Petition — Committee for Auto Responsibility v. Freeman

; n ad

- — wt do

NOV 20 1979

, JR., CLERK

IN THE a

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

Y°W9-790

COMMITTEE FoR AUTO RESPONSIBILITY, et al.,

Petitioners,

Uv.

R. G. FREEMAN, III, Administrator,

General Services Administration, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

DANIEL J. POPEO

WASHINGTON LEGAL

FOUNDATION

1612 K Street, N.W.

Suite 605

Washington, D.C. 20006

(202) 857-0240

JOEL D. JOSEPH

JEFFREY HILLER

1712 Eye Street, N.W.

Suite 1010

Washington, D.C. 20006

(202) 338-5560

Counsel for Petitioners.

Washington, D.C. «+ THIEL PRESS + (202) 638-4521

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I.

Il.

Ill.

IV.

(2)

TABLE OF CONTENTS

The Decision of The Court of Appeals Is In

Conflict With The Supreme Court’s Decision

in Kleppe v. Sierra Club, 427 U.S. 390

Oe eg Se

A. Where There Is A Proposal For A Major

Federal Action Significantly Affecting

The Environment Of Either Local Or

National Scope An Environmental Impact

Statement Must Be Prepared............-.-

B. Prior To Preparing An Environmental

Impact Statement Responsible Officials

Shall Consult With And Obtain The Com-

ments Of Any Federal Agency Which

Has Jurisdiction Or Special Expertise

With Respect To Any Environmental

Pe ee GOR eee ERE Oe

There Is A Division Among The Circuits Con-

cerning The Standard For Review Of An

Agency Decision Not To Issue An Environ-

eee ere

There Is A Division Among The Circuits Con-

cerning The Application Of The National

Environmental Policy Act To Projects Which

Were Ongoing Or Continuing When The Act

ARERR AR oS aire ola ael iter (a7 ee nea

The Case At Bar Presents Important Federal

Questions That Should Be Reviewed By

ee IIT ME oan 0-0 Si 4k ee 4K

CONCLUSION

i C0 ® See ee. 8 F248 ESS 8 OR CA eee: are eS

2. 2 ee 2 6s @ S74 27149 22.8 2 4 2. s 6 2 OS ES

(22)

Page

APPENDIX A — Opinion of the United States

SE A IR ay Ag AN dG his KG Aa. | 0.6 042 i la

APPENDIX B — Order of the United States Court

of Appeals Denying Rehearing en banc...........-. 24a

APPENDIX C — Order of the District Court for

ge | eee ee eee Cee Ee 25a

APPENDIX D — EPA Parking Restrictions, 38

PT. ME os 6 KN AHR OSSD gaa aA Se ss 26a

APPENDIX E — DOT Memorandum Re Federal

Subsidies of Employee Parking ................. 27a

TABLE OF AUTHORITIES

Cases:

Arlingtor Coalition on Transportation v. Volpe, 458

Dane Ae Tee AN, BOOED 6.8 a's wes 0c Gade dete os 14

Arlingtor County Board v. Richards, 434 U.S. 7

FES VA 6 04 hie Ae Oe eK A Meals se bee 11

City of Davis v. Coleman, 521 F.2d 661 (9th Cir.,

Se ek. ba 0 adh eee ek Re Re We ae be 12

Committee for Auto Responsibility v. Solomon,

Cle Fonte ee fe CO ROTO) So ax Shee rec eee eae 12

Environmental Defense Fund v. Tennessee Valley

Authority, 468 F.2d 1164 (6th Cir. 1972) ....... 13, 14

Jones v. Lynn, 477 F.2d 885 (Ist Cir. 1973) .......... 14

Kleppe v. Sierra Club, 427 U.S. 390 (1976) ...... 34,34, 32

Save Our Ten Acres v. Kreger, 472 F.2d 463

Sis CCM Rhy ah eis oe ee wink ca wees 12

Scherr v. Volpe, 466 F.2d 1027 (7th Cir. 1972) ........ 14

Statv*es: ,

National Environmental Policy Act of 1969......... passim

28 U.S.C.

I SC iis S be baie kwh ew es wk bk 2

Statutes, continued:

Section 1331

Section 1361

“ef @

> be ee Re Ou es eS: Cre SS 8D MeO RIS SOR

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

COMMITTEE FoR AUTO RESPONSIBILITY, et al.,

Petitioners,

Uv.

R. G. FREEMAN, III, Administrator,

General Services Administration, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners, the Committee for Auto Responsibility,

the Metropolitan Washington Coalition for Clean Air, Inc.

and three individuals respectfully request that a writ of

certiorari issue to review the decision of the United States

Court of Appeals for the District of Columbia Circuit

entered in this proceeding on July 24, 1979.

]

2

OPINIONS BELOW

The opinion of the Court of Appeals has been reported

at 603 F.2d 992 and is reproduced as Appendix A. The

order of the Court of Appeals denying petitioners’ sug-

gestion of a rehearing en banc on August 22, 1979 is

reproduced as Appendix B. The order of the United

States District Court for the District of Columbia has not

been reported and is reproduced as Appendix C.

JURISDICTION

The suggestion for a rehearing en banc was denied on

August 22, 1979, and this petition for a writ of certiorari

was filed within 90 days of the denial of a rehearing. The

jurisdiction of this Court is invoked under 28 U.S.C. Sec-

tion 1254 (1).

QUESTIONS PRESENTED

1. Where there is a proposal for a major federal action

significantly affecting the environment of either local or

national scope is there a requirement under the National

Environment Policy Act than an environmental impact

statement be prepared?

2. Is there a requirement under the National Environ-

mental Policy Act that prior to preparing an environ-

mental impact statement responsible officials shall con-

sult with and obtain the comments of any federal agency

which has jurisdiction or special expertise with respect to

any environmental impact involved?

3. What is the proper standard for judicial review of an

agency’s threshold decision not to file an environmental

impact statement under the National Environmental Pol-

icy Act of 1969?

3

4. How does the National Environmental Policy Act

apply to projects that were ongoing or continuing when

the Act was passed? ,

STATUTORY PROVISIONS INVOLVED

THE NATIONAL ENVIRONMENTAL

POLICY ACT OF 1969*

An Act to establish a national policy for the environ-

ment, to provide for. the establishment of a Council on

Environmental Quality, and for other purposes.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress assem-

bled. That this Act may be cited as the “National En-

vironmental Policy Act of 1969.”

PURPOSE

Sec. 2. The purposes of this Act are: To declare a

national policy which will encourage productive and en-

*42 U.S.C. §4321 et seq., 83 Stat. 852, Pub. L. 91-190.

The United States Code sections correspond to the section num-

bers of the Public Law in the following manner:

Section 2 is 42 U.S.C. §4321

Section 101 is 42 U.S.C. §4331

Section 102 is 42 U.S.C. §4332

Section 103 is 42 U.S.C. § 4333

Section 104 is 42 U.S.C. §4334

Section 105 is 42 U.S.C. §4335

Section 201 is 42 U.S.C. §4341

Section 202 is 42 U.S.C. 84342

Section 203 is 42 U.S.C. §4343

Section 204 is 42 U.S.C. § 4344

Section 205 is 42 U.S.C. §4345

Section 206 is 42 U.S.C. 84346

Section 207 is 42 U.S.C. §4347

Alphabetical and numerical subsections are the same in the Pub-

lic Law and the United States Code. Only Public Law citations

are given in the text.

4

joyable harmony between man and his environment; to

promote efforts which will prevent or eliminate damage

to the environment and biosphere and stimulate the

health and welfare of man; to enrich the understanding of

the ecological systems and natural resources important to

the Nation; and to establish a Council on Environmental

Quality.

TITLE I

Declaration of National Envrionmental Policy

Sec. 101. (a) The Congress, recognizing the profound

impact of man’s activity on the interrelations of all com-

ponents of the natural environment, particularly the pro-

found influences of population growth, high-density

urbanization, industrial expansion, resource exploitation,

and new and expanding technological advances and recog-

nizing further the critical importance of restoring and

maintaining environmental quality to the overall welfare

and development of man, declares that it is the contin-

uing policy of the Federal Government, in cooperation

with State and local governments, and other concerned

public and private organizations, to use all practicable

means and measures, including financial and technical

assistance, in a manner calculated to foster and promote

the general welfare, to create and maintain conditions

under which man and nature can exist in productive har-

mony, and fulfill the social, economic, and other require-

ments of present and future generations of Americans.

(b) In order to carry out the policy set forth in this

Act, it is the continuing responsibility of the Federal

Government to use all practicable means, consistent with

other essential considerations of national policy, to im-

prove and coordinate Federal plans, functions, programs,

and resources to the end that the Nation may —

(1) Fulfill the responsibilities of each generation

trustee of the environment for succeeding generations;

(2) Assure for all Americans safe, healthful,

productive, and esthetically and culturally pleasing sur-

roundings;

(3) Attain the widest range of beneficial uses of

the environment without degradation, risk te health or

safety, or other undesirable and unintended conse-

quences;

(4) Preserve important historic, cultural, and

natural aspects of our national heritage, and maintain,

wherever possible, an environment which supports

diversity, and variety of individual choice;

(5) Achieve a balance between population and

resource use which will permit high standards of living

and a wide sharing of life’s amenities; and

(6) Enhance the quality of renewable resources

and approach the maximum attainable recycling of

depletable resources.

(c) The Congress recognizes that each person should

enjoy a healthful environment and that each person has a

responsibility to contribute to the preservation and en-

hancement of the environment.

Sec. 102. The Congress authorizes and directs that, to

the fullest extent possible: (1) the policies, regulations,

and public laws of the United States shall be interpreted

and administered in accordance with the policies set forth

in this Act, and (2) all agencies of the Federal Govern-

ment shall —

(A) Utilize a systematic, interdisciplinary approach

which will insure the integrated use of the natural and

social sciences and the environmental design arts in

6

planning and in decisionmaking -which may have an

impact on man’s environment;

(B) Identify and develop methods and procedures,

in consultation with the Council on Environmental

Quality established by title II of this Act, which will

insure that presently unquantified environmental

amenities and values may be given appropriate consid-

eration in decisionmaking along with economic and

technical considerations;

(C) Include in every recommendation or report on

proposals for legislation and other major Federal

actions significantly affecting the quality of the human

environment, a detailed statement by the responsible

official on —

(i) The environmental impact of the proposed

action,

(ii) Any adverse environmental effects which

cannot be avoided should the proposal be imple-

mented,

(iii) Alternatives to the proposed action,

(iv) The relationship between local short-term

uses of man’s environment and the maintenance and

enhancement of long-term productivity, and

(v) Any irreversible and irretrievable commit-

ments of resources which would be involved in the

proposed action should it be implemented.

Prior to making any detailed statement, the responsible

Federal official shall consult with and obtain the com-

ments of any Federal agency which has jurisdiction by

law or special expertise with respect to any environ-

mental impact involved. Copies of such statement and the

comments and views of the appropriate Federal, State,

7

and local agencies, which are authorized to develop and

enforce environmental! standards, shall be made available

to the President, the Council on Environmental Quality

and to the public as provided by section 552 of title 5,

United States Code, and shall accompany the proposal

through the existing agency review processes;

(D) Study, develop, and describe appropriate alter-

natives to recommended courses of action in any pro-

posal which involves unresolved conflicts concerning

alternative uses of available resources;

(E) Recognize the worldwide and long-range

character of environmental problems and, where consis-

tent with the foreign policy of the United States, lend

appropriate support to initiatives, resolutions, and pro-

grams designed to maximize international cooperation .

anticipating and preventing a decline in the quality o

mankind’s world environment;

(F) Make available to States, counties, municipal-

ities, institutions, and individuals, advice and information

useful in restoring, maintaining, and enhancing the qual-

ity of the environment;

(G) Initiate and utilize ecological information in

the planning and development of resource-oriented

projects; and |

(H) Assist the Council on Environmental Quality es-

tablished by title II of this Act.

Sec. 103. All agencies of the Federal Government shall

review their present statutory authority, administrative

regulations, and current policies and procedures for the

purpose of determining whether there are any deficien-

cies or inconsistencies therein which prohibit full comphi-

ance with the purposes and provisions of this Act and

shall propose to the President not later than July 1, 1971,

8

such measures as may be necessary to bring their author-

ity and policies into conformity with the intent, purpose,

and procedures set forth in this Act.

Sec. 104. Nothing in section 102 or 103 shall in any

way affect the specific statutory obligations of any

Federal agency (1) to comply with criteria or standards

of environmental quality, (2) to coordinate or consult

with any other Federal or State agency, or (3) to act, or

refrain from acting contingent upon the recommenda-

tions or certification of any other Federal or State

agency.

Sec. 105. The policies and goals set forth in this Act

are supplementary to those set forth in existing authori-

zations of Federal agencies.

STATEMENT OF THE CASE

Petitioners filed suit in the United States District Court

for the District of Columbia against the Administrator of

the General Services Administration and others to require

the Federal Government to prepare an environmental im-

pact statement on its nationwide program for subsidized

parking for federal employees (including more than

40,000 spaces in the metropolitan Washington, D.C. area)

and to prepare an environmental impact statement on a

parking-facility-by-parking-facility basis. Concerning the

latter, petitioners’ suit focused on the largest single park-

ing facility in the District of Columbia, the 1800-car

Great Plaza parking lot.

The General Services Administration has not prepared

an environmental impact statement on its nationwide

parking program and has failed to prepare impact state-

ments concerning individual parking facilities. The GSA

prepared an Environmental Analysis of the Outlease of

9

the Great Plaza Parking Lot but determined that it would

not prepare an environmental impact statement. GSA

made this decision despite its finding that

(t)here will be a continuation of the temporary ad-

verse impacts relative to the operation of the Park-

ing lot. These impacts will last as long as the site is

used as a parking lot; and are primarily a continua-

tion of pollutants contributed to air quality by the

vehicles using the parking lot and a continuation of

the congestion on surrounding streets contributed to

the vehicles using the parking lot.

Page 5, Environmental Analysis.

Petitioners invoked the jurisdiction of the District

Court under 28 U.S.C. Section 1331 (federal question)

and 28 U.S.C. Section 1361 (action to compel officer of

the United States to perform his duty). The District

Court dismissed the complaint by a one-page order. App.

C. The Court of Appeals affirmed, holding that GSA was

not required to prepare an environmental impact state-

ment where the status quo was not changed. App. 18a.

REASONS FOR GRANTING THE WRIT

The decision of the Court of Appeals significantly

undermines the purpose of the National Environmental

Policy Act (NEPA), which is:

To declare our national policy which will encourage

productive and enjoyable harmony between man

and his environment; to promote efforts which will

prevent or eliminate damage to the environment...

42 U.S.C. Section 4321.

(emphasis added).

The prevention of damage to the environment clearly

applies to future programs, or prospectively. The elimina-

tion of damage to the environment unambiguously refers

10

to current damage being done to the environment. NEPA

does not ignor the continuation of existing forms of en-

vironmental harm; actions which preserve the status quo

of environmental degradation should not be allowed to

escape the procedural safeguards of NEPA.

I.

THE DECISION OF THE COURT OF APPEALS IS IN

CONFLICT WITH THE SUPREME COURT’S DECISION

IN KLEPPE y. SIERRA CLUB, 427 U.S. 390

(1976).

A. Where There is a Proposal for a Major Federal

Action Significantly Affecting the Environ-

ment of Either Local or National Scope an

Environmental Impact Statement Must Be Pre-

pared.

In Kleppe v. Sierra Club, 427 U.S. 390 (1976), this

Court stated that respondents could prevail only if there

has been a report or recommendation on a proposal for a

major federal action with respect to the Northern Great

Plains region. “Our statement of the relevant facts shows

that there has been none; instead, all proposals are for

actions of either local or national scope.” 427 U.S. at

399. The agency involved did in fact file both local and

national environmental impact statements. Although the

Court did not rule on the requirement to file such state-

ments the Court held that such impact statements were

sufficient for compliance with NEPA.

GSA has never prepared an environmental impact

statement on its nationwide parking program. GSA has

never prepared an environmental impact statement con-

cerning the Great Plaza Parking lot, one of the largest

government parking facilities in the nation. Petitioners

contend that the respondents are required by the Nat-

11

tional Environmental Policy Act to prepare an impact

statement, either on a facility-by-facility basis or on its

national program, or both. The failure to prepare either is

contrary to the intent of NEPA and is contrary to Kleppe

v. Sierra Club, supra.

B. Prior to Preparing an Environmental Impact

Statement Responsible Officials Shall Consult

With and Obtain the Comments of Any Federal

Agency Which Has Jurisdiction or Special

Expertise With Respect to Any Environmental

Impact Involved.

The Supreme Court recognized that federal agencies

have duties under NEPA that arise even before an impact

statement is required:

This is not to say that Section 102(2)(C) imposes no

duties upon an agency prior to making a report or

recommendation on a proposal for action. The sec-

tion states that prior to preparing the impact state-

ment the responsible official ‘shall consult with and

obtain the comments of any Federal agency which

has jurisdiction by law or special expertise with

respect to any environmental impact involved.”

Thus, the section contemplates a consideration of

environmental factors by the agencies during the

evolution of a report or recommendation on a pro-

posal.

Kleppe v. Sierra Club, 427 U.S. at 406, n. 15.

Both the Environmental Protection Agency and the

Department of Transportation have special expertise

regarding the environmental impact of parking facilities.

App. D, E. Further, EPA has jurisdicion over automobile

parking to the extent that it has an impact on air pollu-

tion. See Arlington County Board v. Richards, 434 U.S.

7,n. 3 (1977).

12

Neither the Department of Transportation nor the

Environmental Protection Agency were consulted con-

cerning GSA’s parking program. Neither agency had the

opportunity to comment on GSA’s actions. GSA’s so-

called “Environmental Analysis” is woefully inadequate,

in part because of this failure to consult and receive

comments from DOT and EPA. This failure to consult

agencies with unquestioned expertise violates the proce-

dural safeguards of the National Environmental Policy

Act and conflicts with this court’s opinion in Kleppe v.

Sierra Club, supra.

Il.

THERE IS A DIVISION AMONG THE CIRCUITS CON—

CERNING THE STANDARD FOR REVIEW OF AN

AGENCY DECISION NOT TO ISSUE AN ENVIRON—

MENTAL IMPACT STATEMENT.

The United States Court of Appeals tor the District of

Columbia stated that its standard for review in the case at

bar is whether the agency acted arbitrarily or abused its

discretion. Committee for Auto Responsibility v. Solo-

mon, 603 F.2d 992 at 1002. App. 15a, 16a. At least

two other circuits disagree, and have held that courts of

appeals:

are to determine whether the responsible agency has

“reasonably concluded” that the project will have

no significant adverse environmental consequences.

City of Davis v. Coleman, 521 F.2d 661 at 673 (9th

Cir. 1975) quoting Save Our Ten Acres v. Kreger,

472 F.2d 463, 467 (5th Cir. 1973).

(emphasis added).

In Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th

Cir. 1973) the Court held that the proper standard for

review of an agency’s threshold determination not to file

an environmental impact statement (EIS) under NEPA is

13

a standard of reasonableness rather than a standard of

arbitrariness or capriciousness, as the Court of Appeals

below has held. This presents a clear division among the

circuits which needs to be resolved.

GSA found that operation of a parking lot has una-

voidable adverse environmental impact.! GSA could not

have met the 5th and 9th circuit standard that its project

“will have no significant adverse environmental impact,”

since GSA found to the contrary. This presents a conflict

among the circuits which should be resolved.

Ill.

THERE IS A DIVISION AMONG THE CIRCUITS CON-

CERNING THE APPLICATION OF THE NATIONAL

ENVIRONMENTAL POLICY ACT TO PROJECTS WHICH

WERE ONGOING OR CONTINUING WHEN THE ACT

WAS PASSED.

The Court of Appeals below held:

GSA has clearly shown in the information provided

in its environmental analysis that current leasing of

the Great Plaza area to a parking management firm

does not alter the status quo ante. Without a change

in parking policy concerning the Great Plaza area

there is no proposal for major federal action signifi-

cantly affecting the environment.

603 F.2d at 1003, App. 17a, 18a.

(footnotes deleted).

The circuit courts have split concerning the applica-

bility of NEPA to ongoing or continuing projects. In En-

vironmental Defense Fund v. Tennessee Valley Authori-

ity 468 F.2d 1164 (6th Cir. 1972), the Court clearly

stated:

1GSA’s finding is quoted under Statement of the case at

p. 9.

i4

Congress’ intent concerning the applicability of the

NEPA to ongoing federal projects is most clearly

stated in section 101(b), by the terms of which it is

apparent that the Congress envisaged ongoing

agency attempts to minimize environmental harm

caused by the implementation of agency programs.

This would encompass not only constant reevalua-

tions of projects already begun to determine wheth-

er alterations can be made in existing features or

whether there are alternatives to proceeding with

the projects as initially planned, but also the consid-

eration of the environmental impact of all proposed

agency action.

The Sixth Circuit held in EDF v. TVA that NEPA applies

to future projects, current projects and ongoing projects

started before NEPA was enacted. This decision is

squarely in conflict with the decision of the Court be-

low.

The First Circuit, in Jones v. Lynn, 477 F.2d 885

(1973), agrees with the Sixth Circuit’s position:

the question must be what agency decisions are yet

to be made, and what decisions, although already

made, remain open to revision.

477 F.2d at 890.

(emphasis added).

GSA’s decision to subsidize employee parking certainly

remains open to revision. Similarly, GSA could reevaluate

its decisions to maintain parking facilities, to lease such

facilities and to pay for these facilities.

See also Arlington Coalition on Transportation v. Volpe,

458 F.2d 1323 (4th Cir. 1972); Scherr v. Volpe, 466 F.2d 1027

(7th Cir. 1972).

15

A clear conflict among the circuits exists concerning

the applicability of NEPA to projects which were com-

menced before NEPA was enacted. The petition for a

writ of certiorari should be granted to clarify the applica-

bility of NEPA to these important federal projects. The

purpose of NEPA to “eliminate damage to the environ-

ment” compels the Court to review the decision below.

IV.

THE CASE AT BAR PRESENTS IMPORTANT FEDERAL

QUESTIONS THAT SHOULD BE REVIEWED BY THE

SUPREME COURT.

The federal questions presented are important because

the applicability of NEPA to major federal actions which

have been ongoing or continuing would have far-ranging

impact on the Federal Government and on the environ-

ment. This court should clarify the scope of impact state-

ments, when national statements are required and when

they are not. Since NEPA provides procedural safeguards

the procedures should be beyond dispute. Similarly, the

standard for review of agency decisions that NEPA does

not require an EIS should be uniform nationwide.

16

CONCLUSION

For all of these reasons, petitioners request that a writ

of certiorari issue to review the decision of the United

States Court of Appeals for the District of Columbia.

Respectfully submitted, |

DANIEL J. POPEO

WASHINGTON LEGAL

FOUNDATION

1612 K Street, N.W.

Suite 605

Washington, D.C. 20006

(202) 857-0240

JOEL D. JOSEPH

JEFFREY HILLER

1712 Eye Street, N.W.

Suite 1010

Washington, D.C. 20006

(202) 338-5560

Counsel for Petitioners.

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT,

[No. 77-1160]

COMMITTEE FOR AUTO RESPONSIBILITY

(C.A.R.), et al.,

Appellants,

Vv.

JAY SOLOMON, et ai.,

Appellees.

[Argued June 6, 1978]

[Decided July 24, 1979]

[ Rehearing Denied Aug. 22, 1979]

APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

(D.C. Civil Action No. 76-2084)

Joel D. Joseph, Washington, D.C., with whom Paul D.

Kamenar, Washington, D.C., was on brief, for appellants.

Kenneth M. Raisler, Asst. U.S. Atty., Washington,

D.C., with whom Earl J. Silbert, U.S. Atty., and John A.

Terry, Asst. U.S. Atty., Washington, D.C., were on the

brief, for appellees. Steven D. Gordon, Asst. U.S. Atty.,

and Sarah W. Wilcox, Atty., Dept. of Justice, Washington,

D.C., also entered appearances for appellees.

2a

Before ROBINSON and WILKEY, Circuit Judges, and

flannery,* United States District Judge for the United

States District Court for the District of Columbia.

Opinion for the Court filed PER CURIAM.

PER CURIAM:

This litigation embodies a challenge to the leasing by

the General Services Administration (GSA) of the Great

Plaza area of the Federal Trianble in Washington, D.C.,

for use as a parking facility for employees of federal

agencies.' Two grounds of attack are advanced. One

is that the National Environmental Policy Act of 1969

(NEPA)? requires an environmental impact statement

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

1 Appellants state in very general terms that their suit is directed

at the “operation” of the Great Plaza parking facility. Brief for

Appellants at 3. In order to allege a violation of NEPA, however,

appellants must challenge major federal action significantly affect-

ing the quality of the human environment. See notes 33-49 infra

and accompanying text. In the instant case, the only event that

even arguably can be considered a major federal action is GSA’s

decision to lease the Great Plaza area for vehicular parking.

We thus assume that it is this decision that is being attacked by

appellants.

The District Court did not focus on GSA’s lease, but instead

centered its analysis on a reassignment by GSA of parking spaces

among government employees, which occurred three days before

appellants filed suit on November 7, 1976. The District Court

found that the reassignment was not a major federal action

requiring an EIS. See note 30 infra. While agreeing with this

conclusion, we think it more fruitful to focus on the lease itself,

to which assignments and reassignments of parking spaces are

incidental.

2Pub.L. No. 91-190, 83 Stat. 852 (1970), 42 U.S.C. §§ 4321-

4361 (1976), as amended by Pub.L. No. 94-52, 89 Stat. 258

(1975); Pub.L. No. 94-83, 89 Stat. 424 (1975); Pub.L. No.

e [footnote continued]

3a

(EIS) prior to leasing. The other is that GSA is violating

the Public Buildings Amendments of 1972? by charging

94-475, 90 Stat. 2071 (1976) [hereinafter cited as codified].

The purposes of NEPA are

[tlo declare a national policy which will encourage produc-

tive and enjoyable harmony between man and his environ-

ment; to promote efforts which will prevent or eliminate

damage to the environment and biosphere and stimulate the

health and welfare of man; to enrich the understanding of

the ecological systems and natural resources important to

the Nation; and to establish a Council on Environmental

Quality.

42 U.S.C. § 4321 (1976). NEPA ordains that all agencies of the

Federal Government shall

. include in every recommendation or report on proposals

for legislation and other major Federal actions significantly

affecting the quality of the human environment, a detailed

statement by the responsible official on —

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be

avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of

man’s environment and the maintenance and enhancement

of long-term productivity, and

(v) any irreversible and irretrievable commitments of

resources which would be involved in the proposed action

should it be implemented.

42 U.S.C. § 4332(2) (C) (1976).

3Section 4 of the Public Buildings Amendments of 1972,

Pub.L. No. 92-313, 86 Stat. 219 (1976), 40 U.S.C. §§ 490(j), (k)

(1976) [hereinafter cited as codified], amended §210 of the

Federal Property and Administrative Services Act of 1949, Pub.L.

No. 81-152, 63 Stat. 378 (1949), current version at 40 U.S.C.

§§ 471 et seq. (1976). The Federal Property and Administrative

Services Act of 1949 states that:

It is the intent of the Congress in enacting this legislation

to provide for the Government an economical and efficient

system for (a) the procurement and supply of perssonal

property and nonpersonal services . . .; (b) the utilization

[footnote continued]

4a

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,* two organizations whose purposes include improve-

ment 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.> It is now leased to Parking

of available property; (c) the disposal of surplus property;

and (d) records management.

40 U.S.C. § 471 (1976).

Section 4 of the Public Buildings Amendments of 1972, 40

U.S.C. § 490(j), (k) (1976), added two new subsections to the

1949 Act. Only subsection (j) bears on the instant litigation, and

it states:

The Administrator is authorized and directed to charge

anyone furnished services, space, quarters, maintenance,

repair, or other facilities (hereinafter referred to as space and

services), at rates to be determined by the Administrator

from time to time and provided for in regulations issued by

him. Such rates and charges shall approximate commercial

charges for comparable space and services.

40 U.S.C. § 490(j) (1976).

4Committee for Auto Responsibility is an unincorporated

association whose primary purpose is to improve the quality of

the human environment by promoting responsible use of auto-

mobiles and public land in ways that minimize adverse environ-

mental effects and conserve finite resources. The Metropolitan

Washington Coalition for Clean Air is a nonprofit corporation

devoted to the preservation and enhancement of environmental

values in the District of Columbia metropolitan area. Its member-

ship consists of approximately 900 citizens in the area. Brief for

Appellants at 5-6.

5 Appendix to Appellant’s Brief (app.) 20.

~

Ja

Management, Inc., a private corporation, for a four-year

term that began on May 15, 1976.° 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.’

The District Court denied appellants’ request for

declaratory and injunctive relief and dismissed their

action.’ They now assert that procedural and substantive

errors infected the proceedings before that court. GSA

opposes their arguments and insists further that appel-

lants 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 “‘ad-

versely affected” or “aggrieved” within the meaning

of Section 10 of the Administrative Procedure Act

(APA).2 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

6 Brief for Appellees at 3.

7Brief for Appellees at 4. ,

8Committee for Auto Responsibility v. Eckerd, Civ. No.

76-2084 (D.D.C. Dec. 6, 1976) (order denying injunctive relief

and dismissing complaint), App. 16.

9Section 10 of the Administrative Procedure Act, Pub.L. No.

89-554, 80 Stat. 392 (1966), 5 U.S.C. § 702 (1976), provides:

A person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action within the

meaning of a relevant statute, is entitled te judicial review

thereof.

6a

protected by the statute allegedly violated.!° 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 inde-

pendent action of some third party not before the

const,"**

We think appellants have satisfied standing require-

ments to charge violations of NEPA but not of the

Public Buildings Amendments of 1972.!2 Appellants

10United States v. SCRAP, 412 U.S. 669, 686, 93 S.Ct. 2405,

2415, 37 L.Ed.2d 254, 269 (1973); Sierra Club v. Morton (Mineral

King), 405 U.S. 727, 733, 92 S.Ct. 1361, 1365, 31 L.Ed.2d 636,

642 (1972); Data Processing Serv. v. Camp, 397 U.S. 150, 152-

153, 90 S.Ct. 827, 829-830, 25 L.Ed. 2d 184, 188 (1970); Barlow

v, Collins, 397 U.S. 159, 164, 90 S.Ct. 832, 836, 25 L.Ed.2d

192, 198 (1970); Coalition for Environment v. Volpe, 504 F.2d

156, 165 (8th Cir. 1974).

11Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S.

26, 41-42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450, 462 (1976).

In Simon, the plaintiffs alleged that a particular revenue ruling

adopted by the Internal Revenue Service and the Treasury Depart-

ment encouraged hospitals to deny medical services to indigents.

The Court held that while the plaintiffs may have alleged injury

in fact—the denial of medical services—they had failed to show

that this injury was traceable to the actions of the defendants,

officials of IRS and the Department. Jd. at 41-43, 96 S.Ct. at

1925-1926, 48 L.Ed.2d at 462-463. See also Duke Power Co. v.

Carolina Environmental Study Group, Inc., 438 U.S. 59, 74-78,

98 S.Ct. 2620, 2631-2633, 57 L.Ed.2d 595, 612-614 (1978);

Warth v. Seldin, 422 U.S. 490, 506-507, 95 S.Ct. 2197, 2209, 45

L.Ed.2d 343, 359 (1975); Linda R.S. v. Richard D., 410 US.

614, 618, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536, 541 (1973);

Southern Mut. Help Ass’n v. Califano, 187 U.S.App.D.C. 307,

312-313, 574 F.2d 518, 523-524 (1977); Animal Welfare Inst.

v. Kreps, 183 U.S.App.D.C. 109, 116-117, 561 F.2d 1002, 1009-

1010, cert. denied, 434 U.S. 1013, 98 S.Ct. 726, 54 L.Ed.2d 756

(1977).

12In the District Court, GSA did not challenge appellants’

standing. On the initiative of this court, the standing question was

argued on appeal.

~~ _—, >

7a

claim that they or their membeers!* 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.!* Harm to health

and conservational interests of parties seeking judicial

review is enough to meet the injury-in-fact test for

standing,'5 and interests of those sorts are clearly within

13An association has standing to bring suit on behalf of its

members when the members would otherwise have standing to

sue in their own right, the interests the organization seeks to

protect are germane to its purposes, and neither the claim asserted

nor the relief requested requires the individual participation of

the members in the lawsuit. Hunt v. Washington Apple Advertising

Comm'n, 432 U.S. 333, 343-344, 97 S.Ct. 2434, 2441-2442, 53

L.Ed.2d 383, 394 (1977); Simon v. Eastern Ky. Welfare Rights

Organization, supra note 11, 426 U.S. at 39-40, 96 S.Ct. at 1924-

1925, 48 L.Ed.2d at 461-462; Warth v. Seldin, supra note 11, 422

US. at 511, 95 S.Ct. at 2211--2212, 45 L.Ed.2d at 362; NAACP

v. Alabama, 357 U.S. 449, 458-460, 78 S.Ct. 1163, 1170, 2

L.Ed.2d 1488, 1497-1498 (1958).

The prerequisites to associational standing are clearly met in this

litigation. Committee for Auto Responsibility and Metropolitan

Washington Coalition for Clean Air allege that health and conser-

vational values of their members have been impaired by GSA’s

failure to prepare an EIS. See notes 14-16 infra and accompanying

text. These values to members are interests germane to the objec-

tives of both organizations. See note 4 supra. The declaratory

and injunctive relief sought by these two organizations does not

require individualized proof, and can be properly resolved in a

group context.

14Brief for Appellants at 5.

'S United States v. SCRAP, supra note 10, 412 U.S. at 684-690,

93 S.Ct. at 2414-2417, 37 L.Ed.2d at 268-271; Environmental

Defense Fund v. Hardin, 138 U.S.App.D.C. 391, 394-395, 428

F.2d 1093, 1096-1097 (1970); Coalition for Environment v.

Volpe, supra note 10, 504 F.2d at 167; Alameda Conservation

[footnote continued]

8a

the zone of protection afforded by NEPA.'°®

Appellants have shown, moreover, that their injury

Ass'n v. California, 437 F.2d 1087, 1091 (9th Cir.), cert. denied,

402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 649 (1971); Harlem

Valley Transport. Ass’n v. Stafford, 360 F.Supp. 1057, 1064

(S.D.N.Y. 1973), aff ‘d, 500 F.2d 328 (2d Cir. 1974). Even though

pollution allegedly caused by the challenged conduct may affect

all people in the surrounding area, a small group of those affected

by the pollution can still attack that conduct in court. United

States v. SCRAP, supra note 10, 412 U.S. at 686-688, 93 S.Ct. at

2415, 37 L.Ed.2d at 269-270; Sierra Club v. Morton (Mineral

King), supra note 10, 405 U.S. at 734, 92 S.Ct. at 1366, 31

L.Ed.2d at 643. See Duke Power Co. v. Carolina Environmental

Study Group, Inc., supra note 11. As the Supreme Court has

stated:

Aesthetic and environmental well-being, like economic

well-being, are important ingredients of the quality of life

in our society, and the fact that particular environmental

interests are shared by the many rather than the few does

not make them less deserving of legal protection through

the judicial process.

Sierra Club v. Morton (Mineral King), supra note 10, 405 U.S. at

734,92 S.Ct. at 1366, 31 L.Ed. 2d at 643.

16United States v. SCRAP, supra note 10, 412 U.S. at 687 n.13,

93 S.Ct. at 2415 n.13, 37 L.Ed.2d at 269 n.13; Robinson v.

Knebel, 550 F.2d 422, 425 (8th Cir. 1977); Cady v. Morton, 527

F.2d 786, 791-792 (9th Cir. 1975); Harlem Valley Transport.

Ass'n v. Stafford, supra note 15, 360 F.Supp. at 1064; James

River v. Richmond Metropolitan Auth., 359 F.Supp. 611, 625

(E.D.Va.), aff'd, 481 F.2d 1280 (4th Cir. 1973); Save the Court-

house Comm. v. Lynn, 408 F.Supp. 1323, 1332-1333 (S.D.N.Y.

1975). The appellants’ interest in a healthful and aesthetic environ-

ment is recognized in NEPA’s congressional declaration of national

environmental policy. NEPA states that

it is the continuing responsibility of the Federal Government

to use all practicable means, ... [to] assure for all Ameri-

cans safe, healthful, productive, and aesthetically, and

culturally pleasing surroundings [and] attain the widest range

of beneficial uses of the environment without degradation,

risk to health or safety, or other undesirable and unintended

consequences ....

42 U.S.C. § 4331(b) (2), (3) (1976).

9a

can be traced to GSA’s failure to prepare an EIS.'7_ 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.!8 In its EIS, GSA would also have had to consider

alternatives to the leasing agreement,!% 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.?° 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 appel-

lants 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 ulleged 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 commer-

cial parking rates from federal employees,?! it seems

clear that these asserted losses fall well outside the zone

safeguarded by the Amendments.?2_ The purpose of the

17See note 11 supra.

18NEPA requires that an EIS detail the environmental impact of

the proposed action, and any adverse environmental effects that

cannot be avoided should the proposal be implemented. 42 U.S.C.

§ 4332(2)(C) (i) (1976). See note 2 supra.

19An EIS must also analyze alternatives to the proposed action.

42 U.S.C. § 4332(2)(C) (iii) (1976). See note 2 supra.

20Brief for Appellants at 3-4.

21See notes 2-4 and accompanying text supra.

22A party will be denied standing if his alleged injury is to an

interest that is not arguably within the zone of interests protected

[footnote continued]

10a

Amendments is to provide the Government with an

economical and efficient system for the procurement,

utilization and disposal of property.?3 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 infringe-

ment of the Amendments.*4

by the statute in question, even though injury in fact has been

sufficiently established. Tax Analysts & Advocates v. Blumenthal,

184 U.S.App.D.C. 238, 566 F.2d 130 (1977); Colligan v. Activities

Club of New York, Ltd., 442 F.2d 686, 691-692 (2d Cir.), cert.

denied, 404 U.S. 1004, 92 S.Ct. 559, 30 L.Ed.2d 557 (1971);

Sissons v. Office of Selective Serv., 454 F.2d 279 (9th Cir. 1972);

Window Sys., Inc. v. Manchester Memorial Hosp., 424 F.Supp.

331, 338 (D.Conn.1976). But see Ballerina Pen Co. v. Kunzig,

140 U.S.App.D.C. 98, 101, 433 F.2d 1204, 1207 (1970), cert.

denied sub nom. National Indus. for the Blind v. Ballerina Pen Co.,

401 U.S. 950, 91 S.Ct. 1186, 28 L.Ed.2d 234 (1971); Scanwell

Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371, 424 F.2d

859 (1970).

23While no general statement of policy was adopted with the

1972 Amendments, a general statement of legislative purpose

can be found in the statute amended, the Federal Property and

Administrative Services Act of 1949, 40 U.S.C. §§471 et seq.

(1976). See note 3 supra. Examination of a general statement

of congressional policy to delineate the zone of interests preserved

by the statute is appropriate where the general provision and

the particular provision allegedly violated share an “‘identity of

purpose.” Tax Analysts & Advocates v. Blumenthal, supra note

22, 184 U.S.App.D.C. at 249, 566 F.2d at 141; Constructores

Civiles de Centroamerica, S.A. v. Hannah, 149 U.S.App.D.C. 159,

164-165, 459 F.2d 1183, 1188-1189 (1972). Clearly, these two

provisions share an identity of purpose since the Federal Property

and Administrative Services Act of 1949, like its subsequent

amendments, was not intended to achieve a wide variety of eco-

nomic and social goals, but simply to accomplish an efficient

allocation of government space. See note 3 supra.

24 Alternatively, we conclude taht this challenge fails also on the

merits. See Part IV infra.

lla

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 pleaings in ruling on a motion to dismiss,

the motion must be treated as one for summary judg-

ment.” 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.*¢

We have no quarrel with appellants’ view of adjective

law. But, contrary to appellants’ position,?” the session

held by the District Court was devoted to appellants’

motion for a preliminary injunction and the merits of

25 Appellants rely primarily on Fed. R.Civ.P. 12(b), which states:

If, on a motion ... to dismiss for failure of the pleading

to state a claim upon which relief can be granted, matters

outside the pleading are presented to and not excluded by

the court, the motion shall be treated as one for summary

judgment and disposed of as provided in Rule 56, and all

parties shall be given reasonable opportunity to present all

material made pertinent to such a motion by Rule 56.

26Had GSA’s motion been for summary judgment, as appellants

argue, it would have called into play Fed.R.Civ.P. 56(c), providing

that it be served at least ten days before the date of the hearing.

Appellants also note that the District Court’s Rule 1-9(d) specifies

that a party opposing a motion shall have ten days from the date

of service to file a statement in opposition to the motion. Since

the hearing before the court concerned appellants’ motions for

injunctive relief and not GSA’s motion to dismiss, we find that

appellants were not prejudiced when GSA filed its motion only

six days prior to the hearing. See also note 28 infra.

27 Appellants incorrectly argue, Brief for Appellants at 10, that

the District Court’s hearing concerned GSA’s motion to dismiss.

12a

its case for a permanent injunction,*® matters previously

consolidated for hearing.2? 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.*°

28The District Court, in its preparatory remarks, clearly in-

formed both parties of the hearing’s purpose, Transcript (Tr.) 2,

App. 5, and throughout the hearing counsel for both parties

focused their arguments on appellants’ applications for preliminary

and permanent injunctive relief. As counsel for GSA noted during

the hearing:

Plaintiffs ask for an injunction against the assignment and

the effectiveness of the assignment of the parking places of

the Great Plaza lot. Those issues are moot since both the

assignment and the effectiveness of the assignment have been

accomplished.

They also ask that all parking in the lot be enjoined. As

our papers point out, there is no legal basis for doing so.

Tr. at 10, App. for Appellants at 13.

Appellants’ reliance on Fed.R.Civ.P. 12(b), therefore, is mis-

placed since the applicability of the rule is triggered only when a

court considers a party’s motion to dismiss and reaches a decision

thereon. See Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232,

31 L.Ed.2d 569 (1972), cited by appellants, where the Court

remanded the case because the trial court, at a preliminary hearing

on a motion to dismiss, received matters outside of the pleadings.

29Fed.R.Civ.P. 65 (a) (2) states:

Before or after the commencement of the hearing of an

application for a preliminary injunction, the court may order

the trial of the action on the merits to be advanced and

consolidated with the hearing of the application.

30At the conclusion of the hearing on the merits, the District

Court informed the parties of its findings. The court found that

PMI is an indispensable party to this action; and not

having been made s0, it justifies dismissal.

In addition to that, the Court holds that the reassignment

of these parking spaces is not a major federal action which

requires an environmental impact statement.

[footnote continued]

l3a

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 consolida-

tion,*! and must have understood that the hearing on

the preliminary and permanent injunctive relief was

meant to be their final day in court.3? 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

The Court further is of the view, particularly after study-

ing the legislative history of 4490 [40 U.S.C. § 490] that the

action in this case of the government complies with the

sections of 4490(j) and (k) [40 U.S.C. §§ 490(j) and (k)],

when read together ...

The Court will, therefore, deny the motion for pre-

liminary and permanent injunction, and will dismiss the

complaint.

Hearing Transcript (Tr.) at 11-12, App. 14-15. In view of our

resolution of other issues, we find it unnecessary to review the

court’s decision to dismiss the action for failure to join an indis-

pensable party.

31 Brief for Appellees at 16-17.

32Crumble v. Blumenthal, 549 F.2d 462, 466 (7th Cir. 1977).

See also Singleton v. Anson County Bd. of Educ., 387 F.2d 349

(4th Cir. 1967); Puerto Rican Farm Workers v. Eatman, 427 F.2d

210 ‘ig Cir. 1970); 7 Moore’s Fed. Practice § 65.04[4] (2d ed.

1978).

33NEPA is activated only by actions of that nature. See note 2

supra.

34*Environmental Analysis-Outlease of Great Plaza Parking

Lot, Washington, D.C.,”’ reprinted in App. 19-28, [hereinafter

cited as ‘Environmental Analysis’’].

l4a

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.”°® Appellants respond by contending

that the approximately 1,800 vehicles utilizing the lot

daily contribute pollutants that significantly degrade

local air quality.*7 Since “GSA’s [parking] program

35Environmental Analysis, App. 23. This report also noted that

the level of pollutants may have declined in recent years because

of the institution of a carpool-priority system which has increased

the average occupancy per vehicle:

The continued use of the Great Plaza Parking Lot will not

degrade air quality from the present level, since the pol-

lutants generated by the cars using the parking lot are already

included in the present level.

Furthermore, GSA’s mandatory carpool requirements are

increasing the average vehicle occupancy of the cars using

the lot. For example, the average occupancy per vehicle has

increased from 4.27 in the initial assignment effort in 1974

to 4.6 in the most recent reissuance of permits.

This increase in vehicle occupancy means people who were

using alternative modes of transportation, either mass transit

or automobile, are now carpooling. Consequently, the

overall vehicle miles traveled has been reduced by the amount

of mileage traveled by those who gave up driving alone and

joined carpools. However, the amount of this reduction has

not been calculated.

id. (footnote omitted).

36Environmental Analysis, App. 26.

37In support of their argument, appellants cite GSA’s Environ-

mental Analysis, which states:

There will be a continuation of the temporary adverse

impacts relative to the operation of the Parking Lot. These

[footnote continued]

15a

continues to harm the environment,” appellants main-

tain, an EIS must be prepared even though the leasing

arrangement is a continuing project.

An agency commencing federal action has the initial

and primary responsibility for ascertaining whether an

EIS is required.*? An initial agency determination on

impacts will last as long as the site is used as a parking lot;

and are primarily a continuation of pollutants contributed

to air quality by the vehicles using the parking lot and a

continuation of the congestion on surrounding streets

contributed to the vehicles using tne parking lot.

Environmental Analysis, App. 24.

Appellants urge, in the alternative, that even if operation of

the Great Plaza parking lot is not major federal action, then the

“federal parking program as a whole’? must be action of that

character, since the cumulative effect of all federal parking lots

will have a significant impact on the environment. Brief for

Appellants at 17. The record, however, does not support appel-

lants’ claim that GSA has a national or areawide parking plan, and

that is a matter beyond the range of judicial notice. Such a plan

would be a necessary predicate for NEPA’s requirement of an EIS.

See Kleppe v. Sierra Club, 427 U.S. 390, 96 S.Ct. 2718, 49

L.Ed.2d 576 (1976), where the Court held that a regional EIS

on coal-related operations is not required if a regional plan or

program does not exist. The Court stated that

respondents’ desire for a regional environmental impact state-

ment cannot be met for practical reasons. In the absence

of a proposal for a regional plan of development, there is

nothing that could be the subject of the analysis envisioned

by the statute for an impact statement.

Id. at 401, 96 S.Ct. at 2726, 49 L.Ed.2d at 585. Moreover, even

if a national or areawide parking program did exist, appellants have

failed to show federal ‘“‘action’’ taken with respect to that program.

See note 2 supra.

38 Brief for Appellants at 14.

39Kleppe v. Sierra’ Club, supra note 37, 427 U.S. at 412-414,

96 S.Ct. at 2731-2732, 49 L.Ed. 2d at 591-593 (1976); Scientists’

Inst. for Public Information, Inc. v. Atomic Energy Comm'n, 156

U.S.App.D.C. 395, 410, 481 F.2d 1079, 1094 (1973); Morning-

side Renewal Council v. Atomic Energy Comm’n, 482 F.2d 234,

[footnote continued]

16a

this matter is judicially vulnerable only when the agency

has abused its discretion or has acted arbitrarily.4° 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.*!

238 (2d Cir. 1973); Image of Greater San Antonio v. Brown, 570

F.2d 517, 522 (5th Cir. 1978); First Nat? Bank of Chicago v.

Richardson, 484 F.2d 1369, 1380-1381 (7th Cir. 1973).

40 As the Supreme Court has recently noted:

The determination of the region, if any, with respect to

which a comprehensive statement is necessary requires the

weighing of a number of relevant factors, including the

extent of the interrelationship among proposed actions and

practical considerations of feasibility. Resolving these issues

requires a high level of technical expertise and is properly

left to the informed discretion of the responsible federal

agencies. ... Absent a showing of arbitrary action, we must

assume that the agencies have exercised this discretion

appropriately.

Kleppe v. Sierra Club, supra note 37, 427 U.S. at 412, 96 S.Ct. at

2731, 49 L.Ed.2d at 591 (citation omitted). See also Vermont-

Yankee Nuclear Power Corp. v. National Resources Defense Coun-

cil, 435 U.S. 519, 554-555, 98 S.Ct. 1197, 1217, 55 L.Ed. 2d 460,

486 (1978); Calvert Cliffs Coordinating Comm. v. United States

Atomic Energy Comm’n, 146 U.S.App.D.C. 33, 39, 449 F.2d

1109, 1115 (1971); Hanly v. Kleindienst, 471 F.2d 823, 828-829

(2d Cir. 1972), cert. denied, 412 U.S. 980, 93 S.Ct. 2290, 36

L.Ed.2d 974 (1973); Nucleus of Chicago Home Owners Ass’n v.

Lynn, 524 F.2d 225, 229-230 (7th Cir. 1975), cert. denied, 424

U.S. 967, 96 S.Ct. 1462, 47 L.Ed.2d 734 (1976); Robinson v.

Kneble, supra note 16, 550 F.2d at 427.

41 Kleppe v. Sierra Club, supra note 37, 427 U.S. at 410 n. 21,

96 S.Ct. at 2730 n. 21, 49 L.Ed.2d at 590 n. 21; Maryland-Nat’l

Capitol Park & Planning Comm’n v. United States Postal Serv.,

159 U.S.App.D.C. 158, 169, 487 F.2d 1029, 1040 (1973); Fund

for Animals v. Frizzell, 402 F.Supp. 35, 37 (D.D.C. 1975), aff'd,

174 U.S.App.D.C. 130, 530 F.2d 982 (1976). Cf. Greater Boston

Television Corp. v. FCC, 143 U.S.App.D.C. 383, 393, 444 F.2d

841, 851 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2233, 29

[footnote continued]

17a

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,4? 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.

The duty to prepare an EIS normally is triggered when

there is a proposal to change the status quo.*° GSA

L.Ed.2d 701 (1971); Wait Radio v. FCC, 135 U.S.App.D.C. 317,

321, 418 F.2d 1153, 1157 (1969), later appeal, 148 U.S. App.D.C.

179, 180, 459 F.2d 1203, 1204, cert. denied, 409 U.S. 1027, 93

S.Ct. 461, 34 L.Ed. 2d 321 (1972).

42 Brief for Appellees at 23.

43]d. The record does not disclose whether an EIS was prepared

on the environmental impact of the Federal Triangle facilities. It

is unlikely, however, that it was since that project was completed

long before NEPA became effective.

44Since a federal building or project usually generates a need for

automobile parking, it is reasonable to assess parking and related

problems—such as congestion and noise and air pollution— when

the project itself is subject to an EIS. That approach strikes us

as a suitable means of meeting the Council of Environmental

Quality’s regulations, which state:

The statutory clause ‘“‘major Federal actions significantly

affecting the quality of the human environment” is to be

construed by agencies with a view to the overall, cumulative

impact of the action proposed, related Federal actions and

projects in the area, and further actions contemplated.

40 C.F.R. § 1500.6(a) (1977).

4SIn Andrus v. Sierra Club, _— U.S. —_—, 99 S.Ct. 2335, 60

L.Ed.2d 943 (1979), the Supreme Court ruled that NEPA does

[footnote continued]

18a

has clearly shown in the information provided in its

environmental analysis*® 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.

To compel GSA to formulate an EIS under these

circumstances would trivialize NEPA’s EIS requirement

not require federal agencies to prepare E1S’s accompanying appro-

priation requests, since such requests are neither “proposals for

legislation” nor “proposals for . . . major federal action” for

purposes of § 102(2)(C). 42 U.S.C. § 4332(2)(C) (1976), quoted

in note 2 supra.

46To ensure the agency’s understanding of the statutory stand-

ards and its adequate consideration of the problem, we deem it

important that the agency state its reasons for not preparing an

EIS. Asphalt Roofing Ass'n v. ICC, 186 U.S.App.D.C. 1, 12, 567

F.2d 994, 1005 (1977); Maryland-Nat’l Capitol Park & Planning

Comm'n v. United States Postal Serv., supra note 41, 159 U.S.

App.D.C, at 168-169, 487 F.2d at 1039-1040; Arizona Pub. Serv.

Co. v. FPC, 157 U.S.App.D.C. 272, 279, 483 F.2d 1275, 1282

(1973); Scientists’ Inst. for Public Information, Inc. v. Atomic

Energy Comm'n, supra note 39, 156 U.S.App.D.C. at 410-411,

481 F.2d at 1094-1095; Hanly v. Kleindienst, supra note 40, 471

F.2d at 835-836. Here we find the information provided by GSA

in its Environmental Analysis sufficient to meet this demand.

47A revision or expansion of an agency program in a manner

constituting major action significantly affecting the quality of

human environment must be accompanied by an EIS, Andrus v.

Sierra Club, supra note 45, — U.S. at —— , 99 S.Ct. at 2343-

2344, 60 L.Ed.2d at 955; S.Rep.No. 296, 91st Cong., Ist Sess.

20 (1969).

48See note 45 supra, The President has recently taken steps to

eliminate free or subsidized parking for federal employees. See

15 Weekly Compilation of Presidential Documents 613 (Apr. 5,

1979). These actions are not yet effective, and even if they were,

would not moot appellants’ claim that an EIS should be prepared

whenever space in federal parking facilities is leased to federal

employees.

19a

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,’? 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 1972°° by

allocating parking fees between federal employees and

their respective agencies.5' 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

49 Vermont-Yankee Nuclear Power Corp. v. National Resources

Defense Council, supra note 40, 435 U.S. at 551, 98 S.Ct. at 1215-

1216, 55 L.Ed, 2d at 484; Scientists’ Inst. for Public Information,

Inc, v. Atomic Energy Comm'n, supra note 39, 156 U.S.App.D.C.

at 407-408, 481 F.2d at 1091-1093; Environmental Defense Fund

v. Corps of Engineers, 492 F.2d 1123, 1131 (5th Cir, 1974); lowa

Citizens for Environmental Quality v, Volpe, 487 F.2d 849, 852

(8th Cir, 1973); Trout Unlimited v, Morton, 509 F.2d 1276, 1283,

1286 (9th Cir, 1974),

50See text supra at notes 3-4,

5!1The employees pay the parking management firm $11.25 per

month for each parking space. GSA charges the agencies an

additional $28.50 per month for each space used by their respec-

tive employees. Brief for Appellees at 25-26. Appellants do not

contend that the $39.75 monthly total per space was less than

the prevailing commercial rate, Brief for Appellants at 27,

52 Reply Brief for Appellants at 2.

20a

to challenge violations of this legislation.5? 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.**

53See notes 21-24 and accompanying text supra.

54Interpretation of a statute by the agency charged with its

execution should be given great deference by the courts. E&. /.

du Pont de Nemours & Co. v. Collins, 432 U.S. 46, 54-55, 97

§.Ct. 2229, 2234, 53 L.Ed. 2d 100, 108 (1977); Lewis v. Martin,

397 U.S. 552, 559, 90 S.Ct. 1282, 1286, 25 L.Ed.2d 561, 567

(1970); Zemel v. Rusk, 381 U.S. 1, 11, 85 S.Ct. 1271, 1278, 14

L.Ed,2d 179, 187 (1965); Forester v. Consumer Prod. Safety

Comm'n, 182 U.S.App.D.C. 153, 162, 559 F.2d 744, 783 (1977);

Haviland v. Butz, 177 U.S.App.D.C. 22, 27, 543 F.2d 169, 174

(1976); Lenkin v. District of Columbia, 149 U.S.App.D.C. 129,

141, 461 F.2d 1215, 1227 (1972) and cases cited in notes 81-82

therein.

The Administrator of General Services has congressional author-

ization to maintain and operate governmental buildings, and to

exact payment for the utilization of services and space by other

federal agencies:

Whenever and to the extent that the Administrator has

been or hereafter may be authorized by any provision of law

other than this subsection to maintain, operate, and protect

any building, property, or grounds situated in or outside the

District of Columbia, including the construction, repair,

preservation, demolition, furnishing, and equipment thereof,

he is authorized in the discharge of the duties so conferred

upon him...

to obtain payments, through advances or otherwise, for

services, space, quarters, maintenance, repair, or other

facilities furnished, on a reimbursable basis, to any other

Federal agency . .. and to credit such payments to the

applicable appropriation of the General Services Adminis-

tration,

40 U.S.C, § 490(a) (1976).

55 Zuber v, Allen, 396 U.S. 168, 192, 90 S.Ct. 314, 327-328, 24

L.Ed.2d $45, 360 (1969); United States v, American Trucking

[footnote continued]

a

oe

Zla

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.*® Such an

approach is a reasonable interpretation of Section 490(j),

Ass‘ns, 310 U.S. 534, 547-549, 60 S.Ct. 1059, 1066-1067, 84

L.Ed. 1345, 1353-1354 (1940); Certified Color Mfg. Ass’n v.

Matthews, 177 U.S.App.D.C. 137, 147, 543 F.2d 284, 294 (1976);

Patagonia Corp. v. Board of Governors of Fed. Reserve Sys., 517

F.2d 803, 812 (9th Cir. 1975).

GSA was actively involved in framing language for the Public

Buildings Amendments of 1972. On August 4, 1971, GSA sub-

mitted to the Speaker of the House a draft of legislation proposing

amendment of two statutes—the Public Buildings Act of 1959 and

the Federal Property and Administrative Services Act of 1949—to

. require using agencies to budget and pay for the use of

space and related services and to authorize the General

Services Administration, subject to conventional Congres-

sional and Executive controls, to finance its public buildings

operations from the receipts arising therefrom.

Requiring all agencies to finance the cost of the space

they occupy is consistent with the performance budgeting

concept under which total program costs are reflected in the

cost accounts of the program agency...

Section 4 would authorize the Administrator to establish

such charges for the property management services provided

other agencies. This would be accomplished by adding

a new subsection (j)(1) to section 210 of the Property

Act which concerns the operation of buildings and related

activities.

H.R.Rep.No. 989, 92d Cong., 2d Sess. 11-13 (1972); reprinted in

[1972] U.S.Code Cong. & Admin. News, pp. 2370, 2375.

56See Affidavit of Jay Cohen, Transportation Specialist, General

Services Administration, App. 41. The affidavit states that the

$28.50 per month paid by the agency “‘is the Standard Level User

Charge (SLUC) required by 40 U.S.C. § 490(j).’’ Affidavit of Jay

Cohen, App. 41. We interpret this to mean that the agency pays

the commercial rate for the space itself and the employee pays the

additional cost of maintaining and operating the space.

22a

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 is excess of their needs.*’

57The congressional purpose underlying passage of Section

490(j) of the Public Buildings Amendments of 1972 emanated

from a concern that unless agencies are charged commercial rates

for the space they use, their demands for space would exceed their

actual needs. The House Report stated:

H.R. 10488, as reported, would require Government depart-

ments and agencies to pay user charges for the space they

occupy in GSA-operated buildings. Such user charges would

be deposited into the buildings fund... .

When the fund proposed in the bill is implemented, each

agency would have to budget for its space needs, just as it

now budgets for its personnel, travel, and other adminis-

trative costs. This would promote more efficient, more

economical use of space by Government agencies.... Making

agencies accountable for the space they use should result in

more efficient space utilization by agencies.

H.R.Rep.No.989, 92d Cong., 2d Sess. 7-8 (1972), reprinted in

[1972] U.S.Code Cong. & Admin.News, pp. 2372-2373. Similar

language was found in the Senate report:

Last, it is apparent to the committee that, at least in

part, the government’s current space problem may be at-

tributed to a misallocation of existing office space among the

Federal agencies. The G.S.A. presently bears the budgetary

responsibility for the cost of the office space occupied by

most of the Executive branch. Since the departments and

agencies themselves are not assessed in their individual

budgets for the value of the space which they occupy, they

have little incentive to conserve. Instead, the tendency is for

agencies to request from G.S.A. more space than they

legitimately need, and then to hoard it. Aside from the fact

that an accurate performance budget is defeated unless

agencies are held accountable for all of their costs, the

diseconomies of the present arrangement are clear.

S.Rep.No.412, 92d Cong., Ist Sess. 4 (1971).

en

BOS al Rib Be we

23a

We find no merit in appellants’ allegations that GSA,

in leasing the Great Plaza area to a parking manage-

ment firm, violated either NEPA or the Public Buildings

Amendments of 1972. The judjment of the District

Court is accordingly

Affirmed.

WILKEY, Circuit Judge:

I concur in the result.

24a

APPENDIX B

UNITED STATES COURT OF APPEALS

For the District of Columbia Circuit

September Term, 1978

No. 77-1160

[Filed Aug 22 1979]

Committee for Auto Responsibility (C.A.R.) et al.,

Appellants,

V.

Jay Solomon, et al.,

Appellees.

BEFORE: Wright, Chief Judge; McGowan, Tamm, Lev-

entha!, Robinson, MacKinnon, Robb, Wilkey, and Wald,

Circuit Judges

ORDER

The suggestion for rehearing en banc filed by appel-

lants Committee for Auto Responsibility (C.A.R.), et

al., having been transmitted to the full Court and no

judge in regular active service having requested a vote

with respect thereto, it is

ORDERED, by the Court, that appellants’ aforesaid

suggestion for rehearing en banc is denied.

Per Curiam

FOR THE COURT:

/s/ George A. Fisher

George A. Fisher

Clerk

Circuit Judge McGowan did not participate in the fore-

going order.

25a

APPENDIX C

UNITED STATES DISTRICT. COURT

For the District of Columbia

Civil Action No. 76-2084

[Filed Dec 6 1976]

COMMITTEE FOR AUTO RESPONSIBILIT Y, et al.,

Plaintiffs,

Vv.

JACK ECKERD, GENERAL SERVICES

ADMINISTRATION, et al.,

Defendants.

ORDER

Upon consideration of plaintiffs’ motion for Pre-

liminary Injunction and memorandum of points and

authorities in support thereof and defendants’ opposi-

tion thereto, and Defendants’ motion to dismiss and

memorandum of points and authorities in support there-

of, it is by the Court this 6th day of December, 1976,

ORDERED that plaintiffs’ motion for preliminary

injunction and permanent injunction be, and the same

hereby are, denied; and it is

FURTHER ORDERED that the complaint filed herein

be, and the same hereby is, dismissed.

/s/ Hart, J.

United States District Judge

26a

APPENDIX D

38 Fed. Reg. 30629

Parking restrictions. Parking restrictions are used in the

majority of plans to discourage automobile use in urban

centers. Restrictions in the central business district can

significantly reduce carbon monoxide levels. -As a

measure to discourge the commuter from using his

vehicle, parking limitations can effectively reduce emis-

sions during the rush hour and result in reduced oxidant

concentrations later in the day. On-street parking regu-

lations can also result in decreased congestion and

reduced emissions due to improved traffic flow.

In most EPA proposals, all parking facilities on which

the actual construction work had not begun by August

15, 1973, would have been subject to review in response

to comments received, this definition has been revised

to exempt such facilities if the actual construction con-

tract has been let by that date.

However, where a developer has undertaken to build

a facility, whether individually or as part of a larger

structure, but the actual construction contract has not

yet been signed, review will still be required. It is EPA’s

judgment that the project in such circumstances will still

be at an early enough stage so that review to determine

the possibility of decreased use of single-passenger auto-

mobiles will still be justified. However, the Administrator

also recognizes that such review may be unduly burden-

some in particular cases, and comment on this point is

particularly invited. If the comments indicate that a less

restrictive definition is justified, the promulgated regula-

tions will be amended accordingly.

te ta a

27a

APPENDIX E

United States Department of

Government Transportation

Urban Mass Transportation

Memorandum Administration

DRAFT DATE: 5-12-77

In reply

refer to: Burbank/UPP-20

SUBJECT: Federal Subsidies of Employee Parking

FROM: Acting Administrator

TO: The Secretary

Recently, John Freeland of the Washington, D.C.

Council of Governments wrote to request your views on

a Federal Parking Policy drafted by COG’s Transporta-

tion Planning Board. This policy, which is based on

elimination of Federal employee parking subsidies, has

been raised several times in the past, but to no avail.

I believe I speak not only for myself but also for the per-

sonal and professional opinions of UMTA staff when I

strongly urge you to consider the following in responding

to COG’s inquiry.

Federal workers account for about half of the roughly

140,000 commuters’ cars that come every day into the

central employment area—downtown Washington, Capi-

tol HIll, the Pentagon, and nearby Arlington. About

41,000 of those cars are parking in spaces provided by

Federal agencies and Congress. Three-fourths of those |

spaces are free. The rest cost from $5 to $20 per month,

appreciably less than commercial rates which sometimes

exceed $50 a month.

28a

The decision to provide free and minimal cost parking

to Federal employees is an old one and one which has

been the recurring subject of local editorials, a frequent

source of chagrin to those who promote the Depart-

ment’s TSM requirement, and also the current target

of a lawsuit before the U.S. Court of Appeals here.

Criticism of free and subsidized Federal parking has

increased in recent years, based first on air pollution

concerns and more recently on energy conservation con-

cerns. The President’s energy conservation program has

added momentum to the criticism, as has the opening

of D.C. METRO. As METRO adds more stations and

struggles to attract auto drivers, Federal employee park-

ing subsidies will be one of its greatest impediments.

Our efforts to encourage carpooling, vanpooling, bi-

cycling, and walking are also undermined by parking sub-

sidies. While many agencies, including DOT, assign park-

ing spaces mainly to carpools, there are many excepted .

employees and widespread evidence of phantom car-

pooling; charging commercial parking rates would ensure

that those who drive alone bear a more realistic cost for

the energy and environmental burden they impose or

would encourage drivers to round up real riders to share

costs. And charging market rates would not impose great

hardships on people who pool; $40 a month divided

among four people would be just $10 apiece. Under-

scroing the need for strong carpool incentives is the

evidence that, nationally, carpool programs have not been

as successful as is often claimed. Preliminary results of

the 1975 Journey-to-Work Survey indicate that 2/3

of all urban work trips—including transit work trips—

are made by drivers who are alone in their cars.

Beyond the energy, environmental, METRO, and

carpooling issues, however, is the overriding issue of

29a

equity. We are frankly bemused by the frequent defenses

of low commuter parking charges on income-distribution

grounds. The most recent data on income distribution

for work trips (1970 Census) show that Washington,

D.C. auto drivers have a median income of $9500, second

only to a median income of $9600 for New York City

drivers. In sharp contrast are the median incomes of

Washington public transportation commuters—$6200—

and of D.C. auto passengers—$7500. Yet our Federal

employee policy is to provide the following kinds of sub-

sidies, relative to commercial rates in the area:

auto driver $40/month

two-person carpool $20/month/person

four-person carpool $10/month/person

transit rider 0

We believe the Federal parking policy has a powerful

effect on other employers in Washington, pressuring them

to provide a similar benefit to their employees. We

applaud the efforts of COG and the District in particular

to reduce rush-hour auto use through various parking

measures. We note in particular the fact that D.C. govern-

ment converted to comercial rates for its employees in

1973, that employees must pay $57/month to park at

COG, that D.C. has developed and instituted a residential

parking program, and that D.C. has embarked on a major

campaign to tighten and streamline enforcement of rush-

hour parking violations.

The goals of the COG parking policy are too important

and the relevance of parking subsidies to these goals is

too substantial to again be brushed aside. We urge you to

give substantive and meaningful support to COG’s efforts

and we offer to assist in the development of anew DOT

or Federal parking policy which is consistent with

national goals. At a minimum, we feel that the time

30a

has arrived for a critical examination of Federal employee

parking policies and DOT employee parking policies in

particular.

Finally, I want to make it clear that I do not urge this

in the interest of mass transit in particular; in fact I am

skeptical of the merits of COG’s proposal to earmark

parking charges for METRO. Rather, my position is

rooted in concern that our promotion of “‘balanced urban

transportation”’ should be substantive rather than rhetori-

cal and procedural. The Department should not shirk

this opportunity to bring outdated Departmental and

Federal parking policies into harmony with the new

priorities of the country.

Charles F. Bingman

Acting