State of Illinois ex rel. Scott v. Butterfield, 74 C 2410.

• Decision Date: 16 June 1975
• Docket Number: No. 74 C 2410.,74 C 2410.
• Citation: 396 F. Supp. 632
• Parties: STATE OF ILLINOIS ex rel. William J. SCOTT, Attorney General, and People of the State of Illinois, ex rel. William J. Scott, Attorney General, Plaintiffs, v. Alexander P. BUTTERFIELD, Administrator, Federal Aviation Administration, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

396 F. Supp. 632

STATE OF ILLINOIS ex rel. William J. SCOTT, Attorney General, and People of the State of Illinois, ex rel. William J. Scott, Attorney General, Plaintiffs, v. Alexander P. BUTTERFIELD, Administrator, Federal Aviation Administration, et al., Defendants.

No. 74 C 2410.

United States District Court, N. D. Illinois, E. D.

June 16, 1975.

COPYRIGHT MATERIAL OMITTED

William J. Scott, Atty. Gen. of Ill., Chicago, Ill., for plaintiff.

James Michael Keane, Chicago, Ill., for Village of Schiller Park, intervenor.

Arnold Kanter, U. S. Atty., Chicago, Ill., for defendants.

MEMORANDUM OPINION

Motions to Intervene and Motion to Dismiss

MAROVITZ, District Judge.

I. Background

Since the passage of the National Environmental Policy Act¹ on January 1, 1970, there has been a plethora of litigation but a dearth of consensus as to the resolution of several issues regarding the construction of said Act. Under the Act, all agencies of the Federal Government are to include in their consideration and development of major federal actions having significant effect on the environment a "detailed statement by the responsible official" on five aspects of the proposed action. They are: "(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of longterm productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented." 42 U.S.C. § 4332 (2)(C).

This detailed statement is to be issued only after the "responsible federal official" has obtained input from every federal agency which has "jurisdiction by law or special expertise with respect to any environmental impact involved." Id. In addition, comments and views of appropriate state and local agencies are to be solicited and appended to the statement. Upon its completion, this report is to be "made available to the President, the Council on Environmental Quality and to the public . . ., and it is to accompany the proposal through the existing agency review processes . . . ." Id. Finally, the Act provides that these provisions shall be applied by all Federal agencies to the "fullest extent possible." 42 U.S.C. § 4332 (1).

Plaintiffs, the State of Illinois and the People of the State of Illinois, seek declaratory and injunctive relief with regard to certain actions of officers and employees of the Federal Aviation Administration ("F.A.A.") and the Civil Aeronautics Board ("C.A.B.") which have allegedly resulted in the uncontrolled increase in aircraft operations, noise, and air pollutants at O'Hare International Airport in violation of the National Environmental Policy Act ("N.E.P.A.") and other provisions of the law.

Plaintiffs claim that excessive aircraft noise interferes with human speech, sleep and other normal and reasonable activities of the residents and inhabitants of the area adjacent to and surrounding O'Hare Airport. Plaintiffs further allege that said excessive noise deprives plaintiffs of the full, normal and reasonable enjoyment, use and value of their properties.

Plaintiffs make similar claims as to the degradation of air quality caused by excessively large quantities of pollutants both from aircraft emissions and from other mobile air-polluting sources — to wit: that the resulting degradation affects the health, safety and welfare of citizens of the State of Illinois who reside, work, visit, or otherwise frequent the area adjacent to the Airport, and that the resulting degradation deprives the State of Illinois and the citizens of the State of the full or reasonable use of property owned by them which is located in the areas adjacent to and surrounding the Airport.

The Complaint

The action is brought in six counts, four of which concern the National Environmental Policy Act. Count I charges that the F.A.A. defendants have failed to prepare an impact statement for certain individual actions as required by the N.E.P.A. The primary allegations read:

Subsequent to January 1, 1970, Defendants Butterfield and Cyrocki, or their predecessors in office, have undertaken the following actions:

a) Pursued a policy of unlimited growth in air traffic at the Airport, resulting in a substantial increase in the daily number of aircraft operations at the Airport;

b) Undertaken and completed the installation of various flight control, navigational and other equipment which has increased the capacity of the Airport to accommodate additional aircraft;

c) Authorized and directed the use by aircraft of a newly constructed runway and taxiway;

d) Established, altered and otherwise changed or controlled the standard flight paths and patterns of aircraft arriving at and departing from the Airport;

e) Failed to enact regulations which would reduce or control the emission of noise and other pollutants from aircraft arriving at, departing from, or moving about the Airport; and,

f) Undertaken or completed various other actions which have, or may have, adverse environmental impacts upon the areas adjacent to and surrounding the Airport. Complaint, par. 32

Count II claims that these actions, considered collectively, also constitute a "major federal action significantly affecting the quality of the human environment" for which defendants Butterfield or Cyrocki, or their predecessors in office, were required to prepare a detailed environmental impact statement under the provisions of 42 U.S.C. § 4332 (2)(C).²

Count III claims that the F.A.A. defendants have failed to consider environmental factors and appropriate alternatives to their actions as required by the N.E.P.A., and particularly Sections 102(2)(A), 102(2)(B), and 102(2)(D) therein.³

Count IV claims that the F.A.A. defendants have failed to comply with the notice and publication requirements of the Administrative Procedure Act in their promulgation of flight rules and policies.

Count V alleges that the C.A.B. defendants have failed to prepare an impact statement for certain of their actions as required by the N.E.P.A. Plaintiffs aver that subsequent to January 1, 1970, the C.A.B. defendants, or their predecessors in office, have, as a matter of policy, established O'Hare as a central airport for national and international commerce, and that in furtherance thereof these defendants have authorized numerous commercial air carriers to engage in air transportation at the Airport, resulting in a significant increase in the number of aircraft utilizing the Airport and a significant increase in the amount of noise and air pollutants emitted into the outdoor atmosphere of the area adjacent to and surrounding the Airport.

Finally, Count VI claims that all the defendants have unlawfully performed actions which have created a nuisance in the State of Illinois.

Though the relief sought varies from count to count, the overall gist of plaintiffs' prayer seeks a declaratory judgment that defendants' actions which result in an increase in the number of aircraft arriving at and departing from O'Hare are unlawful due to the absence of an environmental impact statement and due to a failure to abide by the Administrative Procedure Act, and further seeks an injunction in the increase of aircraft operations pending compliance with § 4332(2)(C) of the National Environmental Policy Act of 1969.

II. Motions to Intervene

Four local governments and one environmental organization have applied to intervene as plaintiffs in this action. Fed.Rules Civ.Proc. Rule 24, 28 U.S.C. They are the City of Park Ridge, the City of Des Plaines, the Village of Niles, the Village of Schiller Park, and the National Organization to Insure a Sound-controlled Environment. Rule 24 (b), the content of which deals with permissive intervention, states, "Upon timely application anyone may be permitted to intervene in an action: . . . (2) when an applicant's claim or defense and the main action have a question of law or fact in common . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties." Each applicant-intervenor has filed a complaint substantially identical to the complaint of the State of Illinois, and the intervenors are amenable to the submission of joint pleadings and briefs, reserving the right to file a supplemental brief to that filed by the State of Illinois and the People of this State. Each intervenor also reserves the right to represent interests of its citizens that may be different from the interests of the State of Illinois should this cause reach trial. The applications to intervene pursuant to Rule 24(b) are granted. We do not decide whether these parties may intervene as of right under Rule 24(a).

III.

Defendants move to dismiss this suit pursuant to Fed.Rules Civ.Proc. Rules 12(b)(1), 12(b)(6), and 12(b)(7), 28 U.S.C.⁴

Jurisdiction over Subject Matter

Jurisdiction herein is invoked pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1332 (diversity), 28 U.S.C. § 1361 (mandamus), 28 U.S.C. § 1337 (commerce), and 5 U.S.C. §§ 701-706 (Administrative Procedure Act). Defendants deny this court's jurisdiction under the above-enumerated statutes, and further argue that jurisdiction is barred by the doctrines of sovereign immunity and failure to exhaust remedies.⁵

In Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F.Supp. 238 (M.D.Pa.1970), aff'd, 454 F.2d 613 (3d Cir. 1971), an action was brought to enjoin a planned relocation of a highway and to require upgrading and repairing of an existing roadway. The claim was grounded, in part, on plaintiffs' contention that defendants were in violation of the N.E.P.A. In a footnote the district court said, ". . . Jurisdiction clearly exists...