Friends of the Earth, Inc. v. Coleman

• Decision Date: 28 May 1975
• Docket Number: No. 74-3490,74-3490
• Citation: 518 F.2d 323
• Parties: , 5 Envtl. L. Rep. 20,428 FRIENDS OF THE EARTH, INC., et al., Plaintiffs-Appellants, v. William T. COLEMAN, Jr., Secretary of the United States Department of Transportation, et al., Defendants-Appellees, Greater San Francisco Chamber of Commerce et al., Amici Curiae.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 323

518 F.2d 323

8 ERC 1617, 5 Envtl. L. Rep. 20,428

FRIENDS OF THE EARTH, INC., et al., Plaintiffs-Appellants, v.William T. COLEMAN, Jr., Secretary of the United States Department of Transportation, et al., Defendants-AppelleesGreater San Francisco Chamber of Commerce et al., Amici Curiae.

No. 74-3490.

United States Court of Appeals Ninth Circuit.

May 28, 1975.

William P. Hoffman, Jr., San Francisco, Cal., for plaintiffs-appellants.

Jerome Cohen, Dept. of Justice, Washington, D. C., for defendants-appellees.

Thomas A. Welch, of Brobeck, Phleger & Harrison, San Francisco, Cal., for amicus Greater San Francisco Chamber of Commerce.

Darrell P. McCrory, of Monteleone & McCrory, Los Angeles, Cal., for amicus Stockton Steel Fabricators.

OPINION

Before MERRILL, WRIGHT and TRASK, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

This is an appeal from an order denying in part appellants' motion for preliminary injunction.On April 10, 1975, we issued an order affirming the district court, and vacating the temporary injunction pending appeal granted by this courtJanuary 22, 1975.We now consider the facts and legal principles on which that order was based.

This suit began as one for injunctive and declaratory relief against alleged noncompliance with the environmental impact statement (EIS) requirements of § 102(2)(C) of the National Environmental Policy Act (NEPA)(42 U.S.C. § 4321 et seq.(1970)).Appellants sought to halt further implementation of an expansion and development plan for constructing additional facilities and upgrading existing ones at the San Francisco International Airport until a satisfactory EIS was submitted.

On November 11, 1974, the district court granted in part and denied in part appellants' request for preliminary injunction.We affirm that order.

FACTS:

In 1970, appelleeAirports Commission approved a revised and enlarged expansion program for airport development.It was to proceed in phases, to double present airport passenger capacity by 1985, at an estimated cost of $398 million.

The FAA, with its regulatory authority over design and layout of the airport and over construction plans which alter the design and layout, had reviewed and approved layout plans for the expansion program from time to time since the program's adoption, most recently in November of 1973.Such approval is required before federal funds for airport development and expansion may be granted.(Airport and Airway Development Act, 49 U.S.C. § 1716(1970)).

When suit was filed, contracts had been let or work was under way on several expansion program projects.Those as to which no federal funds had been or could be allocated included a new north terminal, the first stage of which was under construction when suit was brought, and a five-story parking garage for which bids had been sought.Once the district court had ruled, appelleeAirports Commission entered into additional contracts for construction of the garage foundation and the superstructure of the terminal.

Other expansion program projects had been approved for assistance under the federal Airport Development Aid Program (ADAP) or were awaiting approval.One of them, the expansion and reconstruction of the airport access road, had already been completed and others, involving various forms of runway improvement, were well under way.Federal funding was also anticipated at the time of this action for construction of additional aircraft aprons and a new control tower.In all, grants totaling $14 million had already been approved, and the total federal contribution might well be expected to reach $38 million by the time the development plan was completed.

In the district court, appellants sought to stop all work on expansion program projects until an EIS had been submitted.They claimed that the approved and anticipated federal assistance rendered the entire program a federal-state joint venture subject to NEPA evaluation.

The district court enjoined further approval or commitment of federal funds for eligible airport development projects "unless and until such request for aid . . . is accompanied by a draft (EIS) on the overall development plan of the Airport."The court refused to enjoin further awards of contracts or construction of the parking garage and north terminal projects.Since it found that "such projects do not involve significant adverse environmental effects, but merely are related to and necessary for maintenance of the present use of the Airport within its existing size and purpose,"the court did not consider whether their nonfederal funding would also insulate them from the requirements of NEPA.

Appellants contend that the district court's finding on the environmental impact of the north terminal and parking garage projects is clearly erroneous, and that an injunction should have been granted as to these projects as well.We agree that the finding lacks support in the record, but we uphold the denial of preliminary relief as to these projects because of the absence of federal participation in the challenged projects.

In reviewing the denial of interlocutory relief, we need only determine whether the district court abused its discretion.SeeRoss-Whitney Corp. v. Smith Kline & French Laboratories, 207 F.2d 190(9th Cir.1953).

Among the factors to be weighed in determining the propriety of a preliminary injunction are the probability of ultimate success on the merits, the relative importance of the rights asserted, the nature of the acts to be enjoined, the hardship to each party that would result pendente lite from granting or denying interlocutory relief, and the public interest.King v. Saddleback Jr. Coll. Dist., 425 F.2d 426(9th Cir.1970).We have considered all factors, and cannot say that the district court's refusal to stop work on the north terminal and parking garage amounted to an abuse of discretion.

A.LIKELIHOOD OF SUCCESS ON THE MERITS.

NEPA requires federal agencies to provide a detailed environmental impact statement on "major Federal actions significantly affecting the quality of the human environment."(42 U.S.C. § 4332(2)(C)).The statement should be prepared at the earliest time prior to implementation of the proposed action, so that alternative courses of action with less severe environmental consequences can be considered.(Council on Environmental Quality, Guidelines for Preparation of Environmental Impact Statements, 40 C.F.R. § 1500.2(a)(1974).)

Appellees have not challenged the district court's determination that environmental impact statements were required for the federally funded projects in the airport expansion program.Nor have they pointed to any facts to support the finding that the state-funded north terminal and parking garage projects will have no significant environmental effect.Instead, they concede, and we agree, that the uncontradicted evidence at trial indicates the outgrowth of the Airport Development Plan involves a substantial increase in air passenger and vehicular traffic at the airport.Thus the denial of an interlocutory injunction as to these projects was based on an unsubstantiated and erroneous finding of fact.

For an action to be subject to NEPA, however, it must be shown to be "federal."Nothing in this record indicates that either the terminal or parking garage projects would be eligible for federal funds.We also conclude that the state-funded projects are not so closely interwoven with those receiving federal funds to make the entire airport development program the relevant "action" for NEPA purposes.

If facts in the record to support an affirmance appear with reasonable clarity, then "the Court of Appeals can, and, at least where the answer seems clear, should decide the issue."M.O.S. Corp. v. John I. Haas Co., 375 F.2d 614, 617(9th Cir.1967).It seems clear that we should resolve rather than remand undecided factual issues in suits for preliminary injunctions, where prompt action to avoid irreparable harm is obviously indicated.¹

Appellants contend that our factual determination of no federal involvement in the north terminal and parking garage projects would ignore evidence that these are integral and closely-connected parts of an overall program subject to NEPA review because federally funded in part.This conclusion, they claim, is supported by the district court's findings, by decisions of this court requiring EIS's for integrated programs rather than for their component parts, and by consideration of the purposes of NEPA.We disagree as to each contention.

In requiring an EIS only for those projects financed wholly or in part by federal funds, the district court impliedly found that none was required for the overall program before any work could proceed.Its order that a federal project EIS consider "the total development plan at the airport" is best viewed as an admonition that each project's impact should be evaluated in the context of the whole development scheme.²As such, the court's directive relates to the type of statement required for projects subject to NEPA, rather than to which will require an EIS initially.

Appellants contend that the EIS requirement was triggered by FAA approval of the airport layout plan or at least by tentative allocations of federal funds to projects included therein.

FAA approval of an airport layout plan does not require an EIS.(City of Boston v. Volpe, 464 F.2d 254(1st Cir.1972);City of Boston v. Brinegar, 6 E.R.C. 1961(D.Mass.1974).)The court in City of Boston v. Volpe distinguished those decisions requiring an EIS upon location approval under the federal highway statute from an airport layout plan approval.Whereas highway location approval constitutes "a decision, in the ordinary course final, that a federal aid highway is approved for a particular location," under the airport aid scheme the "single decision to fund or not to fund a project" comes at the tentative allocation rather than...