Virginians for Dulles v. Volpe

• Decision Date: 02 June 1976
• Docket Number: No. 72-2029,72-2029
• Citation: 541 F.2d 442
• Parties: , 6 Envtl. L. Rep. 20,581 VIRGINIANS FOR DULLES by Clive L. DuVal, etc., et al., Appellants, v. John VOLPE, Individually and as Secretary of Transportation, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 442

541 F.2d 442

9 ERC 1538, 6 Envtl. L. Rep. 20,581

VIRGINIANS FOR DULLES by Clive L. DuVal, etc., et al., Appellants, v. John VOLPE, Individually and as Secretary of Transportation et al., Appellees.

No. 72-2029.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 12, 1975.

Decided June 2, 1976.

Geoffrey Judd Vitt, Alexandria, Va. (Bernard S. Cohen, Stephen D. Annand, Cohen & Vitt, Alexandria, Va., on brief), for appellants.

Dirk D. Snel, Atty., U. S. Dept. of Justice, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., William B. Cummings, U. S. Atty., Edmund B. Clark, Atty., U. S. Dept. of Justice, Washington, D. C., on brief), for federal appellees.

Lyman M. Tondel, Jr., New York City (George Weisz, George J. Grumbach, Jr., Cleary, Gottlieb, Steen & Hamilton, New York City, Joseph M. Spivey, III, T. S. Ellis, III, Hunton, Williams, Gay & Gibson, Richmond, Va., on brief), for airline appellees.

Before CLARK, Supreme Court Justice, ^* BUTZNER, Circuit Judge, and FIELD, Senior Circuit Judge.

BUTZNER, Circuit Judge:

Virginians For Dulles (VFD) appeals the dismissal of a suit which it, along with other citizens' groups and several individuals, brought against the Secretary of Transportation, the Administrator of the Federal Aviation Administration, the Director of Airport Services, and eleven major airlines to abate noise and air pollution from jet planes at Washington National Airport. The complaint charged that National was a nuisance because noise and emissions unreasonably interfered with plaintiffs' enjoyment of their property and deprived them of rights protected by the fifth and ninth amendments. The plaintiffs also alleged that the FAA violated the National Environmental Policy Act by failing to file environmental impact statements concerning its operation of National and Dulles International Airport and that the FAA acted arbitrarily and capriciously in violation of the Administrative Procedure Act. After an extensive evidentiary hearing, the district court denied relief on all grounds. Virginians For Dulles v. Volpe, 344 F.Supp. 573 (E.D.Va.1972). Only VFD has appealed. The airlines have moved to dismiss the appeal, asserting that the cause of action belongs solely to the individual plaintiffs, not to VFD. We grant the motion to dismiss in part, and we affirm the order of the district judge on all grounds except the need for an impact statement. On that issue we reverse and remand the case for further proceedings.

I

The plaintiffs sought to institute a class action to abate a nuisance at National. The district court ruled:

"To the extent that the complaint undertakes to state a class action on behalf of persons other than that group (of people who live or work near National), the Court cannot say that the named parties are representative of the class, since in the opinion of the Court this is basically a private nuisance action in which specific injury must be shown. Obviously many members of the larger class originally alleged make no complaint of injury or are not injured. There are substantial questions of fact not common to a class broader than the named plaintiffs and affiants. Allowing intervention by the affiants is more feasible than proceeding as a class. Although the action must be stripped of its character as a class action, enough of the named plaintiffs have presented their claims to enable the Court to decide the issues presented. Those named plaintiffs individually present a justiciable claim so that the standing of other named plaintiffs is immaterial." 344 F.Supp. at 575.

In sum, for purposes of these claims, the court treated VFD as a representative of the purported class and disallowed its effort to pursue the suit as a class action.

The court allowed individual plaintiffs and intervenors to present evidence about the effect of aircraft noise on their health and property values. It found that the evidence failed to establish that the noise had a direct effect on the plaintiffs' health or an adverse effect on the value of their property. ¹ Relying on Washington v. General Motors Corp., 406 U.S. 109, 114, 92 S.Ct. 1396, 31 L.Ed.2d 727 (1972), it excluded evidence on pollution from aircraft emissions because federal laws and regulations have preempted that field.

No individual plaintiff has appealed the court's judgment against his claim. At the same time, VFD has not appealed the ruling that it could not assert the nuisance claims of its members. Thus, the denial of relief on the nuisance claims is not an issue on appeal, and to this extent we grant the airlines' motion to dismiss. See Fed.R.App.P. 28(a)(2) and (a)(4); Mississippi River Corp. v. F.T.C., 454 F.2d 1083, 1093 (8th Cir. 1972); United States v. White, 454 F.2d 435, 439 (7th Cir. 1971); United States v. Williams, 378 F.2d 665, 666 (4th Cir. 1967); 9 Moore, Federal Practice P 228.02 (2.-1) at 3755 (2d ed. 1973).

II

The district court's ruling that VFD could not assert its members' nuisance claims was grounded on the individualized nature of those claims and the consequent inappropriateness of trying them in a class action. The court did not hold that VFD could not represent its members in their effort to compel the FAA to prepare an environmental impact statement. The complaint sufficiently establishes VFD's standing to assert this issue, for it alleges that the association's members are adversely affected in their use of the areas near National and Dulles by the FAA's operation of the airports in violation of the National Environmental Policy Act. See United States v. SCRAP, 412 U.S. 669, 683-90, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973).

Section 102(2)(C) of the Act, 42 U.S.C. § 4332(2)(C), requires federal agencies to prepare detailed statements showing the environmental impact of "major Federal actions significantly affecting the quality of the human environment" and alternatives to the proposed action. ² VFD contends that this provision requires the FAA to file impact statements concerning its operation of Dulles and National because they are major federal actions that significantly affect the environment. The FAA argues that no impact statement is required because use of the airport has not significantly changed since the passage of the Act, and, therefore, no proposed major federal action within the meaning of the Act has occurred.

The district court, relying on our opinion in Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir. 1972), held that the Act's requirement of an impact statement did not apply to these airports. In Arlington Coalition we considered whether the Act applies to current federal projects begun before its effective date. The specific question we addressed was whether an impact statement must be filed in connection with a highway to be built with federal funds when much of the initial planning had been done before passage of the Act. We held that an impact statement must be prepared but acknowledged that "Congress did not intend that all projects ongoing at the effective date of the Act be subject to the requirements of Section 102. At some stage of progress, the costs of altering or abandoning the project could so definitely outweigh whatever benefits that might accrue therefrom that it might no longer be 'possible' to change the project in accordance with Section 102." ³ Applying this standard, the district court found that since the cost of abandonment outweighed any environmental benefit, no impact statement was required concerning operation of the airports.

In Arlington Coalition we suggested a way of dealing with a situation where the only alternatives were completion or abandonment of a project. We recognized that in some situations it would make no sense to abandon a project, even though an impact statement might show that in retrospect it was unwise to have begun it. If the only alternative to the current level of operations at National were abandonment of the airport, then Arlington Coalition would indicate that no impact statement was required, cf. Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 424-25 (2d Cir. 1972). But VFD does not argue that the airport should be abandoned. It contends that an impact statement would show that changing the hours National is used and directing some traffic to Dulles would benefit the environment. VFD insists the benefit from these measures would outweigh their cost.

The district court did not rely exclusively on Arlington Coalition. It also held that the FAA's operation of the airports was not subject to the requirement of § 4332(2)(C) because no major federal action significantly affecting the environment had taken place since the passage of the National Environmental Policy Act. In reaching this conclusion the court examined the introduction of the Boeing 727-200 stretch jet and a curfew on night flights. The court found that neither of these were major federal actions significantly affecting the environment. Were these the only factors to be considered, the court's ruling might well dispose of this issue.

The facts stipulated by the parties, however, demonstrate that the FAA's activities do fall within the scope of § 4332(2)(C). These facts show that the population near the airports is growing and that the number of aircraft operations and passengers has steadily increased through the years. Moreover, the FAA forecasts that passengers will increase in number from 10,300,000 in 1972 to 16,000,000 in 1980 at National and from 2,465,000 to 7,658,000 at Dulles. The parties also stipulated that in 1972 the FAA included $26,000,000 in its budget request as the federal government's share of "a major modernization of National."

We hold that the FAA's acquiescence in the vastly expanded use of the airports requires an impact statement. Cf. Scientists' Institute For Public Information v. Atomic Energy Commission, 156 U.S.App.D.C. 395, 481 F.2d 1079, 1088 (1973). This...