Opposition Brief — City of Evanston v. Regional Transportation Authority

| . Supreme Court, U.S.

it Be BD

No. 87-549 : DEC 8 1987

JOSEPH F. SPANIOL, JR.

In the Supreme Court of the United Sotates

OCTOBER TERM, 1987

CITY OF EVANSTON, ET AL., PETITIONERS

v.

REGIONAL TRANSPORTATION AUTHORITY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Assistant Attorney General

ANNE S. ALMY

ROBERT L. KLARQUIST

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTION PRESENTED

Whether the district court properly dismissed peti-

tioners’ complaint for lack of standing.

(i)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Association of Data Processing Service Orgs. v. Camp,

er i are 7, 10

Bender v. Williamsport Area School Dist., 475 U.S. 534

ee ee cea Whee ene eee ess 7

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ........ 7

Glass Packaging Institute v. Regan, 737 F.2d 1083 (D.C.

Cir.), cert. denied, 469 U.S. 1035 (1984) ............. 10

O’Shea v. Littleton, 414 U.S. 488 (1974) ............... 7

Rapid Transit Advocates, Inc. v. Southern Cal. Rapid

Transit Dist., 752 F.2d 373 (9th Cir. 1985) ........... 2

Sirerra Club v. Morton, 405 U.S. 727 (1972) ............ li

Valley Forge Christian College vy. Americans United for

Separation of Church & State, 454 U.S. 464 (1982) .... 8

aren Vi, cee, ek ©). SPU CEPTS)... ww cece wees 7

Statutes, regulations and rule:

National Environmental Policy Act of 1969, 42 U.S.C.

EE eee 2

ee eae es Ps Or 2

Urban Mass Transportation Act of 1964, 49 U.S.C. App.

ee 2

Regional Transportation Authority Act, Ill, Ann. Stat.

ch. 111 2/3, paras. 701.01 ef seg. (Smith-Hurd Supp.

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IV

Regulations and rule — Continued: Page

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-549

CITY OF EVANSTON, ET AL., PETITIONERS

Vv.

REGIONAL TRANSPORTATION AUTHORITY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINION BELOW

The decision of the court of appeals (Pet. App. la-11a)

is reported at 825 F.2d 1121.

JURISDICTION

The judgment of the court of appeals was entered on

July 10, 1987. The petition for a writ of certiorari was filed

on October 3, 1987. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

STATEMENT

This action concerns a tract of land in the City of

Evanston, Illinois, which respondent Regional Transpor-

tation Authority purchased from respondent National

Steel Service Center, Inc., for use as a bus maintenance fa-

cility. The purchase and conversion of the tract is being

funded, in part, with federal funds provided by respond-

ent Urban Mass Transportation Administration (UMTA)

(1)

2

of the United States Department of Transportation.' Peti-

tioners-alleged that the purchase and operation of the tract

as a bus maintenance facility would violate the Urban

Mass Transportation Act of 1964, 49 U.S.C. App. (&

Supp. III) 1601 et seg., and the National Environmental

Policy Act of 1969, 42 U.S.C. (& Supp. IID) 4321 ef seq.

Pet. App. la-2a. The district court dismissed the com-

plaint for lack of standing and because it found that the

Statutes petitioners sought to invoke do not create a

private right of action (id. at 12a-13a). The court of ap-

peals affirmed (id. at la-1la).

1. The Urban Mass Transportation Act (UMT Act)

authorizes the Secretary of Transportation to make grants

or loans to assist states and local public bodies and agen-

cies in financing the planning, development, construction

and improvement of mass transportation projects. Prior

to approving funds for a project, the Secretary must be

satisfied that various requirements set forth in the UMT

Act have been met. The applicability of the various

statutory requirements depends upon the section of the

UMT Act under which financial assistance is sought. The

Secretary of Transportation administers this grant and

loan program through UMTA. See generally Rapid Tran-

sit Advocates, Inc. v. Southern Cal. Rapid Transit Dist.,

752 F.2d 373, 375-376 (9th Cir. 1985).

UMTA, as are other federal agencies, is also bound by

the requirements of the National Environmental Policy

Act of 1969 (NEPA). Section 102(2)(C) of NEPA, 42

U.S.C. 4332(2)(C), provides that all federal agencies shall

“include in every recommendation or report on proposals

' Following the initiation of this suit, UMTA provided federal

funding for the purchase of the tract and the tract was conveyed to the

Regional Transportation Authority... UMTA has not yet provided

funding to complete the conversion of the existing structure.

for legislation and other major Federal actions significant-

ly affecting the quality of the human environment” a

detailed statement (customarily referred to as an “En-

vironmental Impact Statement” or “EIS”) concerning the

environmental impact of the proposed action and related

matters. An EIS need not be prepared where the proposed

action will not “significantly” affect the quality of the

human environment.

The Council on Environmental Quality (CEQ) has pro-

mulgated regulations governing agency compliance with

NEPA, including the establishment of uniform procedures

for all federal agencies to follow in determining whether,

when, and how to prepare an EIS. 40 C.F.R. Pt. 1500.

These regulations also direct that each federal agency

adopt its own procedures, as necessary, to supplement the

CEQ procedures. 40 C.F.R. 1507.3(a). In response to this

directive, UMTA and the Federal Highway Administra-

tion have promulgated regulations at 23 C.F.R. Pt. 771

for implementing NEPA and the core CEQ procedures.

Section 1507.3(b) of the CEQ regulations (40 C.F.R.

1507.3(b)) requires that the procedures adopted by the

agencies include specific criteria for, and identification of,

three classes of action. Class I projects include actions that

may significantly affect the environment and thus require

an EIS. Class II projects, termed “categorical exclusions,”

include actions that do not normally have a significant ef-

fect on the environment and thus would not require an

EIS. Class III projects are those in which the environmen-

tal impacts cannot be initially determined. For Class III

projects, the agenci¢s have to prepare an environmental

assessment to determine whether an EIS is required.?

2 An “environmental assessment” is a public document setting forth

concisely the evidence and analysis that leads an agency to conclude

that a given action will or will not have a “significant impact” so as to

require a full EIS. 40'C.F.R 1508.9.

4

Consistent with CEQ’s classification procedures,

UMTA’s regulations enumerate 29 categorical exclusions.

23 C.F.R. 771.115(b)(1)-(29). Categorical exclusions are

defined in 23 C.F.R. 771.117 as “categories of actions

which do not involve significant environmental impacts or

substantial planning, time or resources. These actions will

not induce significant foreseeable alterations in land use,

planned growth, development patterns, or natural or

cultural resources.” Categorical exclusions include (23

C.F.R. 771.115(b)(25)):

Construction of new bus storage and maintenance

facilities in areas used predominantly for industrial or

transportation purposes where such construction is

not inconsistent with existing zoning and located on

Or near a street with adequate capacity to handle an-

ticipated bus and support vehicle traffic.

2. The City of Evanston, its mayor, and two aldermen

commenced this action by filing a complaint (Pet. App.

14a-29a) alleging that respondent Suburban Bus Division

(PACE), a division of the Regional Transportation

Authority (RTA),> was planning to purchase a tract of

land in Evanston from respondent National Steel Service

Center, Inc., and thereafter convert the property for use as

a bus maintenance facility. The complaint further alleged

that this purchase and conversion was being funded in part

with federal funds from UMTA, which was named as a

defendant along with the United States Department of

Transportation, PACE, RTA, and National Steel (id. at

16a).

The complaint contained three counts. Count I (Pet.

App. 27a) alleged that the proposed sale of the tract from

> RTA is a municipal corporation organized and operating pursuant

to the provisions of the Regional Transportation Authority Act, III.

Ann. Stat. ch. 111 2/3, paras. 701.01 ef seg. (Smith-Hurd Supp.

1987), for the purpose of providing aid and assistance for public

transportation in northeastern Illinois.

3

National Steel to PACE was “unreasonable, invalid and

void and against public policy” because PACE had agreed

to a purchase price more than $1 miilion over the fair

market value of the tract, as estimated by petitioners.

Count I also alleged that the Agreement of Sale (id. at

37a-44a) was invalid because it had not t been approved by

PACE’s Board of Directors.

Count II (Pet. App. 27a) asserted that the proposed sale

was null and void because no proper notice had been given

for public hearings on the proposed acquisition and “the

City of Evanston was not given direct notice of said hear-

ings” (ibid.). Count II further alleged that the project

review conducted by the Northeastern Illinois Planning

Commission was invalid because the hearing notice

understated the amount of money involved in the acquisi-

tion of the property.

Count III (Pet. App. 28a) alleged that, under NEPA,

UMTA could not validly provide federal funds for the

project without first filing an EIS because such funding

would be a major federal action concerning a project that

would be “highly detrimental to the environment and

public health and safety of the individual plaintiffs and the

City of Evanston * * *” (ibid.). Count III asserted that

UMTA had incorrectly determined that the project was

covered by the categorical exclusion set forth in 23 C.F.R.

771.115(b)(25) and, consequently, the agency had wrongly

concluded that no EIS was required.

The prayer for relief (Pet. App. 28a-29a) requested the

court to enter judgment declaring the Agreement of Sale

to be null and void and that PACE and UMTA had acted

arbitrarily, unreasonably and against public policy by

agreeing to the proposed sale price. Petitioners also re-

quested the court to declare that the failure to prepare an

EIS was contrary to law; that “lack of proper notice was

given by UMTA and by [the Northeastern Illinois Pian-

ning Commission] with respect to [the project review] and

6

the approval of the grant herein”; and that the location of

the proposed facility would be “highly detrimental” to the

environment and the-public health and safety of respond-

ents. /bid. Finally, petitioners requested the court to enter

temporary and permanent injunctive relief barring re-

spondents from proceeding with the proposed action, in-

cluding the disbursement of federal funds (ibid.).

The district court dismissed the complaint on

respondents’ motions (Pet. App. 12a-13a).4 The court

found that petitioners lacked standing because the com-

plaint failed sufficiently to allege any distinct injury to

petitioners from the proposed action. The court also con-

cluded that the federal statutes upon which petitioners’

allegations were premised do not creaie a private right of

action.

3. The court of appeals affirmed in a per curiam opin-

ion (Pet. App. la-1la). First, the court found (id. at 4a-6a)

that the UMT Act does not create a private right of action.

Second, the court held in any event (id. at lla) that peti-

tioners lacked taxpayer standing to challenge the disburse-

ment of funds by UMTA or PACE. And, third, the court

ruled that, due to their failure to allege some distinct in-

jury in fact to their environmental interests, the petitioners

“have not sufficiently demonstrated that they have stand-

ing under NEPA” (ibid.). “It is, of course,” the court

noted, “not necessary to plead evidence, but in these par-

ticular circumstances [petitioners] must provide some sug-

4 Petitioners state (Pet. 3, 13) that the district court dismissed the

complaint without giving them leave to amend. Nothing in the

dismissal order, however, indicated that the court would deny leave to

file an amended complaint —the order was simply silent concerning

leave to amend (Pet. App. 12a-13a). Rule 15(a), Fed. R. Civ. P., states

that leave to amend “should be freely given when justice so requires.”

Petitioners, however, never attempted or sought leave to amend their

complaint, but instead elected to stand on their original complaint and

appeal.

7

gestions that this change causes particular and specific

adverse environmental consequences affecting [them]” (id.

at 10a). The court stated that plaintiffs had failed to allege

how the bus garage would be more detrimental to them

than the steel business previously on the site. The in-

dividual petitioners did not even “allege where they live in

relation to the property”; “[nJor do the City and its mayor

allege specifically * * * how some conjectured decline in

property values and loss of tax revenues, even if con-

sidered to be within the zone of protected interests, will

result from the change of use” (id. at 10a-11a).

ARGUMENT

In order to establish his standing to maintain a suit, a

plaintiff must allege, inter alia, “that the challenged action

has caused him injury in fact, economic or otherwise.”

Association of Data Processing Service Orgs. v. Camp,

397 U.S. 150, 152 (i970). The injury alleged musi be

“distinct and palpable” (Warth v. Seldin, 422 U.S. 490,

501 (1975)), and not “abstract” or “conjectural” or

“hypothetical.” City of Los Angeles v. Lyons, 461 U.S. 95,

101-102 (1983); O’Shea v. Littleton, 414 U.S. 488, 494

(1974). A plaintiff cannot obtain standing by asserting

some “generalized grievance” against the defendant;

rather, he is required to “allege specific, concrete facts

demonstrating that the challenged practices harm him”

(Warth v. Seldin, 422 U.S. at 508 (emphasis in original)).

Such facts must affirmatively appear in the record (Bender

v. Williamsport Area School Dist., 475 U.S. 534 (1986))

and the burden of alleging them rests squarely upon the

plaintiff (Warth v. Seldin, 422 U.S. at 518 (“It is the

responsibility of the complainant clearly to allege facts

demonstrating that he is a proper party to invoke judicial

resolution of the dispute and the exercise of the court’s

remedial powers.”)).

The courts below correctly concluded that petitioners

had failed to satisify this fundamental requirement. No

8

important or novel question of standing is_posed by the

facts of this case. Petitioners’ complaint was properly

dismissed on a straightforward application of settled prin-

ciples, and their fact-bound assertion that the complaint

did set forth specific allegations of injuries sufficient to

meet the requirements of standing does not warrant fur-

ther review.

a. Count I of the complaint (Pet. App. 27a) alleged

that the Agreement of Sale was unreasonable, invalid, and

contrary to public policy because PACE had agreed to pay

National Steel a purchase price greatly in excess of the fair

market value of the tract. The complaint, however, does

not specify how petitioners would be injured by the sup-

posedly excessive purchase price, above and beyond their

general status as taxpayers. The individual petitioners

merely alleged that they are taxpayers (id. at 15a), and

they “are plainly without standing to sue as taxpayers.”

Valley Force Christian College v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 482

(1982). As for petitioner City of Evanston, the complaint

fails to contain any allegation whatsoever that it will be re-

quired to bear, directly or indirectly, any portion of the

allegedly excessive cost of the land.

Count I also alleged that PACE’s Board of Directors

had failed to approve the specific amount of the purchase

price. But even if we assume that there is some legal re-

quirement that they do so (and no such requirement is

stated in the complaint), petitioners have not demon-

strated that they have suffered any legally-cognizable in-

jury thereby. The purported injury, if any, would be only

to the Board, whose authority was supposedly usurped by

its own Officers.

b. Count II of the complaint (Pet. App. 27a) alleged

that proper notice of public hearings concerning the pro-

posed acquisition was not given and that “the City of

Evanston was not given direct notice of said hearings.”

Nowhere in the complaint or record, however, is there any

|

9

indication that respondents breached any legal duty to give

such notice or that Evanston and the individual petitioners

did not actually receive effective notice of, and have an

opportunity to attend, any hearings. Indeed, Paragraph 17

of petitioners’ complaint (id. at 23a-24a) appears to in-

dicate that petitioners or their representatives did attend

the project-review hearing and that “as a result of said

hearing, the official project review recommendations of

the Northeastern Illinois Planning Commission included

the objections to the proposed acquisition and construc-

tion of the northshore garage facility * * *.”

Count II also alleged that the review conducted by the

Northeastern Illinois Planning Commission “was totally

invalid in that the notice understated the amount of money

involved in the acquisition of the subject property” (Pet.

App. 27a). But the record contains no indication that peti-

tioners were in any way injured by this alleged understate-

ment. As we have noted, there is no allegation that peti-

tioners’ own funds, other than as general tax revenues, will

be used to pay for the project.

c. Count III of the complaint (Pet. App. 28a) alleged

that UMTA was required by NEPA to prepare an EIS

prior to providing federal funds for the project. The

claimed injuries from this purported omission were set out

in Paragraph 23 of the complaint (id. at 26a-27a) where it

was alleged, in conclusory terms, that the project would

deprive Evanston and its citizens of tax revenues, that it

would be in violation of local zoning, and that it would

cause traffic congestion, pollution, noise and other,

unspecified, environmental impacts, all leading to lower

property values for nearby residential properties.

These generalized allegations are insufficient to

establish standing to maintain an action under NEPA.°

5 Petitioners err in asserting (Pet. 25) that the court of appeals “con-

ceded standing under NEPA,” but “then concluded that the allega-

tions of the complaint were insufficient to state a cause of action

under NEPA.” The court of appeals expressly based the NEPA por-

10

Pecuniary injuries, such as decreased property values and

loss of city tax revenues, are not even “arguably within the

zone of interests to be protected or regulated” by NEPA

(Association of Data Processing Service Orgs. , 297 U.S. at

153). NEPA was enacted to further environmental, not

pecuniary, interests. Glass Packaging Institute v. Regan,

737 F.2d 1083, 1091-1094 (D.C. Cir.), cert. denied, 469

U.S. 1035 (1984); 40 C.F.R. 1508.14. Nor is the bare

allegation that the proposed project will violate Evanston’s

zoning Ordinance and introduce an inharmonious land use

sufficient to carry plaintiffs’ burden of alleging specific

facts showing a definite, concrete injury to their en-

vironmental interests. Petitioners have not alleged any

facts that tend specifically to indicate that the proposed

use of the tract would have environmental consequences

that differ in any significant degree from the prior in-

dustrial use of the tract.°®

Finally, the complaint alleges that the project would

cause “congestion, pollution, noise and other adverse en-

vironmental impacts” (Pet. App. 27a). But the individual

petitioners do not allege that they reside in, or use, the

tion of its decision upon lack of standing and not upon failure to state

a claim. The court concluded that portion of its opinion by stating

(Pet. App. Ila (citation omitted)):

The complaint is framed in general boilerplate language which

demonstrates no specific relation of these plaintiffs to this piece

of property. Standing is not conferred under NEPA merely

because plaintiffs generally disfavor a proposed use of a par-

ticular piece of property, if they do not allege some distinct injury

in fact to their environmental interests. Plaintiffs have not suffi-

ciently demonstrated that they have standing under NEPA.

° As the court of appeals noted (Pet. App. 9a n.2), it was not until

after PACE had commenced negotiations with National Steel for pur-

chase of the property that Evanston amended its zoning ordinance to

change the use of the property as a bus garage from a permitted use to

a special use. The court of appeals concluded that petitioners could

not establish standing “regardless of how the zoning ordinance has

been manipulated during this controversy” (id. at 10a).

oe fF

11

area that would purportedly be affected by these en-

vironmental impacts. Sierra Club v. Morton, 405 U.S.

727, 737-741 (1972). And the City of Evanston has not

alleged any specific, evidentiary facts tending to indicate

how the proposed project would result in any additional

evironmental impacts beyond those already present from

the existing industrial use of the tract.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

ROGER J. MARZULLA

Assistant Attorney General

ANNE S. ALMY

ROBERT L. KLARQUIST

Attorneys

DECEMBER 1987

ss US. GOVERNMENT PRINTING OFFICE: 1987— 202.037/60148