The opinion of the court was delivered by: RICHEY
The case is currently before the Court on defendants' motion for summary judgment, or in the alternative to dismiss, on all four counts of plaintiffs' complaint. Plaintiffs have opposed defendants' motion and have filed cross-motions for summary judgment on three of the four counts of their complaint. As to three of the counts, the parties assert, and the Court agrees, that there are no material facts in issue.
The Federal-aid Highway Act, 23 U.S.C. §§ 101 et seq., establishes a cooperative federal-state program for the development of safe, efficient, and economical roads across the country. Under the Act, states may obtain federal funds to subsidize the planning, design and construction of highways. State highway projects funded under the Act are subject to federal supervision through which the government seeks to insure that the highways built meet acceptable safety standards. In this regard, the Secretary must meet various safety-related responsibilities in supervising state highway programs under the Act.
Section 116 of the Federal-aid Highway Act of 1973, 23 U.S.C. § 117, altered the federal-aid highway program by providing an alternative procedure through which the Secretary can discharge his safety-related responsibilities. Rather than perform the detailed review of state highway projects previously required by the Act, the Secretary can, under 23 U.S.C. § 117, accept "certification" from a state if he finds that its projects "will be carried out in accordance with State laws . . . and standards establishing requirements at least equivalent to those contained in, or issued pursuant to, this title." 23 U.S.C. § 117(a).
This alternative procedure established by 23 U.S.C. § 117 is known as "Certification Acceptance" (CA).
Pursuant to 23 U.S.C. § 117(c), defendant Tiemann promulgated Certification Acceptance regulations on May 8, 1974. The regulations, now published at 23 C.F.R. § 640, were effective upon issuance and were published in the Federal Register on May 15, 1974. 39 Fed. Reg. 17309 (1974). The regulations were promulgated without notice of proposed rulemaking, opportunity for public participation or delay in effective date, as normally required by the rulemaking provision of the Administrative Procedure Act (APA), 5 U.S.C. § 553, because, according to the agency, the regulations related to a federal grant program and were therefore exempt from the APA under 5 U.S.C. § 553(a)(2). The agency did, however, provide an opportunity for post-issuance comments on the regulations, and the plaintiff Center for Auto Safety took advantage of that opportunity by filing comments and engaging in discussions concerning Certification Acceptance procedures in the months following the promulgation of the regulations.
On April 15, 1974, a month before official publication of the Certification Acceptance regulations, the state of Georgia submitted a plan for approval under 23 U.S.C. § 117. On September 3, 1974, after review at the agency level, defendant Tiemann accepted Georgia's certification, subject to certain conditions. Georgia thus became the first state to have an approved Certification Acceptance plan.
Plaintiffs' challenge to the administrative action described above is four-pronged. First, plaintiffs challenge the Certification Acceptance regulations on the ground that they were not promulgated in compliance with the rulemaking provision of the Administrative Procedure Act (APA), 5 U.S.C. § 553. Second, plaintiffs claim that AASHTO is an advisory committee within the meaning of the Federal Advisory Committee Act, 5 U.S.C. App. I, and that the meetings between AASHTO and the agency were therefore held in violation of the procedural requirements of that Act. Third, plaintiffs challenge the agency's approval of Georgia's Certification Acceptance plan on the ground that the approval constituted rulemaking by the agency which was not performed in compliance with the APA, 5 U.S.C. § 553. Finally, plaintiffs claim that the acceptance of Georgia's certification was a clear error of judgment and contrary to the mandate of 23 U.S.C. § 117, and they seek judicial review of that acceptance.
II. PLAINTIFFS HAVE STANDING TO MAINTAIN THIS ACTION.
Before turning to the merits, the Court notes that plaintiffs clearly have standing to maintain the instant action. The pleadings and affidavits submitted by the plaintiffs are sufficient to satisfy the standing test set out by the Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972); United States v. S.C.R.A.P., 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970); and Barlow v. Collins, 397 U.S. 159, 25 L. Ed. 2d 192, 90 S. Ct. 832 (1970). In those cases, the Supreme Court held that § 10 of the APA, 5 U.S.C. § 702, provides standing to obtain judicial review of agency action for those who can show that (1) the challenged agency action has caused them injury in fact, and (2) the alleged injury is to an interest arguably within the zone of interests to be protected by the statutes which the agencies are alleged to have violated.
Plaintiffs here have alleged injuries sufficient to meet the injury-in-fact requirement. In Counts I and III, plaintiff Center for Auto Safety (CFAS) alleges that defendants failed to comply with the rulemaking provisions of the APA, 5 U.S.C. § 553, and that such violation injured CFAS in its organizational activities which include, inter alia, the monitoring of the activities of the Federal Highway Administration, commenting upon methods and standards for improving safety on the highways, assisting individual motorists in obtaining correction of highway safety hazards, and advancing public awareness of highway safety issues. Plaintiff CFAS has asserted a need for information in order to inform the public and to comment on behalf of its contributors in regulatory proceedings which affect their interests in highway safety. This need for information has been recognized as a sufficient basis for standing. Scientists' Institute for Public Information, Inc. v. AEC, 156 U.S. App. D.C. 395, 481 F.2d 1079, 1087 n.29 (D.C. Cir. 1973); Natural Resources Defense Council, Inc. v. SEC, 389 F. Supp. 689, 697-98 (D.D.C. 1974).
Similarly, in Count II, plaintiff CFAS alleges that defendants violated the provisions of the Federal Advisory Committee Act, 5 U.S.C. App. 1, by failing to open meetings with AASHTO to the public and by denying plaintiff CFAS' request for transcripts of those advisory committee meetings. Plaintiff CFAS alleges that its exclusion from these meetings impaired the accomplishment of its organizational goals. For the reasons stated above, the Court finds this injury to plaintiff's organizational purposes sufficient to support plaintiff CFAS' standing to sue. Moreover, it appears that any plaintiff whose request for information under the Advisory Committee Act has been denied has standing to sue. Nader v. Baroody, 396 F. Supp. 1231, 1232 (D.D.C. 1975).
In Count IV, plaintiffs allege that defendants committed a clear error of judgment and exceeded their statutory authority under 23 U.S.C. § 117 in approving Georgia's Certification Acceptance plan. Plaintiffs allege that the plan's deficiencies will lead to the construction of federal-aid highways which are unsafe and will directly disturb CFAS' and plaintiff Clark's use of those roads by increasing the likelihood that they will suffer bodily injury and property damage. The Court finds that this asserted injury is sufficiently concrete and personal to the plaintiffs as highway users to grant them standing. As the Supreme Court recognized in S.C.R.A.P., supra, any level of injury in fact is sufficient to satisfy the standing requirement, 412 U.S. at 689 n. 14; the fact that many persons share the same injury is not a sufficient reason to deny standing to a person who has asserted injury in fact. Id. at 686.
In addition to meeting the first requirement of standing by asserting injury in fact,
plaintiffs meet the second requirement since their interests are arguably within the zone of interests protected by the acts defendants are alleged to have violated. The safety interests which plaintiffs seek to vindicate are within the interests protected by the Federal Highway Act. See, e.g., 23 U.S.C. §§ 105(f), 109(a), (d), (e) & (f). Plaintiffs' interest in participating in the proceedings which led to the adoption of the challenged regulations are within the zone of interests protected by the APA and the Federal Advisory Committee Act.
III. DEFENDANTS PROPERLY INVOKED THE "GRANTS" EXEMPTION TO THE ADMINISTRATIVE PROCEDURE ...