*1 Cir., 1980) (5th (prejudgment in F.2d 1196 award for viola
terest should be allowed on Fair Labor 17 of the Stan
tion Section Drugs, Act); Usery v. Associated
dards
Inc., (5th 1976)(“It Cir. 538 F.2d inter prejudgment
is well established found
est should be allowed on the amount due.”). event a trial court any But in deny
does not have unbridled discretion contexts, In other we have
the award. only way wronged
recognized that “the him
party made whole is to award can be re
interest from the time he should have Arkansas money.”
ceived the Louisiana & Co., Export
Railway v. Drum (5th 1966). We have likewise rec Cir.
ognized good faith is not a defense to prejudgment
the assessment interest. Inc., Stores, City
Brennan v. case, In this it is clear that deprived reemployment
plaintiff was by
rights explicitly granted to him Con
gress. only way he can be made whole awarding prejudgment interest. him deny plain
It was an abuse of discretion to interest, we accord prejudgment
tiff part the district
ingly reverse
court’s order. PART;
AFFIRMED IN IN REVERSED
PART; AND REMANDED. CLUB,
PIEDMONT HEIGHTS CIVIC
INC., al., Plaintiffs-Appellants, et al.,
Thomas D. et MORELAND
Defendants-Appellees.
No. 80-7414. Appeals,
United States Court of
Fifth Circuit.
BUnit
Feb. *3 Myer, Edgar Jr.,
John R. Neely, A. Atlan- ta, Ga., for plaintiffs-appellants. Kontio, Rampacek, Anne S. Peter Sidney Smith, Jr., Atlanta, Ga., O. for Central At- Inc., al., Progress, lanta et amicus curiae. Harper, Atty., William L. U. S. Curtis Anderson, Castellani, Robert J. Asst. U. S. Bolton, Attys., Gen., Atty. Arthur K. Ro- Matson, Gen., Atty. land F. Asst. Robert S. Stubbs, II, Gen., Atty. Executive Asst. Don Atlanta,' Gen., ways in and Langham, Atty. Georgia, A. First Asst. Marion around Jr., Gordon, Mallard, Sp. William D. claiming inter alia1 that Federal defend- Atlanta, Ga., Gen., Attys. Asst. Kenneth N. complied require- ants had not with the Weinstein, Dept, Transp., Wash- U. S. ments of the National Environmental Poli- C., defendants-appellees. ington, D. cy (“NEPA”), Act of 1969 42 U.S.C. §§ seq.2
et complaint original Plaintiffs filed their 30, 1979, May challenging adequacy of MORGAN, Before ANDERSON Impact the Final Environmental State- CLARK, Judges. A. Circuit THOMAS (“EISs”) approved seg- ments for three (1) highway improvements: ments of MORGAN, Judge: R. Circuit LEWIS (that segment Downtown Connector primary appeal issue in this is wheth- highway where 1-75 and 1-85 become one *4 judge er the district abused his discretion in highway running from Williams Street prelimi- a denying plaintiffs’ motion for (2) interchange), north to the Brookwood judge nary injunction. We hold that (that segment highway Brookwood of the acted within his discretion in that join, running where 1-75 and 1-85 north on plaintiffs a likeli- had not demonstrated Road), (3) 1-85 to Lenox and DeKalb 1-85 hood of success on the merits and that the (that segment running of 1-85 north of plaintiffs outweighed by harm to the 1-285, perimeter Lenox Road to ex- public the harm to the defendants and the pressway). The district court held eviden- interest. We therefore affirm the decision tiary hearings to determine whether to of the district court in favor of the defend- grant injunction and after- preliminary ants. parties supplemental wards the filed briefs. (here- Plaintiffs-appellants appeal in this awaiting plaintiffs While filed decision “plaintiffs”) inafter referred to as are two enjoin specific three renewed motions to associations, Heights civic Piedmont Civic None actions of the defendants. of these Club, Inc. and Atlanta Coalition 23, 1980, granted. May motions were On Inc., Crisis, Transportation and four individ- filing original year almost a after the brought uals that this action in United complaint, judge plain- the district denied District Court for the Northern Dis- States original preliminary tiffs’ motion for in- Georgia De- Georgia against trict of junction plaintiffs had grounds partment Transportation and its Com- strong “failed to demonstrate a likelihood (hereinafter Transportation missioner of re- they prevail on the merits” [would] defendants”) ferred to as “State as well as any plaintiffs harm to the was “out- Department Transpor- the United States weighed by the harm done to defend- tation, Secretary Transportation, The public ants as well as the interest.” Administration, and the Highway Federal plaintiffs’ district court denied motion for a (herein- Highway Federal Administrator stay pending this court af- appeal, and defendants”). referred to as Federal after expedited granted firmed that denial but sought enjoin construction of Plaintiffs high- projects appeal.3 to widen interstate several Act, Policy challenge im- 42 U.S.C.
1. Plaintiffs also National Environmental provements Highway seq. Federal-Aid 4321 et § Act, seq., 23 U.S.C. 101 et the Parklands § 138; Statute, reader, 23 U.S.C. the Rivers and Har- § a list of 2. For the convenience of the n 403; acronyms pro- bors Act of 33 U.S.C. the Federal commonly § case is used in this 1344; Act, § Water Pollution Control 33 U.S.C. Appendix vided A. Act, the Administrative Procedure 5 U.S.C. 706(2), regulations promulgated thereun- § stay plaintiffs argument 3. At moved for a oral however, appeal, only on the der. This is based case, pending but this court decision in the injunction preliminary denial of the under the 14, 1980. denied that motion on October transporta- regulations pertaining urban I. funding for to receive federal tion in order case are challenged in this projects pur- transportation projects. The specific planned by currently three of seven programs develop plans was to pose allevi- and Federal defendants the State with a view toward transportation needs Atlanta, problems traffic the serious ate plans. plan- long-range comprehensive transportation prepare Georgia, by the Atlanta existing ning process was undertaken the future. The needs of intersecting (“ARC”) two as the Gov- in Atlanta includes Regional Commission form an hour- expressways Planning north-south Metropolitan designated ernor’s Inter- through city. configuration glass (“MPO”).5 In 1975 the ARC Organization (1-75) to southeast runs northwest state 75 Development Plan Regional its issued and Inter- through metropolitan area identified, which (“RDP”), system plan (1-85) runs northeast to southwest. state 85 among things, other along with highway configuration This through year for the Atlanta area needs of Atlanta two-county area most ex- needs included an 2000. The identified highway, Inter- perimeter encircled highways, system, new tensive mass transit perimeter (1-285). Within the state 285 widenings, including and several district, 1-75 business near the downtown case. The ARC also ones at issue in this as one converge and continue and 1-85 Improvements prepared a This section of highway for several miles. priority of which indicated the Program within At- highway system the interstate projects for the near future and needs for Down- commonly referred to as the lanta is *5 following year. the town Connector.4 the Based on the recommendations project, highway improvement The first im- proposed defendants RDP the State Improvements the Downtown Connector the Brookwood Inter- provements High- Plan, the Federal approved by was highway section where 1-85 change, the (“FHWA”) Septem- way Administration Downtown merge 1-75 north of the included the widen- plan ber of 1971. This Connector, for the and in 1975 a Draft EIS of the ing eight six lanes to lanes from was circulat- Improvement Brookwood Plan where 1-75 and 1-85 Downtown Connector project included re- approved. ed and This on this highway. are one Construction Interchange and designing the Brookwood temporarily delayed, highway segment was (actually building expressway a six-lane however, regional planning of a because width) running north to Le- eight lanes in process which was about to commence. existing parallel with the four- nox Road required by 23 planning process This following year the expressway. lane In the other federal statutes and U.S.C. 134 and § (TIP), system portation improvement program which 4. For an illustration of the Atlanta, proposed construction in see the needs for the next the map Appendix identifies the years priority B. three to five in order of and lists projects proposed year. for the next 23 C.F.R. Regulations promulgated by the Federal 450.118, 450.306, 450.308, 450, subpart Part §§ (FHWA) Highway and the Ur- Administration project TIP and the C. If a is listed the (UMTA) Administration to ban Mass Transit planning process has been certified a area’s provisions implement the of the Federal-Aid (continuing, cooperative, comprehensive) “3C” Act, seq., Highways and the § 23 U.S.C. et UMTA, the FHWA and Certification of Act, 49 U.S.C. Urban Mass project may eligible be for federal funds. Cer- seq., require the of each 1601 et Governor § tification, however, only of the includes review designate an MPO to serve in each state to process planning not of the substan- itself and planning agency in the state as the urban area proposal. merits For a full discus- tive (1980). 450.106 This § for the area. C.F.R. regulations governing the urban sion of the any public cooperate with trans- must process, transportation planning see Atlanta transpor- portation systems planning for the Crisis, Transp. Inc. v. Atlanta Coalition Regional develop and must tation needs of the area Commission, 1338-40 system plan long-term goals. for both short and (5th Cir. 450.108(c), regula- 450.116. The §§ C.F.R. development of a trans- tions further proposed widening prevail merits, (2) State defendants on a substantial eight plaintiff from four to lanes of 1-85 DeKalb threat that will irreparable suffer 1-285, injunction perime- injury granted, north of Lenox Road to if the (3) is not ter A Draft expressway. injury plaintiff EIS was circulat- threatened must out- weigh injunction approved. ed and In 1977the defend- the threatened harm the State may defendant, (4) do to proposed changes project granting ants certain in the preliminary injunction design will not disserve the of the Connector which Downtown public interest. plaintiff Id. at 572. The adding high included occupancy two vehicle persuasion bears the burden of (HOV) all four already approved eight- lanes to the factors in order to be entitled the extra- lane highway. reviewing After the State relief of ordinary preliminary injunction. comprehensive defendants’ reevaluations of In the at bar case the issue of likelihood of project changes, these FHWA with success particularly signifi- merits is approved project, significant no cant6 and thus will social, be considered first. changes in the economic and environ- primary issues on the merits are mental effects would require prep- the rapid whether transit should aration of a supplemental EIS. Final EISs have been considered as an alternative in Improvement for both the Brookwood Plan highway improve- EIS and whether the Improvement and the 1-85 DeKalb Plan plans segmented ment were improperly were approved by Secretary Trans- adequate avoid environ- portation in and this lawsuit was mental effects. brought May year. of the following A. Alternatives. II. applied by standard this Plaintiffs challenge adequacy pre
court on the
of the
appeal
denial of
Improvements
EISs
Brookwood
liminary injunction is abuse of discretion. Plan
Downtown Connector Im
Inc.,
Opticks,
Vision
provements
Center v.
Plan7 on
ground
that the
1979). The
judge’s
deci
statements did not
the Metropoli
consider
sion
light
should be considered in
Rapid
(MAR
tan Atlanta
Authority
Transit
*6
granting
TA)
four factors
for the
of
required
system
a
rail
as an
to
alternative
preliminary injunction
expansion.
as set out in Canal highway
102(2)(C)(iii)
Section
(5th
Authority
Callaway,
requires
v.
posed
purpose
action. The
alterna
action,
tion,
low-
postponing
providing
is to assure that
a
requirement
tives
service,
a
fa-
agency
decision-making
providing
er
of
reduced
government
level
body
achieving
cility (lanes/design),
methods of
an
or de-
has considered
increase
goal
proposed
other than the
23 C.F.R.
public transportation.”
desired
crease in
Morton,
addition,
(1980).
771.18(j)
action.
Club v.
the Council
Sierra
§
813,
1975).
(5th
815
Consideration of
guidelines
Cir.
cite
Quality
on Environmental
for action forces
possibilities
other realistic
example
mass transit as an
the kind of
to consider the environmental
agency
an
alternative that should be considered in
evaluate those ef
project
effects of a
prepared
for a
construction
against
the effects of alternatives.
fects
project.
(1980). These
40 C.F.R.
1500.8
§
NEPA, however,
specify
fails to
what “al
although
examples,
important
agency
for
be
ternatives” must
considered. The con
guidance,
applicable
are not mandates
cept
regulation
is
rea
limited
federal
every
degree
which
situation.
alternatives,
requires
sonable
consider
considered,
should
indeed
alternative
be
or
feasible,
only
non-speculative
ation
alter
whether an alternative should
considered
771.81(j) (1980).
natives. 23 C.F.R. §
See
all,
existing
with
at
varies
circumstanc-
Corp.
Vermont Yankee Nuclear Power
Power
es.
In Vermont Yankee Nuclear
Council, Inc.,
Natural Resources Defense
552,
Corp.,
at
supra, 435
98 S.Ct.
U.S.
551,
1197,
519,
1215,
98
55
435 U.S.
concept
that “the
the Court noted
(1978);
L.Ed.2d
De
460
Natural Resources
evolving
Develop-
is an
one.”
‘alternatives’
Council,
Morton,
Inc. v.
(RDP) ap- plan in the that regional includes all considered. It is true the plan, including the proved transportation adopted planning pursuant regional to Improvements, Brookwood Area Station process subject to an evaluation. is not EIS implementation of a 100-mile MARTA However, plan element of the when each system, five-county rail well as a fixed subject analysis, proposed will be to such to system, capacity. feeder bus utilized held, the analysis and as we have at that Department’s proposal present- not any pri- time into should take to of the ed as an alternative utilization envi- approved projects or which affect the system, MARTA but is intended to com- existing background of the part ronment as plement system, providing thus At- Club, proposal. Kleppe See Sierra with lanta a balanced multi-modal trans- 20, n. n. U.S. system. portation (1976). This avoids approach L.Ed.2d Improvements, Fi- Brookwood Station Area plaintiffs’ require but “catch-22” does EIS, indicated, App. As p. nal or officials of the rehashing by state federal highway improve- RDP recommended both previ- that planning process has occurred ments and mass transit. Both the Brook- pursuant ously to federal law. Improvements and the wood EIS 1-85 Im- alia, argue, citing inter Plaintiffs further provements for the EIS discussed need Goldschmidt, Grazing Fields Farm v. projects in of the recommendations terms 1980), (1st materials F.2d 1068 Cir. According both of the RDP. to the Draft contained in the administrative record but (and Final and Brookwood EISs the Final bring in the EIS contained cannot EIS), 1-85 the recommendations for all inadequate compliance into with EIS improvements were based this is that gist argument NEPA. The traffic models that assumed existence support- information contained the RDP rapid Draft system. rail Brookwood ing position that both MARTA and the 43-44; EIS, EIS, App. pp. Final Brookwood highway improvements necessary are can- 68; EIS, p. pp. App. Final 1-85 4-5. The not be by used the State defendants other various EISs contained references justify ex- their refusal to discuss MARTA MARTA which indicate existence plicitly precise holding in the EIS. The implicitly rapid was considered transit Court, however, referred First Circuit throughout planning process. There- incorporated any way to studies “not into adequately fore record reveals that the was agencies EIS.” The court concerned in obligations satisfied their subsequent NEPA. case about studies made to an were not for circula- EIS which available suggest Plaintiffs that the refusal of tion at time of In the approval. court require consideration of the. case at the Draft Final bar EISs improve- MARTA in the Improve- both the Brookwood and 1-85 ment EISs creates a “catch-22” when con- underly- ments referred to the RDP as the light holding court’s sidered of this ing high- source of for the recommendation Atlanta Coalition on the way improvements. Although reports Crisis, Commission, Regional Inc. v. Atlanta EIS, were with were they not circulated In that case readily public. available to the The State the court NEPA did not held that required were not to reiterate defendants Development Regional Plan an EIS figures facts in the RDP ARC, contained adopted at least until an ele- justifying the need both mass transit into plan ripened ment of the a concrete highway improvements. The reference “proposal major federal action.” The to the RDP contained in the Brookwood and position holding of plaintiffs’ is that satisfy ARC, the DeKalb 1-85 EISs sufficient holding ACTC v. procedural require- and substantive district court result below a situation the ments of where the environmental effects of NEPA.
439
six-lane,
Against
eight-lane,
Destruction v.
In Movement
and no-build alterna-
(D.Md.1971),aff’d,
F.Supp.
Therefore,
Volpe, 361
1360
tives.
on
issue
inadequate
of
1973),
(4th
500
Cir.
the court faced a
alternatives,
F.2d 29
consideration of
we hold that
problem involving
similar to the ones
facts
judge
the district
did not abuse
discre-
his
in the case at bar. Pursuant to recommen
finding
suggested
tion in
that the
alterna-
plan
resulting from
extensive
dations
adequately
tives were
considered in the
agency
ning process,
highway
the federal
EISs under review.
building
seg
an interstate
proposed the
ment,
prepared
Interstate
and
EIS
Segmentation
B.
did
consider
project.
on the
The EIS
not
plain
primary
In another
attack
transit
existing plans
mass
allege
segmentation
an improper
tiffs
challenged
ground
on that
and others. The
projects.
general
As
rule
court refused to
NEPA, segmentation
alternative, relying
of mass transit as an
improper
is
purposes
prepar
primarily on
fact that mass transit was
ing
See,
impact
environmental
statements.
yet
certainty
not
in the
g.,
Callaway,
v.
question.
e.
Sierra Club
982
corridor in
The court further
F.2d
However,
found, however,
(5th
1974).
against
Cir.
that no evidence had been
rule
transit,
segmentation
mass
required
applied
introduced
show that
if
is not
to be
built,
to meet the
every
would
alone sufficient
appro
situation. To determine the
traffic
demands. Substantial evidence
priate scope for an
courts
have con
transportation systems
both
need for
pro
sidered such factors
whether
as
plans
existed
recommendations
(1)
logical termini, (2)
posed segment
has
properly
as
The court
introduced
exhibits.
independent
(3)
substantial
utility,
has
does
concluded that no
of NEPA oc
violation
opportunity
not foreclose the
to consider
'
curred from the
failure
alternatives,
(4)
irretrievably
does not
consider mass transit as an alternative or
closely
commit federal funds for
related
extensively discuss the matter as
no- projects.
Brinegar,
Swain v.
F.2d
See
Although
build alternative.
the case at bar
(7th
1976);
Cir.
Trout Unlimited v.
merits,
is not a decision on the
the factual Morton,
(9th
1974);
“post hoc
of
state
rationalizations”
ployee responsible
preparing
separate project,
for
the EISs.
justifying
indeed a
the
Plaintiffs, however,
any
do not indicate
au
of
the environmental effects
any
thority,
this court has
found
and
of
the
project
that
alone. Several of
cases
explicitly
to
authority, requiring an EIS
question
on
of whether the
have turned
scope
that determine the
discuss the factors
termini,
projects
logical
particularly
have
cases
cite several
EIS. Plaintiffs
project
highway project to be
where the
is a
that
an EIS
proposition
which stand for
major
built between two
cities. See Swain
any
“fully
should
disclose” and document
364;
Brinegar, supra,
v.
542 F.2d
Indian
bearing
factors
ultimate decision
Volpe, supra,
v.
Lookout Alliance
certainly agrees
agency.
This court
11. In
because the function of
these cases
recog
but
general proposition,
with that
between
highway
provide
was to
access
every
detail
évery
nizes that
conceivable
cities,
segments
court
that
determined
cannot be
possible challenge to the decision
length
highway
of the
shorter than
full
anticipated
Yan
in an EIS. See Vermont
independent purpose
required
had no
kee,
551,
supra,
U.S. at
central 49 L.Ed.2d their support *11 Interchange project the con will alleviate argument the that cumulative effect of the meet, highways where the two and gestion separate highway projects and MARTA segment help 1-85 the the DeKalb should requires construction an con- overall to EIS populated flow heavily from the traffic sider the consequences. environmental corridor of Atlanta. northeast Kleppe the held Court that the coal- several part although interrelated as of an projects, mining in projects the Northern Great transportation plan, individu overall should region require Plains did not a comprehen- ally to alleviation of the traffic contribute sive because there was proposal EIS no for Atlanta, in not problems and are therefore region-wide cite, action. Plaintiffs how- segmented projects. improperly separate ever, language Kleppe, footnote 20 of Furthermore, independent because of the provides pertinent part: which projects, of the of utility approval each contemplated Should actions later reach does project irretrievably commit fu stage the of proposals, impact actual or limit availa ture resources alternatives on statements them will take into account transportation agencies. ble to the the of their approval upon effect the ex- Against In Movement Destruction environment; isting and the of condition Volpe, supra, F.Supp. 361 the dis that presumably environment will reflect segmentation faced the issue of trict court proposed earlier actions and their effects. concerning highway projects in and around 410, n. 20, at Id. S.Ct. at n.20. of case city Baltimore. In that the argument Plaintiffs’ here is at- another challenged high plaintiffs the failure of tempt require to consideration of MARTA way agency prepare to an overall EIS. along with the cumulative effects of plaintiffs attempted prove that projects three highway themselves in projects reality major project, were in one highway project Again plaintiffs’ EISs. ar- relying primarily on a letter the feder from gument Although must fail. a full approved highway al administrator that explicit discussion of these envi- cumulative highway projects an over several based on helpful, may have been ronmental effects transportation plan the 3-A all known as requires case law NEPA only an that system. Under these circumstances the agency comply with the “statutory mini- “major court held there was no federal ma.” Vermont Yankee Nuclear Power requiring action” an entire EIS for the Corp., U.S. at at bar, projects As in the scheme. case at 1214. The district court below was correct separately proposed accomplish were in Supreme Court’s state- dependent purposes only appeared to be ment in explicit footnote was not an they an part plan overall because were command, rather but a restatement plans included earlier for responsibilities under NEPA. As with the regional transportation plan A area. issue, proposals alternatives projects prepared by independent planners outside projects and approved pending that are highway agency require does not proposal the time of another con- should be plan proposal because the is not a part sidered as of the environmental back- major federal action. Atlanta Council ground against which a decision should Transportation Crisis, supra, However, require made. NEPA does not though 1333. Even individual agency restate all of the environmen- are projects proposed pursuant plan to a projects tal effects of other presently under scheme, ning pro NEPA does not underlying consideration. Where the data grammatic plan EIS for the entire at the approved projects pend- base includes proposed. time the individual are ing proposals, “statutory minima” rely
In a NEPA has met. In the case plaintiffs related claim been at bar language Supreme opinion underlying in the Court’s data base included effects from growth along in the dence of record with highway and MARTA pending
the other
high-
current need for the
to determine
evidence
This data
used
proposals.
improvements justifies the
traffic, air,
way
that would
quality
noise
projects.
judge’s finding in the case.
exist as
result
considering
approach
Although another
claims,
argue
the plaintiffs
In related
effects of the
the cumulative environmental
failure of
NEPA was violated
used, it was
been
projects could have
updated
agency to circulate
use their
unreasonable for
in the
and to
population data
Draft EISs
considering
proposals
other
approach
on the Down-
prepare
supplemental EIS
*12
Because
underlying
the
data base.
through
project
the data was
town Connector
after
cumula-
record that the
it is clear from the
ideal
all infor-
available.
In the
situation
con-
prior proposals were
tive effects of the
in the
mation contained
Final EIS should
drafting
approving
by
sidered
both the
EIS;
been
in
Draft
circulated
the
judge
we
the district
did
agencies,
hold that
however,
such
perfection
finding
in
that no
not abuse his discretion
recognize
reality
NEPA
the
that
fails
fail-
of
occurred from the
violation NEPA
may become
new and better information
all of the cumulative
explicitly
ure to
state
of
Prohibiting
up-
available.
the inclusion
highway projects.
of
effects
the
a
dated information in
Final EIS defeats
purpose
encouraging
NEPA of
a
the
behind
C. Other Issues
full and fair consideration of environmental
primary
to the
issues
addition
Supreme
As
indicated in
effects.
Court
on
of
plaintiffs have raised
the merits
this
Corp.,
Nuclear Power
su-
Vermont Yankee
segmenta
concerning
case
alternatives and
pra, 435
98 S.Ct. at
U.S.
tion,
argue
plaintiffs also
that
the data
503, 514,
City,
v.
Jersey
ICC
U.S.
for the
underlying
justification
1129, 1134,
(1944),
Ill
Although this case does not involve issues,
a decision on the merits of the
previous plain discussion indicates that the
tiffs did not demonstrate likelihood of
success on the merits judge Despite
was correct in so finding. this find however,
ing, a consideration the other
three Authority, supra, factors under Canal
489 F.2d at produce would the same
result. The district al court found that
though harm to plaintiffs some would occur injunction
if the granted, was not the harm general
to the public defendants and the
outweighed plaintiffs. the harm to the The highways
record indicates in Atlan currently
ta are carrying beyond ca traffic
pacity levels. The serious traffic and safe ty hazards that result from such overcrowd CLARK, A. Judge, THOMAS Circuit dis- ed highways public indicate harm to the senting: outweighed by should not be harm to I dissent. I disagree that the standard plaintiffs plaintiffs proven until have is review based on v. Authority Canal Calla by preponderance a of the evidence that way, 1974) and the NEPA has been violated. Plaintiffs have requirements four set forth in majority forego carried this burden for the and opinion. While the district court entered an ing we reasons affirm the district court’s denying plaintiff’s order tempo motion for denying plaintiffs’ decision a motion for rary injunction, reality the motion was in injunction. permanent injunction preliminary treated one for a on fifty- the merits. The court’s order was AFFIRMED. one pages length complete and as thorough permanent injunction A as a final APPENDIX The was
could be. case before the court year, testimony days, one lasted six there Regional ARC Atlanta Comniseion exhibits, were case countless Statement Impact Environmental eight under advisement in excess of FHWA Highway Federal Administration discussing prerequi In the four months. (lanes) (lanes) HOV Vehicle High Occupancy injunction, temporary sites for a this court Rapid Authority Transit Metropolitan Atlanta MARTA has said: Metropolitan Organization Planning MPO considering prerequisites, four these Policy NEPA Act National Environmental prelimi- must that a the court remember Plan Development RDP Regional injunction extraordinary nary is Improvement TIP Plan should not be remedy drastic which Authority UMTA Transit Urban Mass proposed highway expansion, native to the may and fail to see how this court infer clearly carries granted unless movant upon such a based “no- persuasion. primary burden of build” alternative. remedy this is justification applying ability court’s to render a preserve the (cid:127) the defend- permits here affirmance Our meaningful on the merits. decision of Trans- Department States United ants Although fairness of the fundamental Admin- Highway Federal and the portation par- to a irremediable harm preventing law. with the compliance to avoid istration prelimi- on important is an factor ty memorandum In a December injunction the most nary application, Adams, Transit Ad- Secretary Urban Mass [granting reason in favor of compelling Page ministrator stated: injunction] need to preliminary being judicial process probably from prevent large these investments Both of corridor, or by action rendered futile defendant’s needed in same are not act. refusal to turn well after the least not until Miller, Wright century. & Federal Practice Canal hearing application injuries that cannot be Procedure: preliminary Authority the merits of a Civil 2947. injunction. judicial § Callaway, can redressed remedy Thus properly 489 F.2d at only after a justify those because there never problem [*] promising options. [*] is we cannot be [*] scaled down rail and has been [*] sure of this [*] analysis [*] 573. This heavy burden persuasion [*] [*] sft # [*] # plain- placed been should type We have insisted on this alterna- *14 a trial on the tiffs in view of the fact that Baltimore, Washington, analysis tive was in conducted. merits fact large cities and about other Boston disagree majority with the that the I also and we should do the around the nation complied with the law. federal defendants thing in same Atlanta. 4332(2)(C)(iii) requires Title of Section 1978, 25, from January memorandum impact an environmental statement that Secretary to Secretary Davenport Assistant a detailed statement of “alterna- contain Adams, he stated: require- This proposed tives to the action.” The proposed improvement is [1-85] mandatory, explicit, is incumbent ment phase the next the same corridor where upon agencies of Govern- “all the Federal be rapid system of rail would the Atlanta the rapid ment.” I cannot find that transit its about built and UMTA is concerned expressly ever alternative was considered impact viability MARTA. any environ- the Federal Government mental impact statement prepared for the [*] [*] [*] [*] # [*] highway expansion. proposed that appears unlikely view From our it proper reviewing role the court full improvements and the both the 1-85 impact an environmental statement is to of MARTA will be needed extension agency complied “determine whether the in the corri- passenger meet the demand [by procedures with mandated Clearly, the construc- through dor 1990. I therefore cannot determine NEPA].”1 capacity tion of the additional upon ground this infer may what court ridership. will MARTA affect consideration of an alternative where none Ad- provided. Secretary has I In the DecisionMemorandum been have examined the for EIS’s, “Approve the have no ams decided to: express found highway to rail alter- do not rapid MARTA’s as an 1-75/85 and Volpe, Citizens Preserve Park v. 1. Overton 402, 417, 401 U.S. 28 L.Ed.2d (1971). America, UNITED STATES of included in a ” analy- corridor alternatives Plaintiff-Appellee, sis
IAs read the law and the environmental statement, can impact only I conclude Rembert, Tom WITHERS and Willie Lee the Federal Government did not follow Defendants-Appellants.
mandates of the statute. 80-5045, Nos. 80-5061. issue, regard segmentation With to the I Appeals, United States Court of respectfully also well dissent. law is Sixth Circuit. that, NEPA, segmentation settled highway projects improper purposes Argued 6, Oct. 1980. preparing Although EIS’s.2 there are Decided Dec. significant rule, as, exceptions to this example, segmented projects where have independent utility,”3
“substantial these
exceptions do not fit this case. Defendants
intend to redesign the Brookwood Inter-
change into a expressway (actually six-lane lanes)
eight parallel running already to an
existing expressway. four-lane is illogical
It to think the Brookwood
Interchange can be considered in a vacuum considering
without also the impact it will components the other high-
way system, including Northern DeKalb
1-85 and the Downtown Connector. It segment
makes little sense components
which must function as a unitary system in
order facilitate the efficient movement traffic, and I agree therefore cannot
with majority’s conclusion *15 highway segments
three can be defined
“separately proposed to accomplish indepen- purposes.”4
dent Callaway, Sierra Club v. Maj.
2. 4. 441. (5th Cir. Restoration, Inman Park Inc. Mass v. Urban Administration, F.Supp. (N.D.Ga.1975).