-43 (1976). The allegations of general and speculative injuries which have been made in this case are not clearly traceable to approval of the challenged transportation plan or to any other challenged government action or inaction and plaintiffs do not plausibly suggest that victory in this action would result in plaintiffs' protection from present or future injury of the sort alleged in paragraph 12 of the complaint. Indeed, it can be more plausibly argued that if the plaintiffs were to prevail in this action environmental harm will increase rather than decrease. See Washington Metropolitan Area Transit Authority's Motion to Intervene at 4-6.Cf., Movement Against Destruction v. Volpe, 361 F. Supp. 1360, 1391 [3 ELR 20667] (D. Md. 1973), aff'd 500 F.2d 29 [4 ELR 20278] (4th Cir. 1974) (freeway construction may increase average vehicle speed and reduce air pollution).

In sum, statements concerning the general concern and abstract interest of various individuals and organizations in the environment, air quality, and transportation, coupled with speculative allegations of possible injury to the general public which fail to show what actual injury or harm has been or will be suffered by the particular plaintiffs before the court, do not, without more, give rise to standing. See Sierra Club v. Morton, 405 U.S. 727 [2 ELR 20192] (1972). Plaintiffs lack standing to bring Counts I, II, III, and IV of their complaint.

(3) The court is further of the opinion that the 1977 Amendments to the Clean Air Act rendered moot and meaningless each of the first three counts of the complaint by making basic changes in the statutory scheme which governs the coordination of transportation planning and air quality planning. Clean Air Act Amendments of 1977, Pub. L. No. 95-95, 91 Stat. 685, 42 U.S.C.A. §§ 7401 et seq., (West 1978 Pamph.). The 1977 Amendments directly address the issues raised by plaintiffs concerning the relationship between transportation planning and state implementation plans and make it inappropriate to grant plaintiffs the relief requested.

(4) Count IV of the complaint is based on the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. Section 102(2)(c) of the Act (42 U.S.C. § 4332(2)(c)) requires that a detailed environmental impact statement be prepared for all major federal actions adversely affecting the environment. Plaintiffs contend that defendant Secretary's failure to prepare an environmental impact statement in conjunction with the preparation [9 ELR 20650] and adoption of the 1976 revisions in the fiscal year 1977 long range transportation plan, and the further certification and funding of a program of highway projects in the Washington metropolitan area in the absence of such a statement, violated § 102(2)(c) of the Act.

The court is of the opinion that the long range plan is not a proposal for federal "action" within the meaning of the statute because the plan is speculative and many of its elements will not be developed. Cf. Kleppe v. Sierra Club, 427 U.S. 390 (1976). If the projects described in general terms in the long range plan later become proposals for federal action, the appropriate environmental impact study would then be mandated by the Act.

In addition, the long range plan does not appear to satisfy the "federal" component of the federal action requirement. Although federal officials must certify that the planning process meets or substantially meets the requirements of the planning regulations, this certification does not constitute federal control over the substance of the long range plan. Count IV of the complaint is thus deficient as a matter of law.

(5) The July 30, 1979 Order specifically requested that this court address, among other things, whether the actions of which appellants complain are ripe for review. Nowhere in the several volumes of pleadings filed in this action was the question of ripeness raised by any of the numerous litigants. The court does not address this issue.

1. See also Barlow v. Collins, 397 U.S. 159, 171:

The objectives of the Article III standing requirement are simple: The avoidance of any use of a "federal court as a forum [for the airing of] generalized grievances about the conduct of government," and the creation of a judicial context in which "the questions will be framed with the necessary specificity, . . . the issues . . . contested with the necessary adverseness and . . . the litigation . . . pursued with the necessary vigor to assure that the . . . challenge will be made in a form traditionally thought to be capable of judicial resolution."

2. This would not be the case with respect to harms visited upon discrete and insular minorities. See United States v. Carolene Products Co., 304 U.S. 144 (1938).