rather a separate and further question; a balancing of equities must guide the decision as to whether to issue an injunction. See 427 U.S. at 407-08, 96 S. Ct. at 2729. The balance of equities in this case militates against a grant of injunctive relief. As defendants correctly point out, plaintiffs largely ignored their NEPA claims at the preliminary injunction stage of this litigation; in any event, this Court found that plaintiffs were neither suffering from nor threatened with any irreparable injury. See Memorandum and Order of September 17, 1979. Plaintiffs still suffer no such threat. No particular project requiring a local EIS can go forward until that site-specific EIS has been completed. Under the regulations, the only major actions that transit authorities must take immediately are to acquire accessible buses and subway cars, if they decide to acquire any new vehicles at all, and to initiate compliance planning.
With respect to other provisions of the regulations, "recipients are not required to begin alterations to existing transit facilities until any waiver requests are considered and key stations have been identified in transition plans, which are not due until up to 18 months from the effective date of the regulations. 49 C.F.R. § 27.103. This delay provides ample time for the defendants to rectify any violation of NEPA." Defendants' Reply Memorandum, filed September, 1979, at 28 n.19.
Although it is possible that DOT might as a result of its environmental assessment abandon its decisions to require accessible buses and subway cars, or that Congress would set aside the regulations or limit funding for the grants governed by them, the injury that would result to plaintiffs from such a reversal would not be irreparable: many unfilled orders could be modified,
and to the extent that this proved infeasible, plaintiffs' damages would, for aught that appears on this record, be quantifiable and compensable. In any event, plaintiffs potential injuries and the related threat to the public interest resulting from defendants' failure to consider the long range environmental consequences of the regulations are not imminent. Most important, perhaps, an administrative remedy and appropriate judicial review will remain available for any plaintiff threatened with irreparable injury. See pp. 817 - 818, supra.
In deciding whether to enjoin the DOT regulations pending completion of the EIS, the Court has, consistent with Kleppe, attempted carefully to consider the public interest at stake. If the Court proved mistaken in its conclusion that an environmental impact statement is necessary, a program with possibly millions of beneficiaries would have been seriously delayed, to their discomfort and irreparable detriment. Moreover, the DOT program is one of unusual magnitude, and is the focus of active consideration in Congress. If Congress determines that the implementation of the DOT regulations should be delayed or aborted because of a lack of sufficient information concerning their probable effects, (or for any other reason) it can easily do so. In fact, Congress has already prohibited the use of federal funds in fiscal 1980 to retrofit any existing rail systems, pending completion of the cost-benefit studies it has ordered. See Pub.L.96-131, 93 Stat. 1027, 1032 (1979); H.Rep. 96-272 (Committee on Appropriations), at 48. In view of this Congressional action, any injunction against such retrofitting would be redundant.
For these reasons, the Court has concluded that under the standards enunciated in Kleppe, the regulations should not be enjoined pending completion of the EIS. The Court will, however, retain jurisdiction, on an inactive basis, to entertain applications for relief by those plaintiffs justifiably dissatisfied with the administrative action (or inaction) on any petitions for waivers, exemptions, or extensions they have filed, and to reconsider the decision on the merits should any facts disclosed in the EIS so require.
ORDER AND JUDGMENT
Upon consideration of the cross-motions for summary judgment, the affidavits and exhibits in support thereof, the oral arguments thereon, and the entire record herein, including the record in respect to plaintiffs' motion for preliminary injunction, and for reasons set forth in the accompanying Memorandum, it is this 7th day of February, 1980, hereby
ORDERED: That plaintiffs' complaint against the defendant Secretary of Health, Education, and Welfare (now Health and Human Services) is DISMISSED for failure to state a claim upon which relief may be granted; and it is
FURTHER ORDERED, ADJUDGED AND DECLARED: That plaintiffs' motion for summary judgment as to the claim that the National Environmental Policy Act requires the remaining defendants to prepare an environmental impact statement to accompany Subpart E of the Department of Transportation regulations of May 31, 1979, 44 Fed.Reg. 31477-31481, is GRANTED; and it is
FURTHER ORDERED: That in all other respects defendants' motion for summary judgment is GRANTED and plaintiffs' motion is DENIED; and it is
FURTHER ORDERED: That defendant prepare and file an environmental impact statement on or before September 1, 1980, unless otherwise ordered by the Court; and it is
FURTHER ORDERED: That this Court will retain jurisdiction of this action, on an inactive status, to entertain applications for relief by those plaintiffs justifiably dissatisfied with the administrative action (or inaction) on any petitions for waivers, exemptions, or extensions they have filed with defendants, and to reconsider the decision on the merits should any facts disclosed in the prospective environmental impact statements so require.