City of Boston v. Volpe, 72-1092.

• Decision Date: 17 July 1972
• Docket Number: No. 72-1092.,72-1092.
• Citation: 464 F.2d 254
• Parties: CITY OF BOSTON, Plaintiff-Appellant, v. John A. VOLPE et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

464 F.2d 254 (1972)

CITY OF BOSTON, Plaintiff-Appellant, v. John A. VOLPE et al., Defendants-Appellees.

No. 72-1092.

United States Court of Appeals, First Circuit.

Heard June 6, 1972.

Decided July 17, 1972.

Peter Koff, Asst. Corporation Counsel, with whom Herbert P. Gleason, Corporation Counsel, and Lawrence J. Ball, Asst. Corporation Counsel, were on brief, for appellant.

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

Jeffrey N. Shane, United States Dept. of Transportation, with whom Kent Frizzell, Asst. Atty. Gen., Joseph L. Tauro, U. S. Atty., Terry Philip Segal, Asst. U. S. Atty., and Edmund B. Clark, Atty., Dept. of Justice, were on brief, for John A. Volpe, etc., and others, appellees.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

Appellant, the City of Boston, appeals from the denial of a preliminary injunction which would have restrained the Massachusetts Port Authority Port Authority from continuing construction of the Outer Taxiway at Logan Airport, pending decision on the merits of Boston's complaint that many federal statutes and regulations have not been complied with in connection with the processing of the Port Authority's request for a federal airport development grant.¹ In seeking preliminary relief against the Port Authority, Boston stressed its contentions that the federal appellees, the Secretary of the Department of Transportation DOT and the Administrator of the Federal Aviation Administration FAA have violated, principally, the National Environmental Policy Act of 1969 NEPA, 42 U.S.C. § 4332(C), and dependent regulations, and, secondarily, the Airport and Airway Development Act of 1970, 49 U.S.C. § 1716, in allocating funds for an airport project without first issuing a detailed environmental impact statement or finding that the project is consistent with local plans and interests and that the Port Authority has legal authority to engage in the development.²

In early 1970, FAA gave its general approval to the Port Authority's Airport Layout Plan to construct an Outer Taxiway in the Bird Flats area on the southwest side of Logan Airport. In December of 1970 the Port Authority began work on the project. In February of 1971, it forwarded a request for aid to FAA, together with a "negative declaration" that no significant adverse environmental impact was foreseen. Copies were sent to regional and state clearing houses. The Boston Redevelopment Authority responded that the planning was unacceptable, in view of the threats of noise and future harbor filling to the continued viability of plans for trying to rehabilitate an adjacent area, Jeffries Point, where a waterfront park had long been planned for a deteriorated community. The Port Authority, in the meantime, began to bring in fill to the construction site. In May FAA allocated $1,100,000 for construction. Shortly thereafter Boston arranged a conference in Washington to make known its objections to the summary procedure and to the environmental disadvantages of the project. Notwithstanding FAA's advice that it would withhold approval until problems were resolved, the Port Authority forwarded a project application and even awarded a contract for construction. In July DOT announced that the Port Authority's application had been returned "until an environmental impact statement is prepared and circulated in accordance with the National Environmental Policy Act". Since then, the Port Authority has submitted a draft impact statement to FAA, which has received comments from various agencies and has submitted a revised draft to DOT. No final statement has yet been issued. In the meantime, preparatory work has gone forward and, in April 1972, construction began.

This chronology, of course, is far from that ordained by the letter and the spirit of the National Environmental Policy Act. The concept of that Act was that responsible officials would think about environment before a significant project was launched; that what would be assessed was a proposed action, not a fait accompli; that alternatives to such action would be seriously canvassed and assayed; and that any irreversible effects of the proposed action would be identified.³ The executive branch guidelines made even more clear that the purpose of the statute was to "build into the agency decision process" environmental considerations, "as early as possible", taking into account "the overall, cumulative impact of the action proposed (and of further actions contemplated)" and "environmental consequences not fully evaluated at the outset of the project or program". 36 Fed. Reg. 7724 (1971).

DOT has been even more specific in its requirements, calling for an environmental impact draft "at the earliest practicable point in time . . . so that the analysis of the environmental effects and the exploration of alternatives . . . are significant inputs to the decision-making process." DOT Order 5610.1 (Oct. 7, 1970). The order adds that "When there is doubt whether or not to prepare a statement it should be prepared." In DOT Order 5050.2 (Dec. 7, 1970), the Department required that any applicant for assistance in extending or adding a runway submit a draft environmental statement, noting that a "negative declaration" was permitted in only limited circumstances, and that, where there has been previous federal funding, a full statement is required "if an irrefutable showing cannot be made that environmental consequences were fully evaluated at the time of initial . . . funding".

A belated effort to comply with NEPA may or may not prove to be as unlikely an enterprise as adding yeast to an unleavened loaf. But that is not the question presently before us. That is, before we face the validity of any federal action subject to the National Environmental Policy Act—and the Airport and Airway Development Act—we must ask whether the action now being taken by the Port Authority and sought to be enjoined by Boston is yet a federal action. A project does not necessarily become "federal" at the point when an agency fails to follow mandated procedures —agencies may be subject to duties concerning a proposed federal action at a time when an applicant may not yet be enjoined from acting on its own. The first issue, then, is not whether the federal agencies have failed to follow the procedures, but whether, assuming such failure, a preliminary injunction should be issued — not against the agencies—but against the Port Authority.⁴

Appellant relies on several factors to make the project "federal", all but one of which can be disposed of briefly. Appellant was unable to convince the district court that the previously constructed Inner Taxiway and the Outer Taxiway here involved are so interrelated as to make the latter a federal project because federal funds helped to finance the former. We do not accept the general proposition that once the federal government has participated in a development, that development is necessarily forever federal. Many projects have federal assistance at an exploratory stage and are then completed through wholly local or state funding. The question, then, is a factual one, and nothing in the present record persuades us that these projects, for funding purposes separate, should be treated as one for the purpose of identifying the time when the action of the Port Authority becomes federal action. Nor does the Port Authority's present intention eventually to seek federal funds for yet another stretch of taxiway make the Outer Taxiway a federal project. Similarly, the adoption of certain federal standards and specifications in the hope of qualifying for federal assistance cannot transform a state or local project into a federal one. This is not to say that the past and the future are irrelevant in assessing the environmental impact of a present project for which federal funds are sought.⁵

More complicated is appellant's contention that the process of obtaining federal funding for the Outer Taxiway itself has progressed to the point where the project has become federal. What has happened, in brief, is that a state authority, fully empowered to raise and spend funds for airports, has "requested" a federal grant, 14 C.F.R. § 151.21(a), the federal agency has made a "tentative allocation" of funds for the project, 14 C.F.R. § 151.21(b), and the authority has then submitted a formal application, 14 C.F.R. § 151.21(c). The essence of appellant's position is an asserted analogy between "tentative allocation" of airport aid and those stages in the approval of federal aid highways which have been held to make a highway federal for this purpose.⁶ Apart from this analogy, the cases cited by appellant deal with the adequacy of agency procedures to comply with the National Environmental Policy Act, see Calvert Cliffs' Coordinating Comm. v. United States Atomic Energy Comm., 146 U.S.App.D. C. 33, 449 F.2d 1109 (1971); Greene County Planning Bd. v. FPC, 455...