The Missouri parties request that discovery be allowed as to these matters so that a "thorough, probing, in-depth" review of the Secretary's decision may be accomplished by the Court.
The Missouri parties' position does not comport with existing case law on the subject. The record to be reviewed by this Court is the record that was before the agency. This Court has no authority to make an "administrative record." Camp v. Pitts, 411 U.S. 138 at 142, 36 L. Ed. 2d 106, 93 S. Ct. 1241, Overton Park v. Volpe, supra, Bradley v. Weinberger, 483 F.2d 410 at 413 (1st Cir. 1973), Texas v. EPA, 499 F.2d 289, 297 (5th Cir. 1974).
Plaintiffs' reliance upon Overton Park, supra, to support their discovery claims is misplaced. The statutes
in issue there prohibited the Secretary of Transportation from authorizing the use of federal funds to finance the construction of highways through public parks if a feasible and prudent
alternative route existed. The Secretary announced that he concurred in the judgment of local officials that the highway should be built through Overton Park, but made no statement of formal findings. Although such formal findings were not required by the Court, it did state that "judicial review based solely on litigation affidavits"
was inadequate. The court stated that there was an administrative record that allowed full, prompt review but that the record was not before the Court. The Supreme Court remanded the case to the District Court for a review "based on the full administrative record that was before the Secretary."
The Supreme Court then stated that "since the bare record may not disclose the factors that were considered or the Secretary's construction of the evidence it may be necessary for the District Court to require some explanation."
The Court then indicated that testimony may be necessary but citing U.S. v. Morgan, 313 U.S. 409, 422, 85 L. Ed. 1429, 61 S. Ct. 999 (1941) admonished that such inquiry into the mental process of decision-makers is usually to be avoided.
Thus it is clear that in Overton Park discovery was allowed only as an expedient
in sharply limited
situations. Further, even in Overton Park discovery was not required.
The Court of Appeals for this Circuit has recently addressed this same point. In Doraiswamy v. Secretary of Labor, (No. 74-1847, decided November 26, 1976),
the appellants claimed that the District Court erred in denying them discovery and therefore the opportunity of proving the unavailability of qualified American workers to fill the position openings in question. There the Court of Appeals, citing the Overton Park and Camp decisions, held that the District Courts were correct in restricting review to the record as made before the Secretary.
The Court went on to say that while there may be times where an agency may be called on "to more adequately explain . . . the reasons for its decision,"
that occasion arises only when "the bare record does not disclose the factors . . . considered or the Secretary's construction of the evidence."
The Court then concluded "there is no occasion for a judicial probe beyond the confines of an administrative record" affording enough "contemporaneous explanation" of the administrative decision to indicate the determinative reason for the final action taken.
Plaintiffs have asked this Court to enjoin the disbursements of funds for land acquisition in the Columbia-Waterloo area. The standard upon which this Court must judge a motion for preliminary injunction is that established by the Court of Appeals for the District of Columbia in Virginia Petroleum Jobbers Association v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (1958) and reaffirmed in subsequent cases: has there been a strong showing that petitioner is likely to prevail on the merits; has there been a showing of irreparable injury without the requested relief; would the issuance of a stay substantially harm other parties interested in the proceedings; where lies the public interest. In order to prevail, a Plaintiff must convince the Court on each of the four criteria. For reasons hereafter set forth Plaintiffs have failed to demonstrate any likelihood of success on the merits. This Court is satisfied that the Secretary acted neither arbitrarily and capriciously nor outside the ambit of his statutory authority in approving the Illinois application. Accordingly, Plaintiffs' petition for preliminary relief must be denied.
The Missouri parties' claims with respect to the pending summary judgment motions may be summarized as follows: that the Secretary exceeded the authority granted him by Congress pursuant to Section 16(f)(1) of the ADAP Act (49 U.S.C. § 1716(f)(1)) in approving the application of the Illinois authority; that he failed to give fair consideration to the interest of communities near the proposed location of the project as required by the Section 16(c)(3) of the Act (49 U.S.C. § 1716(c)(3)); that the Secretary, by granting the requested funds for acquisition of the land, is engaging in the practice of "land banking" outside the scope of his authority; that he could not find that there were no "feasible and prudent" alternatives to the proposed site as required by Section 16(c)(4), 49 U.S.C. § 1716(c)(4), because he failed to study alternatives, and that the Environmental Impact Statement was inadequate and had to be recirculated under the mandate of OMB Circular A-95 and the National Environmental Protection Act.
The Airport and Airway Development Act of 1970, P.L. 91-258, (49 U.S.C. § 1701, et seq.), was enacted to provide for the expansion and improvement of the Nation's airports.
The Act reflects, in part, a recognition of the rapid growth, with the attendant problems and benefits, of the action's air transportation system and its impact on the Nation's commerce.
The Act contemplates that the expansion of the air transportation system will be accomplished through a series of planning grants
and it requires also that air transport policy be integrated into a national transportation policy.
The Secretary and this Court are controlled by this legislation.
The Missouri parties claim that with respect to a site for additional airport facilities, Section 16(f)(1) of the ADAP Act limits the Secretary to nothing more than facilitating the agreement of the governing authorities of the areas concerned. They read the statute as precluding his consideration of the Illinois application because that application is opposed by the State and local governments in Missouri and agreement between those governing authorities as to site is impossible. But the provision of the statute when read literally and in context contains no such proscription.
The legislative debates concerning the Secretary's authority to determine the location for new airport facilities did not focus on the fact situation presented in this case. Those debates dealt with the situation in which no local governing authority in a metropolitan area sought to sponsor an application for a new facility.
In that event, the Secretary is without authority to determine the site, he could not impose an airport upon a metropolitan area where there was no sponsor, he could not act as a "federal Czar." There is no mention or suggestion in those debates that the Secretary could not consider an application from a proper local authority in a metropolitan area unless all other governmental authorities in the area were in agreement as to the location.
When Congress intended to give a local or State authority virtual veto power over the development for an airport in its area it did so specifically. With respect to the development of non-metropolitan airports, Section 16(f)(2) expressly provides for local veto. It did not so provide with respect to metropolitan area airports.
The Missouri parties next contend that the Secretary failed to give "fair consideration" to local views as required by Section 16(c)(3) of the ADAP Act. Plaintiffs contend that the Secretary obviously did not give "fair consideration" to local views since implicit in his decision is a rejection of what Plaintiffs deem a "local consensus"
that Lambert should be developed as the area primary air carrier. Clearly, the views of those affected must be weighed. A brief look at the decision as well as the record supports the determination that local views were considered in the Secretary's decision.
The law requires that local interests be considered, not that they be decisive.
The Missouri parties also contend that the Secretary exceeded his authority in granting the funds for land acquisition since this constitutes "land banking" which is prohibited under the ADAP Act.
It appears to the Court that what the Missouri parties overlook is the explicit authority in the Act to the contrary. The Act specifically authorizes the acquisition of land that is necessary for "future airport development," Section 11(2)(B), 49 U.S.C. § 1711(2). The Act permits advance purchase of land for future development when it is necessary to permit "any work involved in constructing . . . a public airport or portion thereof." Section 11(2).
The Act gives the Secretary the authorization to fund land acquisition for future airport development. The Secretary was not therefore engaged in land-banking.
Plaintiffs also argue that regardless of the Secretary's authority under the Act, the Secretary's failure to study certain aspects of the airport problem
and his misinterpretation of the conclusion of the studies that were done
require, at the very least, a remand to the Secretary for examination and redetermination. The short answer to Plaintiffs' contentions is that it is the administrative agency, not the Court, which is designed to have and does have the experience and expertise to implement national transportation policies; and it is the Administrator who determines how these resources are utilized in making his judgments. It is for the Secretary to decide what available studies and reports to consider and it is for him to decide whether to commission independent studies. Market Street Railway Co. v. Railroad Commission of California, 324 U.S. 548, 560, 89 L. Ed. 1171, 65 S. Ct. 770 (1945); Consumers Union of United States, Inc. v. Consumer Product Safety Commission, 491 F.2d 810, 812 (2 Cir. 1974). In addition, this Court is guided by the admonition expressed by the Court of Appeals for this Circuit in Braniff Airways, Inc. v. CAB, 126 U.S. App. D.C. 399, 379 F.2d 453 (1967):
Particularly in a comparative proceeding we must be chary of substituting our own evaluation for that of the Board, for in these circumstances the problem of the Board is often "not so much one of the resolving factual issues as of exercising its judgment."
Further, the record in this case makes it clear that the Secretary did consider the various factors and problems which the Plaintiffs say were not studied, and the record supports the Secretary's determination in each instance. Site selection alternatives were placed before the Secretary and weighed by him.
The Secretary devoted attention to questions of general aviation
and future Air Traffic Control Technology.
The aviation noise
and delay estimate
analyses which the Secretary performed are adequately detailed in the decision.
This Court cannot substitute its judgment for that of the Secretary. The Court cannot say on the basis of the record here that the Secretary's actions in arriving at the decision to approve the Illinois application were arbitrary and capricious.
There is one final issue. The Missouri parties allege that the Secretary has failed to comply with the requirements of local and environmental review imposed by the ADAP Act, NEPA and OMB Circular A-95. In 1971 Illinois submitted its initial proposal and a draft Environmental Impact Statement to the designated local clearing-house agency (East-West Gateway Coordinating Council) as required by Circular A-95. The Clearinghouse agency passed the project along, with the comments received, to the Secretary. In 1976, in light of reduced traffic forecasts, Illinois outlined to the Secretary what is now the present proposal. This proposal has reduced the size of the terminal and eliminated a third runway. The Missouri parties contend that this reduced plan must be resubmitted for local review under the authority of OMB Circular A-95 and that the EIS should, because of these changes be required to go through A-95 review.
A-95 is a notice provision; it requires that any agency applying for assistance must notify the State and areawide planning clearinghouse of the intent to apply for assistance.
There is nothing in the guidelines which required recirculation of a proposal once this has been accomplished, as was accomplished here in 1971. There is no claim that there was insufficient review of the proposal during its circulation in 1971. Under OMB Circular A-95, this is all that is required.
Nor was it required that the revised EIS be taken through the A-95 review. First, the Court cannot find that these are major changes requiring re-review. Second, the circular provides only that local governments be informed of and given the opportunity to review and comment on the environmental significance of proposed projects.
Neither NEPA nor the A-95 Circular can be read to mandate another review cycle before the Secretary can consider the application.
The Plaintiffs' last attack is directed to the adequacy of the Environmental Impact Statement under NEPA standards. Plaintiffs raise two issues. First, Plaintiffs say that EIS misstates a crucial fact when it concludes that no additional highway development would be necessary to serve Columbia-Waterloo since planned highway construction will be undertaken whether or not the airport is built. Second, Plaintiffs point out that in the final EIS, a large number of environmental issues which plaintiffs deem crucial were deferred until the master planning stage
and that the EIS fails to properly explore the socio-economic impact of development on Illinois or of the abandonment of Lambert Field on St. Louis. Thus Plaintiffs say that this list of deferred environmental questions makes it clear that the "final" EIS cannot be a complete evaluation of the whole project, and therefore the EIS is inadequate.
The Secretary found that the basic highway system would be constructed with or without the development of the Columbia-Waterloo airport. The record clearly supports this determination.
It is also clear from the EIS (Vol. 1, pp. 2-109 to 2-113) that studies conducted put the cost of highway expansion at substantially below what Plaintiffs claim will be needed. The Court cannot conclude that the EIS suffers from any mis-statement of fact that would serve to invalidate the statement.
As to the second issue, Plaintiffs apparently want a deferral of the decision until all the information on every conceivable issue is collected and before the Secretary. It is quite true that certain issues were deferred, but what must be kept in focus is that what the Secretary had before him was an application for funds to acquire land. NEPA is not a straightjacket. The Courts have recognized that the statute admits of some flexibility and discretion in determining the contents of impact statements. Scientists' Institute for Public Information, Inc. v. AEC, 156 U.S. App. D.C. 395, 481 F.2d 1079 (1973). It is obvious that the environmental review is not complete. There will be time for further environmental consideration while it can still have an impact. It appears that in all areas of the EIS the agency took more than the "hard look"
at the environmental consequences that is required by NEPA. There is no doubt that the EIS is sufficient in all respects.
From what has been developed it is clear that there is no basis for remanding the case to the agency for a redetermination of the issues raised by the Plaintiffs. Likewise there is no basis for holding the decision of the Secretary arbitrary and capricious.
The Missouri parties speak of a "formlessness" of the proceedings leading to the Secretary's decision, a formlessness which has destroyed the fairness of the proceedings and precluded them from making an unbiased record. It is apparent that this has not been the case. The Plaintiffs were not prevented from submitting any document or study which would support their claim. Indeed they had years in which to act. The Secretary considered all that was before him and went beyond what was required of him in deciding this issue. There can be no doubt that while the Plaintiffs may disagree with the decision that was reached they have presented to this Court nothing from which it can be legally determined that it was improper under the existing statutory and case law.