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07/24/79 Committee For Auto v. Jay Solomon

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


July 24, 1979

COMMITTEE FOR AUTO RESPONSIBILITY ET AL ., APPELLANTS

v.

JAY SOLOMON, ET AL ., APPELLEES 1979.CDC.133 DATE DECIDED: JULY 24, 1979

Before ROBINSON and WILKEY, Circuit Judges, and FLANNERY,* United States District Judge for the United States District Court for the District of Columbia.

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT

Rehearing Denied August 22, 1979.

Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 76-2084).

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILKEY; PER CURIAM

This litigation embodies a challenge to the leasing by the General Services Administration of the Great Plaza area of the Federal Triangle in Washington, D.C., for use as a parking facility for employees of federal agencies. *fn1 Two grounds of attack are advanced. One is that the National Environmental Policy Act of 1969 *fn2 requires an environmental impact statement prior to leasing. The other is that GSA is violating the Public Buildings Amendments of 19723 by charging the employee only a portion of the commercial parking rate and assessing the difference to the employee's agency.

Appellants are the Committee for Auto Responsibility and the Metropolitan Washington Coalition for Clean Air,4 two organizations whose purposes include improvement of the quality of the environment, together with three individuals who live and attend school in the District of Columbia. The Great Plaza area is owned by the Federal Government, and since the 1930's has been leased to parking management firms for periods of approximately four years.5 It is now leased to Parking Management, Inc., a private corporation, for a four-year term that began on May 15, 1976.6 Under the current lease, nearly three-fourths of the parking spaces are reserved during business hours for the use of permit-holding federal employees. Since 1972, permits have been assigned only to employees who carpool.7

The District Court denied appellants' request for declaratory and injunctive relief and dismissed their action.8 They now assert that procedural and substantive errors infected the proceedings before that court. GSA opposes their arguments and insists further that appellants lack standing. Perceiving no reversible error, we affirm. I. STANDING

To possess standing to attack GSA's failure to prepare an EIS, appellants must show that they have been "adversely affected" or "aggrieved" within the meaning of Section 10 of the Administrative Procedure Act .9 That section confers standing only upon those to whom the challenged agency conduct has caused actual injury to an interest within the zone of interests protected by the statute allegedly violated.10 Section 10 calls additionally upon a party to allege an "injury that fairly can be traced to the challenged action of the defendant, and not injury that results from an independent action of some third party not before the court."11

We think appellants have satisfied standing requirements to charge violations of NEPA but not of the Public Buildings Amendments of 1972.12 Appellants claim that they or their members13 live in or near the District of Columbia and regularly travel to educational, cultural and recreational facilities within the immediate vicinity of the Great Plaza. They assertedly are affected by noise, air pollution and congestion from vehicles utilizing the Great Plaza parking lot.14 Harm to health and conservational interests of parties seeking judicial review is enough to meet the injury-in-fact test for standing,15 and interests of those sorts are clearly within the zone of protection afforded by NEPA.16

Appellants have shown, moreover, that their injury can be traced to GSA's failure to prepare an EIS.17 Their complaint avers that had GSA done so, it would have had to assess the adverse environmental effects of leasing the Great Plaza area under an arrangement offering parking spaces to federal employees for fees less than commercial rates.18 In its EIS, GSA would also have had to consider alternatives to the leasing agreement,19 such as charging permit holders a commercial rate for parking, offering subsidies to those who use mass transit, or restricting the area to non-parking uses.20 Such an approach, according to appellants' complaint, would have ensured that the use of the Great Plaza does not contribute unnecessarily to noise and air pollution in the surrounding area. These allegations are sufficient to confer standing upon appellants to challenge GSA's omission of an EIS.

To litigate their remaining claim, it was incumbent upon appellants to show that they have been "adversely affected" by GSA's alleged violations of the Public Buildings Amendments of 1972. While appellants have urged that their health and conservational values are similarly diminished by GSA's failure to exact commercial parking rates from federal employees,21 it seems clear that these asserted losses fall well outside the zone safeguarded by the Amendments.22 The purpose of the Amendments is to provide the Government with an economical and efficient system for the procurement, utilization and disposal of property.23 Health and conservational concerns, which indubitably underlie NEPA, are not among those that Congress arguably sought to accommodate by enactment of the Public Buildings Amendments of 1972. We hold that appellants do not have standing to challenge the asserted infringement of the Amendments.24 II. THE DISTRICT COURT'S PROCEDURES

Appellants charge the District Court with procedural error, stating that it did not treat GSA's motion to dismiss as a motion for summary judgment. They argue that whenever a federal trial court considers matters outside the pleadings in ruling on a motion to dismiss, the motion must be treated as one for summary judgment.25 Appellants also point to GSA's failure to file its motion to dismiss at least ten days prior to what it says was a hearing thereon.26

We have no quarrel with appellants' view of adjective law. But, contrary to appellants' position,27 the session held by the District Court was devoted to appellants' motion for a preliminary injunction and the merits of its case for a permanent injunction,28 matters previously consolidated for hearing.29 The court thus did not deal with GSA's motion to dismiss, but rather examined the relief appellants sought, denied their request, and finding none other appropriate to grant, properly dismissed the complaint.30

Moreover, appellants have not alleged any prejudice resulting from the course taken by the District Court. All parties were given three weeks' notice of the consolidation,31 and must have understood that the hearing on the preliminary and permanent injunctive relief was meant to be their final day in court.32 Appellants' argument of reversible procedural error must be rejected. III. THE LEASE AND MAJOR FEDERAL ACTION

The central issue on appeal is whether GSA's decision to lease the Great Plaza area to a parking management firm was a major federal action significantly affecting the environment.33 GSA, in an "environmental analysis"34 prepared before it entered into the 1976 lease, found that "(t)he continued use of the Great Plaza Parking Lot will not degrade air quality from the present level, since the pollutants generated by the cars using the parking lot are already included in the present level."35 GSA concluded that "(t)he leasing of the Great Plaza Parking Lot to a parking management firm for a period of four years, is not considered to be a major Federal action which would significantly affect the quality of the human environment."36 Appellants respond by contending that the approximately 1,800 vehicles utilizing the lot daily contribute pollutants that significantly degrade local air quality.37 Since "GSA's (parking) program continues to harm the environment," appellants maintain, an EIS must be prepared even though the leasing arrangement is a continuing project.38

An agency commencing federal action has the initial and primary responsibility for ascertaining whether an EIS is required.39 An initial agency determination on this matter is judicially vulnerable only when the agency has abused its discretion or has acted arbitrarily.40 This standard of review notwithstanding, a court is obligated to make sure that the agency took a "hard look" at the environmental consequences of its decision.41

In the instant case, we cannot say that GSA acted unreasonably in concluding that its decision to lease the Great Plaza area to a parking management firm was not major federal action significantly affecting the environment. We are informed that GSA ascertains the parking needs at each federal building and project on a case-by-case basis,42 and that if GSA determines that an EIS must be developed in any specific instance, the parking plans for that project will be considered in the EIS.43 An agency decision to consider jointly the environmental consequences of a federal project and its adjacent parking facility is not an unreasonable interpretation of the NEPA mandate.44

The duty to prepare an EIS normally is triggered when there is a proposal to change the status quo.45 GSA has clearly shown in the information provided in its environmental analysis46 that current leasing of the Great Plaza area to a parking management firm does not alter the status quo ante.47 Without a change in parking policy concerning the Great Plaza area there is no proposal for major federal action significantly affecting the environment.48

To compel GSA to formulate an EIS under these circumstances would trivialize NEPA's EIS requirement and diminish its utility in providing useful environmental analysis for major federal actions that truly affect the environment. NEPA's call for an EIS is governed by the rule of reason,49 and that rule was not transgressed by GSA's failure to prepare an EIS prior to leasing the Great Plaza area to a parking management firm in 1976. IV. THE PUBLIC BUILDINGS AMENDMENT OF 1972

As we have stated, appellants also charge that the GSA parking program at Great Plaza violates Section 490(j) of the Public Buildings Amendments of 197250 by allocating parking fees between federal employees and their respective agencies.51 Appellants argue that the full fee should be paid by employees because, they say, as "users" of the parking spaces they must pay appropriate commercial charges to comply with Section 490(j).52 We have held that appellants lack standing to challenge violations of this legislation.53 We now add, alternatively, that there is no merit in their contentions.

GSA disagrees with appellants' reading of Section 490(j), and its interpretation is entitled to great weight in a reviewing court.54 The deference owed an agency's construction of a statute it administers is heightened when, as in this case, the agency was actively involved in the drafting and adoption of the statutory language.55

GSA's implementation of Section 490(j) means that each agency is required to pay GSA the prevailing commercial rate for space utilized by that agency's employees, and each employee is obligated to pay the parking management firm a fee which reflects the cost of management and operation of his space.56 Such an approach is a reasonable interpretation of Section 490(j), particularly in light of its legislative history, which reveals that the congressional purpose pervading passage of the Public Buildings Amendments of 1972 was to make government agencies accountable for the space they utilize and to prevent agencies from demanding space in excess of their needs.57

We find no merit in appellants' allegations that GSA, in leasing the Great Plaza area to a parking management firm, violated either NEPA or the Public Buildings Amendments of 1972. The judgment of the District Court is accordingly

Affirmed.

I concur in the result.

APPELLATE PANEL: FOOTNOTES

* Sitting by designation pursuant to 28 U.S.C. ยง 292(a) (1976).

Opinion for the Court filed PER CURIAM.


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