Sierra Club v. Atlanta Regional Com'n, CIV.A.1:01-CV0428BBM.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
Citation171 F.Supp.2d 1349
Docket NumberNo. CIV.A.1:01-CV0428BBM.,CIV.A.1:01-CV0428BBM.
PartiesSIERRA CLUB et al., Plaintiffs, v. ATLANTA REGIONAL COMMISSION et al., Defendants.
Decision Date15 June 2001
171 F.Supp.2d 1349
SIERRA CLUB et al., Plaintiffs,
No. CIV.A.1:01-CV0428BBM.
United States District Court, N.D. Georgia, Atlanta Division.
June 15, 2001.

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Stephen Wesley Woolf, Southern Environmental Law Center, Atlanta, GA, Robert E. Yuhnke, phv, Boulder, CO, J. David Farren, phv, Southern Environmental Law Center, Chapel Hill, NC, for plaintiffs.

William R. Bassett, Harvey M. Koenig, Mikel Lemaul Purcell, Smith Bassett Purcell & Koenig, Diane L. DeShazo, State of Georgia Law Department, Daniel M. Formby, Rene Octavio Lerer, Cathy A. Cox-Brakefield, Thurbert E. Baker, Alan Gantzhorn, Office of State Attorney General, Patricia T. Barmeyer, King & Spalding, Atlanta, GA, Richard H. Deane, Jr., U.S. Attorney, Julia B. Anderson, Office of United States Attorney, Northern District of Georgia, Atlanta, GA, John C. Cruden, Norman L. Rave, Jr., U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, James C, Thomason, III, Federal Highway Administration, Atlanta, GA, Robert Clinton Chambers, George Daryl Wenick, Smith Currie & Hancock, Atlanta, GA, David M. Friedland, Gus B. Bauman, David M. Williamson, Beveridge & Diamond, Washington, DC, for defendants.


MARTIN, District Judge.

This action seeking injunctive and declaratory relief for violations of, inter alia, the Clean Air Act, is currently before the court on the plaintiffs' motion for preliminary injunction [Doc. No. 15-1] and two oral motions to strike brought by each group of opposing parties.

Factual and Procedural Background

The plaintiffs, four public interest organizations1 with members purportedly affected by the air quality in the Atlanta metropolitan area, filed this action on February 13, 2001 against federal, state and regional transportation agencies and officers2 for declaratory and injunctive relief. The suit challenges the agencies' adoption, approval and funding of the 2025 Regional Transportation Plan ("2025 RTP"), the 2001-03 Transportation Improvement Plan ("2001-03 TIP"),3 and the associated conformity

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determinations under section 176(c) of the Clean Air Act ("CAA") for Atlanta's ozone nonattainment area. The plaintiffs allege that the defendants are seeking to advance several significant regional highway projects in the Atlanta area, despite the region's existing ozone nonattainment.4 The plaintiffs further allege that in recent years the defendants employed several tactics to adopt, fund and implement the 2025 RTP and 2001-03 TIP without following the proper procedures and guidelines.

The 1990 amendments to the CAA required that the Atlanta metropolitan area attain the NAAQS for ozone by November 1999 because Atlanta is classified as a "serious" ozone non-attainment area under 42 U.S.C. § 7511(a). To meet this deadline, the state of Georgia was required, pursuant to 42 U.S.C. § 7511a, to submit to EPA for approval a SIP that provided for attainment of the standard by the attainment date. In 1996, Georgia proposed to the EPA a "Reasonable Further Progress SIP" ("RFP SIP") that required a 9% reduction in NOx emissions by 1999.5 On March 18, 1999, EPA approved the RFP SIP. To meet the 9% reduction, the RFP SIP estimated motor vehicle emissions for NOx and required that emissions reductions would not exceed 214.77 tons per day ("tpd"). Thus, the plaintiffs allege that the Atlanta area was required by the approved RFP SIP to meet the reduced emission of 214.77 tpd of NOx by November 1999. It is undisputed that Atlanta has not, as of this date, met the reduced emission rate for the attainment deadline of November 1999.

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The plaintiffs allege that, despite the Atlanta area's failure to meet the 1999 ozone attainment deadline, the defendants have ignored the RFP SIP mandate and have attempted to propose and fund several new highway projects through illegal means. The plaintiffs assert that these new highway projects will increase automobile capacity and thereby contribute to more NOx emissions in violation of the RFP SIP. The plaintiffs allege the defendants first created a "grandfather" loophole for certain highway projects that had received previous approvals to approve funding of 61 capacity expansion highway projects. However, the plaintiffs state that the "grandfather" loophole was successfully challenged nationally, through a petition for review filed in the District of Columbia Circuit. The challenge resulted in a June 1999 settlement with the defendants, resulting in a deferral of 44 of these projects.

However, the plaintiffs assert that in early 2000 the defendants again sought to advance new capacity-increasing highway projects through the proposed 2025 RTP and 2001-03 TIP. On March 22, 2000, defendant ARC, as the MPO in this action, adopted the current plan, program, and conformity determination, which were submitted to the USDOT on April 4, 2000. The conformity analysis was based on a MVEB contained in a new attainment SIP submitted by the State of Georgia in October of 1999. Although EPA has not taken final action on that submission, EPA found the emissions budget "adequate" for conformity purposes on February 15, 2000. The proposed SIP provided a budget goal of 224 tpd of NOx to be attained by the year 2003.

The plaintiffs petitioned the Eleventh Circuit for a review of the EPA's decision (finding the new SIP adequate) as illegally extending until 2003 the mandatory 1999 RFP SIP deadline for Atlanta to meet the NAAQS. On July 18, 2000, the Eleventh Circuit issued a stay of the use of the revised MVEB for transportation planning purposes and enjoined federal approval of the 2025 RTP and 2001-03 TIP, which had already been approved by local and state agencies. In December 2000, the MVEB challenge was settled through an agreement between the plaintiffs, the EPA, and the State of Georgia. Pursuant to the settlement, the Eleventh Circuit remanded the EPA's decision, Georgia withdrew the MVEB, and the EPA withdrew its acceptance of the MVEB for 2003.

Because the Eleventh Circuit stayed the newly proposed SIP, it is the plaintiffs' position that the defendants were required to find conformity with the MVEB in the RFP SIP. Plaintiffs argue, however, that rather than conform to the RFP SIP, the defendants approved the 2025 RTP and 2001-03 TIP (on the theory that motor vehicle emissions need not comply with the MVEB in the RFP SIP until 2005) and that they did so without notice or opportunity for public comment. The plaintiffs state that the newly approved date of MVEB compliance would allow the advancement and completion of all new air quality-degrading highway project phases despite the alleged failure of the 2025 RTP to conform to the RFP SIP at any time until 2005, and the failure of the 2001-03 TIP to ever conform to the RFP SIP.

New federal funds for the highway projects in the 2001-03 TIP became available at the beginning of the fiscal year on October 1, 2000. Prior to that date, the plaintiffs state they notified the defendant agencies that they were preparing to challenge the approvals of the 2001-03 TIP, 2025 RTP and related conformity determinations. The plaintiffs allege that the defendants first sought to negotiate with the plaintiffs, but after three months broke off negotiations in January 2001 over issues of

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enforceability. The plaintiffs subsequently filed the suit on February 13, 2001, which seeks a declaratory judgment to find that the defendants have violated numerous provisions of the CAA and the APA. In addition to declaratory relief, the plaintiffs also seek to vacate the defendants' actions to fund the 2001-03 TIP and to enjoin the advancement of the 2025 RTP and 2001-03 TIP until these plans are revised to fully conform with the RFP SIP attainment level.

On April 5, 2001, the plaintiffs moved for a preliminary injunction under Fed. R.Civ.P. 65(a) to enjoin the defendants from "engaging in, supporting in any way or providing financial assistance for, licensing or permitting, or approving any of these projects until further order of this Court and unless and until the violations of law set forth in the Complaint have ceased." The motion is based only on what the plaintiffs refer to as the "blatant statutory violations" alleged in Counts I, II, X and XI of the complaint.6 After the motion was fully briefed, a hearing on the motion was held before the court on June 5 and 6, 2001. During the hearing, the plaintiffs and each group of defendants (ARC, state defendants and federal defendants) presented their arguments and the court heard testimony from Thomas L. Weyandt, Jr., Director of Comprehensive

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Planning of ARC and the Honorable Roy E. Barnes, Governor of the State of Georgia. Both Mr. Weyandt and Governor Barnes testified on behalf of the defendants. At the conclusion of the hearing, the court orally ruled from the bench and denied the plaintiffs' motion. The court now issues this written order to detail its findings.

Motion for Preliminary Injunction

A district court may grant injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest. See Siegel v. Lepore, 234 F.3d 1163, 1176 (11th Cir.2000) (en banc) (per curiam); McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.1998); All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir.1989). In the Eleventh Circuit, "[a] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly establishe[s] the `burden of persuasion'" as to each of...

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  • Sierra Club v. Atlanta Regional Com'n, CIV.A. 101CV0428BBM.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • January 18, 2002 large part from the court's previous order dated June 15, 2001 which is reported at Sierra Club v. Atlanta Regional Commission, 171 F.Supp.2d 1349 (N.D.Ga.2001), and the recent Fourth Circuit case of 1000 Friends of Maryland v. Browner, 265 F.3d 216 (4th Cir.2001) which provides a thorou......

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