Piedmont Heights Civic Club, Inc. v. Moreland

• Decision Date: 20 February 1981
• Docket Number: No. 80-7414,80-7414
• Citation: 637 F.2d 430
• Parties: , 11 Envtl. L. Rep. 20,257 PIEDMONT HEIGHTS CIVIC CLUB, INC., et al., Plaintiffs-Appellants, v. Thomas D. MORELAND et al., Defendants-Appellees. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 430

637 F.2d 430

16 ERC 1010, 11 Envtl. L. Rep. 20,257

PIEDMONT HEIGHTS CIVIC CLUB, INC., et al., Plaintiffs-Appellants, v. Thomas D. MORELAND et al., Defendants-Appellees.

No. 80-7414.

United States Court of Appeals, Fifth Circuit.

Unit B

Feb. 20, 1981.

John R. Myer, Edgar A. Neely, Jr., Atlanta, Ga., for plaintiffs-appellants.

Anne S. Rampacek, Peter Kontio, Sidney O. Smith, Jr., Atlanta, Ga., for Central Atlanta Progress, Inc., et al., amicus curiae.

William L. Harper, U. S. Atty., Curtis Anderson, Robert J. Castellani, Asst. U. S. Attys., Arthur K. Bolton, Atty. Gen., Roland F. Matson, Asst. Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Don

A. Langham, First Asst. Atty. Gen., Marion O. Gordon, William D. Mallard, Jr., Sp. Asst. Attys. Gen., Atlanta, Ga., Kenneth N. Weinstein, U. S. Dept. of Transp., Washington, D. C., for defendants-appellees.

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

Before MORGAN, ANDERSON and THOMAS A. CLARK, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

The primary issue in this appeal is whether the district judge abused his discretion in denying the plaintiffs' motion for a preliminary injunction. We hold that the judge acted within his discretion in finding that the plaintiffs had not demonstrated a likelihood of success on the merits and that the harm to the plaintiffs was outweighed by the harm to the defendants and the public interest. We therefore affirm the decision of the district court in favor of the defendants.

Plaintiffs-appellants in this appeal (hereinafter referred to as "plaintiffs") are two civic associations, Piedmont Heights Civic Club, Inc. and Atlanta Coalition on the Transportation Crisis, Inc., and four individuals that brought this action in the United States District Court for the Northern District of Georgia against the Georgia Department of Transportation and its Commissioner of Transportation (hereinafter referred to as "State defendants") as well as the United States Department of Transportation, the Secretary of Transportation, the Federal Highway Administration, and the Federal Highway Administrator (hereinafter referred to as Federal defendants"). Plaintiffs sought to enjoin construction of several projects to widen interstate highways in and around Atlanta, Georgia, claiming inter alia ¹ that Federal defendants had not complied with the requirements of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq. ²

Plaintiffs filed their original complaint on May 30, 1979, challenging the adequacy of the Final Environmental Impact Statements ("EISs") approved for three segments of highway improvements: (1) the Downtown Connector (that segment of the highway where I-75 and I-85 become one highway from Williams Street running north to the Brookwood interchange), (2) Brookwood (that segment of the highway where I-75 and I-85 join, running north on I-85 to Lenox Road), and (3) DeKalb I-85 (that segment of I-85 running north of Lenox Road to I-285, the perimeter expressway). The district court held evidentiary hearings to determine whether to grant a preliminary injunction and afterwards the parties filed supplemental briefs. While awaiting decision plaintiffs filed three renewed motions to enjoin specific actions of the defendants. None of these motions were granted. On May 23, 1980, almost a year after the filing of the original complaint, the district judge denied plaintiffs' original motion for preliminary injunction on the grounds that plaintiffs had "failed to demonstrate a strong likelihood that they (would) prevail on the merits" and any harm to the plaintiffs was "outweighed by the harm done to the defendants as well as the public interest." The district court denied plaintiffs' motion for a stay pending appeal, and this court affirmed that denial but granted an expedited appeal. ³

I.

The projects challenged in this case are three of seven projects currently planned by the State and Federal defendants to alleviate the serious traffic problems in Atlanta, Georgia, and prepare for transportation needs of the future. The existing highway system in Atlanta includes two intersecting north-south expressways that form an hour-glass configuration through the city. Interstate 75 (I-75) runs northwest to southeast through the metropolitan area and Interstate 85 (I-85) runs northeast to southwest. This highway configuration along with most of the two-county area of Atlanta is encircled by a perimeter highway, Interstate 285 (I-285). Within the perimeter near the downtown business district, I-75 and I-85 converge and continue as one highway for several miles. This section of the interstate highway system within Atlanta is commonly referred to as the Downtown Connector. ⁴

The first highway improvement project, the Downtown Connector Improvements Plan, was approved by the Federal Highway Administration ("FHWA") in September of 1971. This plan included the widening from six lanes to eight lanes of the Downtown Connector where I-75 and I-85 are one highway. Construction on this highway segment was temporarily delayed, however, because of a regional planning process which was about to commence. This planning process was required by 23 U.S.C. § 134 and other federal statutes and regulations pertaining to urban transportation in order to receive federal funding for specific transportation projects. The purpose was to develop plans and programs for transportation needs with a view toward comprehensive long-range plans. The planning process was undertaken by the Atlanta Regional Commission ("ARC") as the Governor's designated Metropolitan Planning Organization ("MPO"). ⁵ In 1975 the ARC issued its Regional Development Plan ("RDP"), a system plan which identified, among other things, the transportation needs for the Atlanta area through the year 2000. The identified needs included an extensive mass transit system, new highways, and several highway widenings, including the ones at issue in this case. The ARC also prepared a Transportation Improvements Program which indicated the priority of needs for the near future and projects for the following year.

Based on the recommendations in the RDP the State defendants proposed improvements for the Brookwood Interchange, the highway section where I-85 and I-75 merge north of the Downtown Connector, and in 1975 a Draft EIS for the Brookwood Improvement Plan was circulated and approved. This project included redesigning the Brookwood Interchange and building a six-lane expressway (actually eight lanes in width) running north to Lenox Road parallel with the existing four-lane expressway. In the following year the State defendants proposed the widening from four to eight lanes of DeKalb I-85 north of Lenox Road to I-285, the perimeter expressway. A Draft EIS was circulated and approved. In 1977 the State defendants proposed certain changes in the project design of the Downtown Connector which included adding two high occupancy vehicle (HOV) lanes to the already approved eight-lane highway. After reviewing the State defendants' comprehensive reevaluations of the project with these changes, the FHWA approved the project, finding no significant changes in the social, economic and environmental effects that would require the preparation of a supplemental EIS. Final EISs for both the Brookwood Improvement Plan and the DeKalb I-85 Improvement Plan were approved by the Secretary of Transportation in 1978, and this lawsuit was brought in May of the following year.

II.

The standard to be applied by this court on the appeal of the denial of a preliminary injunction is abuse of discretion. Vision Center v. Opticks, Inc., 596 F.2d 111 (5th Cir. 1979). The district judge's decision should be considered in light of the four factors required for the granting of a preliminary injunction as set out in Canal Authority v. Callaway, 489 F.2d 567 (5th Cir. 1974). The four requirements are: (1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) the threatened injury to plaintiff must outweigh the threatened harm the injunction may do to defendant, and (4) granting the preliminary injunction will not disserve the public interest. Id. at 572. The plaintiff bears the burden of persuasion on all four factors in order to be entitled to the extraordinary relief of a preliminary injunction. In the case at bar the issue of likelihood of success on the merits is particularly significant ⁶ and thus will be considered first. The primary issues on the merits are whether the rapid transit system should have been considered as an alternative in the EIS and whether the highway improvement plans were improperly segmented to avoid adequate consideration of environmental effects.

A. Alternatives.

Plaintiffs challenge the adequacy of the EISs for the Brookwood Improvements Plan and the Downtown Connector Improvements Plan ⁷ on the ground that the statements did not consider the Metropolitan Atlanta Rapid Transit Authority (MARTA) rail system as an alternative to the highway expansion. Section 102(2) (C)(iii) of NEPA ⁸ requires a federal agency in assessing the environmental effects of a project to discuss alternatives to the proposed action. The purpose of the alternatives requirement is to assure that the government agency as a decision-making body has considered methods of achieving the desired goal other than the proposed action. Sierra Club v. Morton, 510 F.2d 813, 815 (5th Cir. 1975). Consideration of other realistic possibilities for action forces an agency to consider the environmental effects of a project and evaluate those effects against the effects of alternatives. NEPA, however, fails to specify what "alternatives" must be considered. The concept is limited by federal regulation to reasonable alternatives, and requires...