laws. Plaintiffs propose, as an alternative, that the FHWA make specific findings regarding performance in expressly designated areas, like traffic fatality, training, road design plans, etc. Defendants argue that plaintiffs' "methods" are not required and, in fact, would hinder the process of determining CA.
Currently, the regulations provide that a "capability" finding "will be based on an FHWA evaluation of a State's performance and resources." 43 Fed.Reg. 46965 (to be codified at 23 C.F.R. § 640.109(a)(2)(ii)). In addition, the regulations specify the various reports, reviews, and other sources which may be examined in evaluating a state's resources or performance. Id. (to be codified at 23 C.F.R. §§ 640.109(a)(2)(ii)(A) & (B)). Plaintiffs argue that this reference to documentary sources is inadequate and that Only a comprehensive list of specific factors can satisfy the mandate of 23 U.S.C. § 117. The plaintiffs, however, have failed to show where the statute, in either its language or it legislative history, mandates these specific criteria. Although the statute requires the Secretary of Transportation to make a finding of "capability," it does not prescribe any particular formula or method. As the regulations currently stand, this Court is unable to conclude that they will lead to arbitrary or capricious decision making. As the Court of Appeals for this Circuit explained in Pacific Legal Foundation v. Dept. of Transportation, 193 U.S. App. D.C. 184 at -- , 593 F.2d 1338, at 1343 (1979), agency rulemaking should be sustained when it is "consistent with its statutory mandate, rational, and not arbitrary."
Moreover, a review of the Federal-Aid Highway Act, 23 U.S.C. §§ 101-156 (1976), indicates that when Congress desired to set specific performance levels, the law clearly reflected that intent. Thus, § 109(b) of title 23 establishes the requirement that the Interstate Highway System provide at least four lanes of traffic. Even more significant is Congress' failure to include the specific criteria, which the plaintiffs' propose, when it amended section 117 in 1976. Plaintiffs' suggestions were certainly before the legislature at that time, and Congress must have deliberately declined to adopt such criteria. See Kay v. FCC, 143 U.S.App.D.C. 223, 231, 443 F.2d 638, 646 (1970). Thus, the Court concludes that Congress has decided to permit the Secretary of Transportation or the Administrator of the FHWA to determine the factors relevant to a "capability" finding and the appropriate method for making such a finding. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Council, Inc., 435 U.S. 519, 98 S. Ct. 1197, 55 L. Ed. 2d 460 (1978).
Apart from the issue of § 117's mandate, this Court finds that there is nothing in the CA regulations which precludes reasoned and sound decision making. Thus, under 5 U.S.C. § 706(2)(A), the Court finds plaintiffs' complaint without merit. The regulations require the FHWA to consult a host of reliable sources and they compel a finding based on this material.
In view of the reasonableness of the final regulations and in view of the absence of any dispute over the material facts, the Court shall enter summary judgment in favor of defendants as to Count V of the second amended complaint.
III. SUMMARY JUDGMENT IS APPROPRIATE AS TO COUNT IV BECAUSE THE DEFENDANTS' ACCEPTANCE OF GEORGIA'S CERTIFICATION WAS BASED ON SUFFICIENT EVIDENCE
Plaintiffs, in Count IV of the second amended complaint, object to the FHWA's acceptance, on September 3, 1974, of Georgia's Certification. To a large extent, plaintiffs' objections here parallel those made in Count V: in other words, in the absence of specific performance criteria, an individual CA approval must necessarily be arbitrary. In addition, plaintiffs submit that the defendants have failed to state the basis for their determination of Georgia's CA sufficiency and that Georgia, in fact lacks both the standards and capability of enforcing them, required by 23 U.S.C. § 117.
This Court, in its order of February 28, 1977, remanded this case to the FHWA for a clear articulation of the defendant Administrator's reasons for concluding that Georgia had the capability to ensure enforcement of its highway laws. 428 F. Supp. at 121. In an attempt to comply with this order, the defendants submitted affidavits testifying to Georgia's enforcement capability. This Court, in its order of November 1, 1977, found these conclusory affidavits insufficient because they did not provide the factual basis necessary for judicial review of the Agency's decision. Accordingly, the Court again remanded the case to the Agency, instructing it to reconsider the "capability" issue with reference to several factors enumerated in the order.
In compliance with the order of November 1, 1977, the defendants have provided the Court with several documentary exhibits, each of which contains a "summary and analysis" explaining the documents' significance in the "capability" determination. Plaintiffs, in Count IV of their second amended complaint, assert that these documents do not support the finding that Georgia has laws and standards equivalent to those in title 23, United States Code, as well as the capability of enforcing those laws.
This Court has reviewed all of the Agency's exhibits and studied the relevant analytical summaries. After a careful examination of this material, the Court concludes that the defendants have complied with the orders of this Court issued on February 28 and November 1, 1977. These documents and the record considered as a whole clearly indicate that the Agency's decision to accept Georgia's Certification was supported by substantial evidence. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 485, 71 S. Ct. 456, 95 L. Ed. 456 (1951).
For example, the Agency has shown that for twenty years Georgia operated satisfactorily under the "Secondary Road Plan."
was the predecessor to the current CA system and, like CA, it provided for the administration of highway projects on the Federal-aid secondary system with little or no federal review. The remainder of the documents cover many topics, including research and development, safety review, financial health, personnel training, and, most importantly, the ability of Georgia's Department of Transportation to take corrective action once deficiencies have been spotted.
Although some of the documents provided by the defendants were prepared After CA was awarded on September 3, 1974, the Court is not persuaded by plaintiffs' assertion that this material undercuts the adequacy of the original finding. First, based on the material available Before September 3, 1974, the Court must conclude that the Agency's decision to award CA to Georgia was supported by substantial evidence. The Court, in its memorandum opinion of February 28, 1977, indicated that it would rely on the good faith of the defendants to avoid Post hoc rationalization of their administrative decision. 428 F. Supp. at 121. It is satisfied that no such rationalization has occurred. Second, the Agency Should have reviewed the post-1974 material in order to determine the continuing adequacy of the applicant state. Moreover, because this Court expressly recognized the possibility "that further consideration of the capability finding (may be) warranted," a review of the post-1974 documents was certainly appropriate.
To counter this documentary evidence, plaintiffs have merely introduced several statistics which suggest that, in certain respects, Georgia's highway system may be inadequate. However, none of this material raises any doubt as to the sufficiency of the evidence on which FHWA relied in accepting Georgia's Certification. In light of the documentary exhibits, the Court finds that there are no material facts in dispute with respect to the sufficiency of the evidence relied on by the defendants. Accordingly, on Count IV of the second amended complaint, the Court shall enter summary judgment in favor of the defendants.
After a review, pursuant to 5 U.S.C. § 702 (1976), of both the defendants' final CA regulations and the decision to award CA to Georgia, the Court must conclude that plaintiffs have made no showing that either action was arbitrary, capricious, or contrary to law. Indeed, the Court finds both Agency actions to have been reasonable and in compliance with 23 U.S.C. § 117 (1976), as construed by this Court. Because there are no issues of material fact in dispute, defendants' motion for summary judgment on Counts IV and V of the second amended complaint is granted.
An Order in accordance with the foregoing will be issued of even date herewith.