# Petition — Committee for Auto Responsibility v. Freeman

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 445 U.S. 915

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1267%3A1. Public record. Not legal advice.