MASSACHUSETTS AIR POLLUTION & N. ABATE. COM. v. Brinegar, Misc. No. 74-8043.

• Citation: 499 F.2d 125
• Decision Date: 12 June 1974
• Docket Number: Misc. No. 74-8043.
• Parties: MASSACHUSETTS AIR POLLUTION AND NOISE ABATEMENT COMMITTEE et al., Plaintiffs, Appellants, v. Claude S. BRINEGAR, as he is the Secretary of Transportation, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

499 F.2d 125 (1974)

MASSACHUSETTS AIR POLLUTION AND NOISE ABATEMENT COMMITTEE et al., Plaintiffs, Appellants, v. Claude S. BRINEGAR, as he is the Secretary of Transportation, et al., Defendants, Appellees.

Misc. No. 74-8043.

United States Court of Appeals, First Circuit.

Argued June 12, 1974.

Decided June 12, 1974.

Albert K. Butzel, New York City, with whom Berle, Butzel & Kass, New York City, was on motion and memorandum in support thereof, for appellants.

William A. Brown, Asst. U.S. Atty., Chief, Civ. Div., with whom James N. Gabriel, U. S. Atty., was on memorandum in opposition thereto, for Claude S. Brinegar and Alexander P. Butterfield, appellees.

Neil L. Lynch, Boston, Mass., for Massachusetts Port Authority, appellee.

Before COFFIN, Chief Judge, and CAMPBELL, Circuit Judge.

PER CURIAM.

This is an appeal from a district judge's refusal to grant a temporary restraining order prohibiting three flights by the Concorde, a supersonic transport (SST), in and out of Boston during the next several days.¹ This is not the setting in which courts ordinarily address themselves to complex, long-term issues. Thus our decision today has no implications whatever for the merits of plaintiffs' claim that there must be an environmental impact statement (EIS) before the Concorde operates within this country.

We act within the constraints of familiar law that the granting or denying of a temporary restraining order is seldom reviewable by an appellate court. The law in this circuit, not unlike that in others, has carved out narrow exceptions where, in effect, an action on a temporary restraining order may be treated as an appealable action on a request for a preliminary injunction. These exceptions are restricted to cases where there has been a full adversary presentation of evidence or where the circumstances are such that if review is refused there is no further possibility of interlocutory relief.

Here, because of the exigencies of time, there was no opportunity for a full presentation of evidence by the parties.² While plaintiffs would be content to rest on the present record, defendants are not. Perhaps this defect of evidence would not be conclusive if we could say with confidence that on the facts before us plaintiffs' case was so strong that they will probably succeed. But we cannot presently say this. The nexus between the three flights and possible future demonstration flights and the deliberations of the Federal Aviation Administration connected with its consideration of the Concorde's owners' application for a U. S. type certificate is as yet unclear. An evidentiary hearing is needed to clarify the situation. The cited precedents concern factual situations sufficiently different from this as not to be dispositive, although it is clear that environmental law requires that a federal agency involve itself early and continuously with EIS's in considering its programs...