THE NATURAL LAWYER

**TRANSPORTATION RESEARCH BOARD**

**COMMITTEE ON ENVIRONMENTAL ISSUES IN TRANSPORTATION LAW (A4006)**

VOLUME 9, NUMBER 3 RICHARD CHRISTOPHER, EDITOR

APRIL, 2001 312/793-4838 PHONE

312/793-4974 FAX

E-MAIL ChristopherRA@nt.dot.state.il.us

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**SUPREME COURT UPHOLDS EPA'S**

**AIR QUALITY RULEMAKING POWERS**

**IN [WHITMAN V. AMERICAN TRUCKING]{.underline}**

Submitted by Scott Biehl, FTA

202/366-4063

On 27 February 2001 the U.S. Supreme Court handed down a momentous
decision in favor of EPA, environmentalists, and all Federal regulatory
agencies in *Whitman v. American Trucking Associations, Inc*., 531
U.S.\_\_\_\_, 2001 U.S. Lexis 1952 (2001): a challenge by a broad
coalition of business and industry to the 1997 amendments that tightened
the national ambient air quality standard (NAAQS) for ozone to 0.08
parts per million and set the NAAQS for particulate matter at 2.5
microns. The two highlights of the decision:

1\. The Court summarily reversed the ruling below by the U.S. Court of
Appeals for the D.C. Circuit that the NAAQS had been set in violation of
the nondelegable duties doctrine: a line of case law, dormant for fifty
years, holding that Congress cannot vest a regulatory agency with
inherently legislative powers absent an explicit set of "intelligible
principles" by which the agency can fashion a rulemaking. Writing for
the Court, Justice Scalia found that the discretion Congress vested in
USEPA per Section 109(b)(1) of the Clean Air Act, 42 U.S.C. § 7409(b)(1)
was "well within the outer limits of our nondelegation precedents" --
much to the relief of Federal regulators everywhere. Had the D.C.
Circuit's decision been affirmed, it would have severely constrained the
congressional practice of entrusting the executive branch to make
complicated judgments of science and engineering in its rulemakings.

2\. The Court summarily rejected the argument by business and industry
that EPA is obliged to conduct cost-benefit analyses in setting NAAQS.
Justice Scalia found that, "as a whole," the Clean Air Act
"unambiguously bars cost considerations from the ...process" of
ascertaining the levels of pollutants that will protect public health
with an "adequate margin of safety" (referencing the mandate of Section
109(b)(1)). Thus, the Court endorsed the approach whereby EPA considers
the costs of compliance not in setting the NAAQS themselves, but in
setting the implementation schedules for attainment of the NAAQS -- with
an eye toward driving the creation of new technology.

On a separate issue, however, the Court ruled in favor of the three
States---Ohio, Michigan, and West Virginia---that had joined the
industry petitioners: the Court struck down EPA's proposed
implementation of the amended ozone standards in non-attainment areas,
finding the agency's schedule unreasonable for having ignored the
classification and attainment dates set by Clean Air Act Sections 172
and 181. In short, the Court held that EPA impermissibly attempted to
give localities with the highest levels of ozone less time to reach
attainment than Congress had intended in enacting the statute. Thus, the
Court remanded the rule to the agency with instructions to "develop a
reasonable interpretation" of the statute in setting a revised schedule
of compliance for areas in non-attainment of the ozone NAAQS. Which
means, of course, that the actual enforcement of the ozone standard in
non-attainment areas remains in legal limbo until EPA can fashion a new
policy and schedule consistent with both the Court's decision and the
ambiguities inherent in the statute.

Commentary: In a vote slightly less convoluted than usual, all nine
justices joined in two parts of the four-part opinion; eight of them
joined in the third; seven of them joined in the fourth; and none of
them dissented from any of the four parts. It's surprising, perhaps,
that the Chief Justice tapped Justice Scalia to write the Court's
opinion, inasmuch as many academicians had expected Justice Scalia to
take the opportunity of *American Trucking* to lead a majority of the
conservative Court in an opposite philosophical direction, and overturn
the aggressive approach to environmental regulation charted by the
Clinton administration. Yet Justice Scalia's opinion is replete with
deference to both the congressional intent underlying the Clean Air Act
and the Clinton administration's argument against the revival of the
nondelegable duties doctrine. Only Justice Thomas expressed interest in
reviving the nondelegation doctrine, stating, in a concurring opinion,
that "on a future day" he would be willing to address the question of
whether delegation jurisprudence "has strayed too far from our Founders'
understanding of the separation of powers."

Only Justice Breyer expressed any sympathy for industry's argument on
the cost-benefit issue, stating, in a concurring opinion, that
"\[o\]ther things being equal, we should read silences or ambiguities in
the language of regulatory statutes as permitting, not forbidding"
cost-benefit analyses, albeit he did not find any such ambiguity in the
text of the Clean Air Act.

SUPREME COURT RULES MIGRATORY BIRD RULE INSUFFICIENT

**FOR FEDERAL WETLANDS JURISDICTION**

On January 9, 2001 the US Supreme Court, by a 5-4 vote, ruled that the
US Army Corps of Engineers rule which asserted jurisdiction over a
wetland solely if it was visited by migratory birds was not authorized
by Congress. The case involved an attempt to fill an abandoned sand and
gravel pit and turn it into a "balefill," a place which accepts bales of
garbage. The Corps had asserted jurisdiction under Section 404 of the
Clean Water Act and then denied the necessary permit. The Court avoided
the constitutional arguments about violating states' rights and
exceeding the reach of the commerce clause by holding that Congress
never intended to reach wholly intrastate waters that are not directly
connected to traditionally navigable waters. The Court was not moved by
the argument that Congress knew about the Corps interpretation and
failed to act to remedy the situation. *Solid Waste Agency of Northern
Cook County v. US Army Corps of Engineers,* 121 S. Ct. 675, No. 99-1178.

The Chief Counsels of USEPA and the Corps of Engineers responded quickly
with a joint memo which told both agencies to interpret the ruling
narrowly. The memo called for case by case determinations of whether
isolated wetlands are otherwise involved in interstate commerce or
whether the destruction of these wetlands could affect "waters of the
United States." A lengthy memo was prepared by Jon Kusler, Esquire on
behalf of the Association of State Wetland Managers, Inc. This memo,
which can be accessed at http://www.aswm.org, concludes that the impact
of the Court's decision is somewhat broader than the Chief Counsels'
memo would suggest. The memo recommends various regulatory and
legislative solutions to "fill the gaps" created by the decision. The
Corps is expected to issue further policy guidance soon.

# ELEVENTH HOUR EXECUTIVE ORDER ISSUED ON MIGRATORY BIRDS

On January 10, 2001 President Clinton issued an order directing all
Federal agencies whose actions could affect migratory birds to develop
memoranda of understanding with the US Fish & Wildlife Service
to"promote the conservation of migratory bird populations." (66 *Federal
Register* 3853, January 17, 2001). Each MOU is to show how it is going
to be carried out and accomplishments measured. Pursuant to the MOU,
each Federal agency must, among other things, "ensure that environmental
analyses of Federal actions required by NEPA...evaluate the effects of
actions and agency plans on migratory birds and species of concern." It
is not clear whether this Order is under review by the Bush
administration or whether it is being carried out.

**MARTA'S JOINT DEVELOPMENT**

**WITH FTA SEED MONEY**

# NOT "FEDERAL ACTION" PER NEPA

Submitted by Scott Biehl, FTA

202/366\--4063

Transit agencies have long been encouraged to pursue joint development
projects with private parties in connection with rail transit
stations---whether commercial, residential, industrial, or mixed use.
Indeed, the Federal Transit Administration exhorts its grantees to
pursue virtually any type of development that stands to enhance the
patronage on a rail line and generate new streams of revenue that can be
plowed back into transit operations. See, FTA's Notice of Policy at 62
[Fed. Reg]{.underline}. 12266-9 (14 March 1997).

Occasionally, however, joint developments are problematic insofar as the
Federal crosscutting requirements that might apply to these
transactions---NEPA, Section 4(f), and Section 106 included. Private
developers may be dissuaded from cutting deals with transit agencies for
fear of Federal "red tape." Project opponents may seek to invoke Federal
statutes and regulations to stop a project even where the cognizant
Federal agencies take the position that the Federal requirements are
inapplicable. Recent case in point: the Metropolitan Atlanta Rapid
Transit Agency's joint development with the Bell South Corporation at
the Lindbergh station on MARTA's North Line.

Background: FTA grants helped finance the original MARTA rail system,
including the Lindbergh station, which opened to service in 1984. In
1997, FTA awarded a \$1.6 million "livable communities" grant to MARTA
for acquisition of nine acres adjacent to the station; a feasibility
study for transit-oriented development at the site; and consulting
assistance to solicit proposals from prospective developers. Thus, the
scope of the FTA grant was one of conceptual work, only; the grant did
not envision any particular type or size of development. MARTA received
a number of promising responses, however, and in 1999, MARTA selected
the Bell South proposal: a mixed-use, multi-year development focused on
two 500,000 square foot office towers for the Bell South Corporation
with a third 200,000 square foot office building, 316 rental apartments,
120 residential condominiums, 285,000 square feet of retail shops, a
cinema, a childcare center, and several restaurants. At the same time,
at MARTA's request, FTA concurred in a lease of the FTA-funded real
estate, which comprised about one-fifth of the total 48 acres that MARTA
owns at the Lindbergh station, most all of which will be used for the
Bell South development.

Litigation: In July 2000 John Woodham, a member of the Gardens Hills
Civic Association, brought suit in U.S. District Court in Atlanta
seeking to enjoin the Bell South joint development, alleging that FTA
and MARTA had violated NEPA and Section 106 of the National Historic
Preservation Act by initiating "major Federal action" sans an
environmental impact statement and studies of the impacts of the
development on the Garden Hills neighborhood, a portion of which is on
the National Register of Historic Places; further, Mr. Woodham alleged
that defendants had violated the Common Rule in that the lease of the
FTA-funded acreage constituted a "disposition" of property under 49 CFR
§ 18.31, thus requiring repayment of the Federal grant funds. Both
defendants moved to dismiss, and the court denied the plaintiff's motion
for a temporary restraining order against the project.

On 21 November 2000 the court dismissed *Woodham v. FTA and MARTA*, 125
F. Supp. 2d 1106 (N.D. Ga.), with prejudice. The court agreed with the
defendants that FTA's simple act of concurrence in MARTA's lease of the
FTA-funded acreage was neither "Federal action" triggering NEPA nor a
"Federal undertaking" triggering Section 106, noting, inter alia, that
FTA had no control whatsoever over any material aspects of the Bell
South development.

Moreover, the court agreed that the lease of the FTA-funded acreage was
entirely permissible per the Federal Transit Act and the OMB and USDOT
rules on property disposition, noting, inter alia, that MARTA will
continue to use the property at issue for its originally authorized
purpose; that MARTA will maintain continuing use and control over the
property; and the use of the lease proceeds as program income is in
accord with FTA's Joint Development policy.

The plaintiff has filed a notice of appeal to the U.S. Court of Appeals
for the 11^th^ Circuit. Moreover, the plaintiff is attempting to bring a
fresh suit under the Clean Air Act, alleging that the Bell South
development will precipitate emissions exceeding those allowed under the
local air quality budget.

Commentary: FTA recognizes, certainly, that the applicability of various
crosscutting requirements such as NEPA, Davis-Bacon, third-party
procurement, and Buy America must be resolved on a case-by-case basis
for joint development projects that entail the transfer of real
property. See generally, the FTA capital program circular, C 9300. 1A
(10/1/98), Appendix B. FTA will work with grantees to determine whether,
and to what extent, such Federal requirements apply, particularly to any
private development, and the most appropriate procedures for compliance
with the requirements. Obviously, certain types of joint development
efforts will entail a risk of litigation, thus, it behooves a transit
agency and its developer-partners to submit their proposals for FTA
review as early as possible in the joint development process.

**HOMEOWNERS HAVE STANDING TO ENFORCE HISTORIC PRESERVATION MOA EVEN
THOUGH THEY ARE NOT SIGNATORIES**

This is not a transportation case, but it is worth noting because of its
holding on standing. The case involved a complaint against HUD and San
Francisco over the construction of some low income housing. The Federal
District Court held that the homeowners association lacked standing to
enforce a memorandum of agreement which the City had signed. On appeal,
the 9^th^ Circuit reversed. The Court held that the provision of the MOA
which provided that the parties were to consider any objection that came
from a member of the public and consult with the objector was written
for the benefit of entities such as Plaintiff. As a result, the
Plaintiff was a third party beneficiary and could sue the City for
violating this portion of the MOA. *Tyler v*. *Cuomo,* 236 F.3d 1124,
12/15/00.

**HUNTER WHO PICKS UP 1400 YEAR OLD HUMAN SKULL NOT GUILTY OF VIOLATING
ARCH. RESOURCES PROTECTION ACT**

When a hunter in Alaska noticed a partially exposed skull on a hillside,
he picked it up and took it home. He had no reason to know it was an
archaeological resource. It was not found in a known burial ground. He
knew it was old, but that was about all he knew. The hunter was
indicted, and the District Court ruled that taking a skull was *malum in
se*, and that no further knowledge was necessary for a conviction. On
appeal, the Court held that the defendant must know he is doing a
particular forbidden act. The government need not prove that the
defendant knew the act was unlawful. In this case, the skull could not
be determined to be an archeological artifact until it was examined by
experts. The Court acknowledged there is a widespread American tradition
of arrowhead and artifact collecting. *United States v. Lynch,* 233 F.
3^rd^ 1139 (9^th^ Cir. 2000)

### **BAY AREA ACTIVISTS BRING NOVEL**

**CLEAN AIR LITIGATION AGAINST**

#### SAN FRANCISCO MPO AND TRANSIT AGENCIES

Submitted by Scott Biehl, FTA

202/366-4063

On behalf of a broad coalition of community, transit, and environmental
activists, the Earth Justice Legal Defense Fund filed suit on 21
February 2001 in U.S. District Court in San Francisco against the local
metropolitan planning organization and two bay area transit agencies,
alleging that their failure to carry out a transit-oriented
transportation control measure ("TCM") originally adopted in 1982
constitutes a continuing violation of the Clean Air Act: the suit is
Bayview Hunters Point Community Advocates, et al. v. Metropolitan
Transportation Commission ("MTC"), San Francisco Municipal Railway
("Muni"), and Alameda-Contra Costa Transit District ("AC Transit"),No. C
01 0750, North. Dist.CA.

In short, the plaintiffs allege that the defendants have reneged on
their commitment in the Bay Area Air Quality Plan to increase ridership
on public transportation by 15 percent over 1983 levels; despite a 30
percent population increase since that time, the ridership on Muni and
AC Transit has stagnated.

This seems to be the first suit of this ilk anywhere in the United
States insofar as an explicit linkage between an air quality TCM and the
level of effort actually expended to improve transit patronage.

##### 

##### Apparently, MTC intends to argue collateral estoppel; specifically, that this issue was litigated in a previous suit a decade ago*, Citizens for a Better Environment v. MCT, EPA, et al.,* resulting in a ruling in 1992 which allowed MTC to demonstrate that the required mobile source emissions reductions have been achieved through other, non-transit means. For its part, however, AC Transit has already reached a settlement with the plaintiffs and agreed to develop an explicit plan for increasing its ridership. 

# 48 COUNT COMPLAINT FILED AGAINST LEGACY PARKWAY IN UTAH

Submitted by Helen Mountford, FHWA

Phone: 415/744-2642

Helen.Mountford@fhwa.dot.gov

On January 31, 2001, the Sierra Club filed a lawsuit challenging the
Legacy Parkway in Salt Lake and Davis Counties, Utah. An earlier
lawsuit, *Utahns for Better Transportation v. USDOT, et al.* challenges
the same project. Defendants are USDOT, FHWA, FTA, and the Corps of
Engineers (COE). The project is totally State funded, but FHWA is
granting Interstate access to I-215 and I-15.

The project is a 14 mile four lane controlled access highway extending
north from I-215 in North Salt Lake City, UT, to the junction of I-15
and US 89 near Farmington City, UT. The project will be roughly parallel
to I-15 and will be located west of I-15 between I-15 and the Great Salt
Lake. It is a design/build project.

The 48 causes of action allege numerous violations of the Administrative
Procedures Act and the Clean Air Act on the part of USDOT, FHWA, and FTA
in approvals of Conformity Determinations, Long Range Plans (LRP's), and
Transportation Improvement Programs (TIP's) in the Salt Lake City area
dating back to 1998. Numerous violations of NEPA, the APA, and Section
4(f) are alleged on the part of USDOT, FHWA, and the COE in the approval
of a FEIS and the issuance of ROD's for the project. In addition
numerous violations of the CWA are alleged against the COE for its
issuance of a Section 404 permit for the project.

The State DOT is not named as a Defendant, but the Governor of Utah
announced he has directed the Utah Department of Transportation to move
to intervene. As of March 1, the State's motion to intervene had not
been filed.

Plaintiff seeks to have the Conformity Determinations dating back to
1998 and the corresponding LRPS and TIP's declared invalid and an
injunction against any capacity-expanding highway project in the Wasatch
Front region. Plaintiff also seeks preliminary and permanent injunctions
against the Legacy Parkway Project until both a SEIS and a Programmatic
EIS are approved as well as costs and attorney fees. *Sierra Club v.
USDOT, et al.,* (DC UT No. 1:01CV0014-J)

# NEPA/4f SUIT FILED OVER INTERCHANGE RECONSTRUCTION

**PROJECT IN UTAH**

Submitted by Helen Mountford, FHWA

Phone 415/744-2642

Helen.Mountford@fhwa.dot.gov

On December 28, 2000 a case was filed in the US District Court for the
District of Utah. The case alleges that FHWA violated NEPA and Section
4(f) when it approved an EA/FONSI for the 11400 South interchange with
I-15 in South Salt Lake County, UT. Plaintiffs claim FHWA "simply went
through the motions to justify the already defined and agreed upon
decision to construct the Project," and are seeking an injunction,
costs, and attorney fees. Among other things, Plaintiffs contend the
traffic model used by FHWA and UDOT is fundamentally flawed and
scientifically unreliable. *Davis, et al. v. Slater, et al.,* No. 2:00CV
09985

**SUIT FILED AGAINST WOODROW WILSON BRIDGE CONSTRUCTION IN D.C. AREA
OVER ENDANGERED SPECIES ACT ISSUES**

A group in Washington, D.C. called the National Wilderness Institute has
filed suit against five federal agencies for failing to enforce the
Endangered Species Act when they approved some projects along the
Potomac River. The suit appears to be based on the position that the
Government enforces the Endangered Species Act when it harms someone
else to do so but ignores the same laws when "the bureaucrats in
Washington" need to get to work. For details, go to http://www.nwi.org.

# CHAIR'S CORNER

Submitted by Helen Mountford

Helen.Mountford \@fhwa.dot.gov.

Our summer workshop in Boston is shaping up to be an exciting time for
our committee. We will be presenting two sessions. Marilyn Newman is
presenting a panel on the various issues involved in development of the
Charles River crossing and Peggy Foley is presenting a panel on the
redevelopment of a superfund site into a multi-modal transportation hub.
Both sessions promise to be spectacular. Many thanks to Marilyn and
Peggy for volunteering to put those sessions together.

And, many many thanks to our former chair, Rich Christopher, for his
efforts in getting this newsletter out. Please continue to provide him
with the information he needs.

I look forward to seeing you in Boston.

# NEXT COPY DEADLINE IS JUNE 15, 2001

Please get your written submissions for the July, 2001 edition of *The
Natural Lawyer* in to the editor by 5:00 p.m. central time on June 15,
2001. If you use the mail, please send to Rich Christopher, Illinois
DOT, 310 S. Michigan, Room 1607, Chicago, IL 60604. If you use the FAX,
send to 312/793-4974 and use a large typeface so we will be able to
decipher what you are trying to say. E-mail is available at
ChristopherRA@nt.dot.state.il.us