Macht v. Skinner, 90-5017
| Decision Date | 12 October 1990 |
| Docket Number | No. 90-5017,90-5017 |
| Citation | 916 F.2d 13 |
| Parties | , 286 U.S.App.D.C. 296, 21 Envtl. L. Rep. 20,004 Robert MACHT, et al., Appellants, v. Samuel K. SKINNER, Secretary, Department of Transportation, et al., Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia.
Joseph J. McGovern, with whom Beth Anne Smith, Philadelphia, Pa., was on the brief, for appellants.
Mark E. Nagle, Asst. U.S. Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., and R. Craig Lawrence, Asst. U.S. Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellees Samuel K. Skinner, Secretary, Dept. of Transp., et al.
Carmen M. Shepard, Asst. Atty. Gen., Baltimore, Md., for appellee State of Md.
David A. Doheny, Andrea C. Ferster and Elizabeth S. Merritt, Washington, D.C., were on the brief for amicus curiae, urging that this court reverse the decision of the district court and enjoin the project until the defendants fully comply with Section 4(f) of the Dept. of Transp. Act, the Nat. Environmental Policy Act, and the Nat. Historic Preservation Act.
Before WALD, Chief Judge, and RUTH BADER GINSBURG and THOMAS, Circuit Judges.
Opinion for the Court filed by Chief Judge WALD.
Appellants, Robert Macht, Lois Macht, and the Robert E. Lee Park Defense Fund, Inc. and its members, sued Samuel K. Skinner, Secretary of the United States Department of Transportation, and various other state and federal officials to enjoin construction of the Central Baltimore Light Rail Line, alleging that state and federal officials failed to comply with Sec. 4(f) of the Department of Transportation Act, 49 U.S.C. Sec. 303, and the National Environmental Policy Act ("NEPA"), 42 U.S.C. Sec. 4321 et seq., and rules and regulations promulgated thereunder. The district court denied the appellants' motion for summary judgment and granted the state and federal appellees' cross-motions for summary judgment. Macht v. Skinner, No. 89-1161, Memorandum Opinion ("Mem. op.") (D.D.C. Dec. 21, 1989), reprinted in Joint Appendix ("J.A.") at 46. This appeal followed, and we now affirm.
After preliminary analysis by the Maryland Mass Transit Administration ("MTA"), Maryland transit officials decided in December 1987 to build a 27-mile light rail transit system 1--the Central Baltimore Light Rail Line ("CLRT"). J.A. at 161-62. Maryland initially planned the CLRT to extend from Hunt Valley, in northern Baltimore County, through downtown Baltimore, to Baltimore-Washington International Airport ("BWI") and Dorsey Road in Anne Arundel County. Under the original plan, state and local governments were to finance $250 million of the estimated $290 million project, while the Urban Mass Transportation Administration ("UMTA") was to contribute the remaining $40 million. Id. at 162.
As the planning progressed, however, Maryland officials realized that they were required to comply with NEPA and Sec. 4(f) in order to obtain UMTA funding. Because compliance with NEPA would delay construction of the CLRT, Maryland officials decided in late 1988 to withdraw their request for UMTA funding and build a smaller light rail line entirely with state and local funds. Macht, Mem. op. at 2, J.A. at 47. Under the modified Light Rail Project ("Light Rail Project" or "the Project"), Maryland is building a 22.5-mile baseline segment that will run from Dorsey Road in the south to Timonium Road in the north. J.A. at 294. In addition, Maryland is considering building three extensions with federal funds: (1) an extension from Timonium Road to Hunt Valley in the north, (2) a spur connecting BWI Airport to the Project in the south, and (3) a connection between Pennsylvania Station and either Cathedral Street or an area "north of the Mount Royal Station." Macht, Mem. op. at 2, J.A. at 47.
Maryland has begun construction on the 22.5-mile state segment. But thus far the only federal involvement in the Project has been a $2.5 million UMTA grant to help the state complete alternative analyses and draft environmental impact statements ("EIS") for the proposed extensions. 2 Macht, Mem. op. at 6, J.A. at 51. Appellants brought suit in the district court to enjoin construction of the Light Rail Project, alleging that Maryland illegally divided the Project into a state segment and two federal extensions in order to avoid compliance with NEPA. In particular, appellants assert that the state segment under construction will have an adverse impact on the Robert E. Lee Park, and that Maryland is attempting to build the Light Rail Project through the park without doing the environmental analysis required by NEPA and Sec. 4(f) of the Transportation Act.
NEPA requires that federal agencies consider the environmental consequences of "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. Sec. 4332(2)(C). Thus the threshold issue in this case is whether, at this point, there is sufficient federal involvement in the Light Rail Project to constitute major federal action affecting the environment under NEPA. 3 Appellants base their claim that the Project involves major federal action on two facts: (1) UMTA has given Maryland $2.5 million for preliminary engineering studies and environmental impact statements for the proposed extensions to the Light Rail Project; and (2) Maryland must obtain from the Army Corps of Engineers a wetlands permit pursuant to Sec. 404 of the Clean Water Act and Sec. 10 of the Rivers and Harbors Act in order to build the state segment. We hold that neither is sufficient to transform the entirely state-funded Light Rail Project into "major federal action" affecting the environment within the meaning of NEPA. 4
On September 29, 1989, UMTA granted MTA a maximum of $2,587,500 to perform an Alternative Analysis and Draft Environmental Impact Statement for the possible extensions to the Light Rail Project. Macht, Mem. op. at 6, J.A. at 51. Appellants argue that this federal expenditure makes the entire Light Rail Project--the 22.5-mile state segment under construction as well as the proposed extensions--"major federal action" affecting the environment within the meaning of NEPA. This argument is based on a misconception about NEPA's requirements.
NEPA requires federal agencies to prepare or evaluate an EIS for any proposed "major federal action" that will "significantly affect[ ] the quality of the human environment." 42 U.S.C. Sec. 4332(2)(C). NEPA does not require UMTA to prepare an EIS until it proposes or decides to participate in a project that will affect the environment. In this case, UMTA has not yet decided to assist Maryland in the final design or construction of the proposed extensions to the Light Rail Project. As the district court aptly recognized, "[t]o argue that the federal funding ... for the preliminary analysis studies constitutes major federal action in the proposed extensions would be putting the proverbial cart before the horse because until these studies are done a decision cannot be reached on what projects--if any--are to be developed." Macht, Mem. op. at 6, J.A. at 51.
Our holding that UMTA funding of preliminary studies is not major federal action within the meaning of NEPA is consistent with other circuit court precedent. In Rapid Transit Advocates, Inc. v. Southern California Rapid Transit District, 752 F.2d 373 (9th Cir.1985) (per curiam), a group of homeowners sought to enjoin an UMTA grant to assist the local transit district in performing preliminary design and engineering studies for a proposed subway line, alleging that UMTA failed to comply with various provisions of the UMT Act and NEPA. The Ninth Circuit rejected their claim, saying:
Neither [UMTA's] decision nor the design and engineering work that will follow will have any impact upon appellants in and of themselves.... The UMT Administration has explicitly disavowed any advance commitment to approve construction....
The process may never be completed; the Wilshire Subway may never be funded. If it is, appellants' present objections can be raised and fully considered in a suit to review the agency's final action in light of then existing circumstances.
752 F.2d at 378-79; see also Atlanta Coalition on the Transportation Crisis, Inc. v. Atlanta Regional Commission, 599 F.2d 1333, 1347 (5th Cir.1979) ().
Similarly in this case, UMTA's decision to fund preliminary studies, in and of itself, will have no impact on appellants or the environment. UMTA has expressly stated that its decision to provide funding for alternative analyses "is not a commitment to fund the construction of any project that may result." Letter from Alfred A. DelliBovi, Administrator of UMTA, to Ronald J. Hartman, Administrator of MTA (March 30, 1989), J.A. at 371. In fact, Maryland has not even decided to build the proposed extensions--with or without federal financial assistance. See Macht, Mem. op. at 8, J.A. at 53. At this point, the federal involvement is not the firm commitment that could transform the so far entirely state-funded Light Rail Project into major federal action affecting the environment within the meaning of NEPA. Cf. Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1243 (D.C.Cir.1980) ().
Nor are we persuaded that the Project involves major federal action because Maryland hopes...
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