Atlanta Coalition on Transp. Crisis, Inc. v. Atlanta Regional Com'n

• Decision Date: 02 August 1979
• Docket Number: No. 77-1921,77-1921
• Citation: 599 F.2d 1333
• Parties: , 9 Envtl. L. Rep. 20,590 ATLANTA COALITION ON the TRANSPORTATION CRISIS, INC., etc., et al., Plaintiffs-Appellants, v. ATLANTA REGIONAL COMMISSION, etc., et al., Defendants-Appellees, Metropolitan Atlanta Rapid Transit Authority, Defendant Intervenor-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1333

599 F.2d 1333

13 ERC 1497, 9 Envtl. L. Rep. 20,590

ATLANTA COALITION ON the TRANSPORTATION CRISIS, INC., etc., et al., Plaintiffs-Appellants, v. ATLANTA REGIONAL COMMISSION, etc., et al., Defendants-Appellees, Metropolitan Atlanta Rapid Transit Authority, Defendant

Intervenor-Appellee.

No. 77-1921.

United States Court of Appeals, Fifth Circuit.

Aug. 2, 1979.

John W. Vardaman, Jr., Washington, D. C., John R. Myer, Atlanta, Ga., for plaintiffs-appellants.

Arthur K. Bolton, Atty. Gen., Roland F. Matson, Asst. Atty. Gen., Robert S. Stubbs, II, Exec. Asst. Atty. Gen., Atlanta, Ga., for Downing Musgrove, Ga. Dept. of Transportation, Frank Harscher, III and Ga. State Tollway Authority.

William D. Mallard, Asst. U. S. Atty, Richard L. Chambers, 1st Asst. Atty. Gen., Marion O. Gordon, Sr. Asst. Atty. Gen., Atlanta, Ga., Edmund B. Clark, Atty., App. Section, Land & Nat. Res. Div., Washington, D. C., Carl Strass, Dept. of Justice, Washington, D. C., for federal defendants-appellees.

R. William Ide, III, Bettie W. Driver, Anne Emanuel, Atlanta, Ga., for Metropolitan Atlanta RTA.

William R. Bassett, Harvey M. Koenig, Atlanta, Ga., James W. Moorman, Asst Atty. Gen., Jacques B. Gelin, Atty., Dept. of Justice, Washington, D. C., for Atlanta Regional Commission.

Appeal from the United States District Court for the Northern District of Georgia.

Before BROWN, Chief Judge, AINSWORTH, Circuit Judge, and CAMPBELL ^*, District Judge.

JOHN R. BROWN, Chief Judge:

The issue in this case is whether the defendants the Atlanta Regional Commission (ARC), the Georgia Department of Transportation (GaDOT), the Metropolitan Atlanta Rapid Transit Authority (MARTA), and the United States Department of Transportation (USDOT) must prepare an environmental impact statement (EIS) on the Regional Development Plan (RDP), the long-range transportation systems and land use planning guide for the Atlanta area. ¹ We hold that the RDP is not a "recommendation or report on a proposal for major Federal action" within the meaning of § 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA). We therefore affirm the District Court's judgment in favor of the defendants.

I

This litigation began in March of 1974 when the Atlanta Coalition on the Transportation Crisis (ACTC) a coalition of neighborhood, civil, community, and environmental organizations the Eighth Ward Civic Association, Inman Park Restoration, Inc., and various named individuals brought suit against ARC, GaDOT, USDOT, and their officers. In Count I of their five-count complaint, the plaintiffs sought a declaratory judgment that the NEPA required the defendants to prepare an impact statement on the RDP, which was then being developed by ARC. In September of 1974, MARTA was granted leave to intervene as party-defendant. All parties then moved for partial summary judgment on Count I, the essential facts not being in dispute. In July of 1975, Judge O'Kelley granted summary judgment on Count I to the defendants, holding that the development of the RDP was not "major federal action" and that preparation of an EIS on the RDP was not practical because of its tentative, preliminary, and general nature.

Shortly thereafter, on September 23, 1975, the RDP was adopted by ARC. The plaintiffs then moved for a preliminary injunction restraining the implementation of projects included within the RDP. The motion alleged that a "central portion" of the RDP was the proposal for widening Interstate 85 from four lanes to as many as sixteen. It further alleged that a draft impact statement on the widening of I-85 was being circulated and that studies of other segments of the RDP were being prepared. A preliminary injunction should issue, the plaintiffs argued, because NEPA required the preparation of an EIS on the adopted RDP before implementation of the I-85 widening or any other proposed project. In this same vein, they contended as well that the draft statement on the I-85 widening was inadequate because it did not address the environmental impact of the entire RDP. Judge O'Kelley denied the motion, holding that "it is unnecessary for this Court to resolve the substantive issues raised by the plaintiffs' motion." Since the Court had resolved adversely to the plaintiffs their claim in Count I "that an EIS was required on the RDP prior to its final adoption and implementation," and since "the facts and allegations raised by the plaintiffs' motion for preliminary injunction involve entirely different legal questions and considerations which are not a part of this case," Judge O'Kelley reasoned, the motion for a preliminary injunction raised issues outside the scope of the pending action.

Approximately three months later, the District Court entered a consent order dismissing without prejudice the remaining counts of the complaint. The plaintiffs have appealed the District Court's order granting partial summary judgment on Count I and that denying the preliminary injunction.

II

Because it is central to the plaintiffs' theory and to an understanding of the facts and legal issues in this case, we first describe the federal involvement in urban transportation systems planning. ² The relevant statutes and regulations are the Federal Aid Highways Act, 23 U.S.C.A. §§ 101-156, especially § 134, the Urban Mass Transportation Act, 49 U.S.C.A. §§ 1601-1618, especially § 1607, and the accompanying regulations, 23 CFR Part 450 and 49 CFR Part 613. See generally County of Los Angeles v. Coleman, D.D.C., 1976, 423 F.Supp. 496, Aff'd, 1978, 187 U.S.App.D.C. 396, 574 F.2d 607.

Under 23 U.S.C.A. § 134, ³ the Secretary of Transportation cannot approve for federal funding any state or local highway projects for an urban area unless he finds "that such projects are based upon a continuing comprehensive transportation planning process carried on cooperatively by States and local communities in conformance with the objectives stated in this section." Those objectives include "the development of transportation plans and programs which are formulated on the basis of transportation needs with due consideration to comprehensive long-range land use plans, development objectives, and overall social, economic, environmental, system performance, and energy conservation goals and objectives, and with due consideration to their probable effect on" future development. The planning process must "consider all modes of transportation." See also 23 U.S.C.A. § 105(b). To the same effect as respects urban mass transportation projects is 49 U.S.C.A. § 1607: ⁴ before approving for funding any state or local mass transit projects, the Secretary must find that such projects are "based on the planning process," a process that "shall consider all modes of transportation and shall be continuing cooperative, and comprehensive." Both the Federal Aid Highways Act and the Urban Mass Transit Act provide for federal financial assistance to the urban transportation planning process. 23 U.S.C.A. § 104(f); 49 U.S.C.A. § 1607(d).

In order to implement these provisions, the Federal Highway Administration (FHWA) and the Urban Mass Transit Administration (UMTA) have promulgated unified regulations. 23 CFR Part 450; 49 CFR Part 613. These must be complied with before state or local transportation projects in an urban area are eligible for federal funding. Section 450.106 requires the Governor of the State to designate a Metropolitan Planning Organization (MPO) for each urban area which will serve as the planning agency for that area and receive federal planning grants. See 23 CFR Part 450, subpart B. The MPO and the publicly-owned mass transportation services are required by § 450.108(c) to enter into an agreement specifying cooperative procedures for carrying out transportation planning and programming. Sections 450.114, 450.116, and 450.118 specify the required plans and programs the MPO is responsible for developing: the "prospectus and urban planning work program," § 450.114; ⁵ the "transportation plan consisting of a transportation systems management element and a long range element," § 450.116; ⁶ and the "transportation improvement program," § 450.118. ⁷

The most basic of these documents is the § 450.116 transportation plan. The "management element" of this plan must provide for short-term transportation needs and identify recommended improvements to the existing transportation system. § 450.116(b). The "long-range element" must provide for long-term needs and identify new policies, new facilities, and major changes in existing facilities. § 450.116(c). The entire plan must be reviewed annually to confirm its validity and its consistency with current conditions. § 450.116(a).

The § 450.118 transportation improvements program (TIP) is required to be developed and updated annually by the MPO in cooperation with state and local officials and transit operators. § 450.306. The TIP is not a "systems plan" like the § 450.116 transportation plan, but rather identifies transportation improvements to be undertaken in the next three to five year period, indicates the priority of each recommended improvement, and estimates the costs and revenues for the period. §§ 450.306, 450.308. The TIP must also include an "annual element," which lists projects proposed for implementation in the next year. 23 CFR Part 450, subpart C.

The federal agencies will approve for funding transportation projects in an urban area only if (i) the projects are drawn from the annual element of the TIP and thus, indirectly, from the § 450.116 transportation plan, See §§ 450.318, 450.320; and (ii) the urban area's planning process has been certified as in compliance with Part 450, See § 450.122. ⁸ Certification, known as "3C" (continuing, cooperative, comprehensive) certification, involves an annual joint review by FHWA and UMTA of the transportation planning process to determine if it "meets or substantially meets" the requirements of Part 450. Certification of the...