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07/02/87 Steven Block, Et Al., v. U.S. Department of

July 2, 1987




Before: WALD, Chief Judge, SILBERMAN and D. H. GINSBURG, Circuit Judges.


Appeal from the United States District Court for the District of Columbia, Civil Action No. 84-02065.


WALD, Chief Judge:

The Federal-Aid Highway Act (Act) provides that the Secretary of Transportation (Secretary or Department) may withdraw her approval of a portion of the Interstate Highway System "upon the joint request of a State Governor and the local governments concerned." 23 U.S.C. 103(e)(4). On September 29, 1983, one day before the statutory deadline for approval of such withdrawals and concomitant substitute projects, the Secretary, acting through the Federal Highway Administration , approved the withdrawal funds for I-420 in Atlanta, Georgia, and the substitution of thirty-one project concepts. Because the FHWA had "recently received additional information which [made] the extent of local support for the withdrawal unclear," Joint Appendix at 92, the approvals were "subject to receipt of clarification concerning the support for the withdrawal by the local governments concerned." Id.

The problem was this: The City of Atlanta, one of two local governments concerned (the other being DeKalb County), had clearly and unequivocally resolved that it supported the I-420 funds withdrawal only on the condition that the funds would not be used to build the Georgia 400 highway project. J.A. at 103. *fn1 The City Council wanted the funds shifted to other projects in the poorer sections of Southeast Atlanta; the Georgia 400 project would run through the more affluent North Atlanta. Although the Governor, DeKalb County, and the Atlanta Regional Commission (a group of local officials that also had to concur in the withdrawal application, pursuant to Department regulations2), all had agreed that the funds could be shifted to the Georgia 400 project, the opposition of the Atlanta City Council presented an apparent hurdle to Department of approval, for the Department explicitly conditioned its approval on "clarification" regarding the support for the withdrawal by the local governments concerned.

[a] request to withdraw an Interstate segment within a State . . . shall be submitted jointly by the Governor and local governments concerned. For those segments within urbanized areas, the concurrence of responsible local officials is also required.

23 C.F.R. § 476.304(a) (1986). "In urbanized areas," the "responsible local officials" are the "principal elected officials of general purpose local governments acting through the Metropolitan Planning Organization." 23 C.F.R. § 476.2(7) (i) (1986). The Atlanta Regional Commission constitutes this body of officials for the Atlanta area.

By the summer of 1984, a year later, nothing had changed. Yet, after receiving a letter from the Governor stating that one entity should not be able to "obstruct the will of the majority," J.A. at 113, the Department, again acting through the FHWA, removed the conditions contained in the September 29, 1983, approval letter. J.A. at 125. This September 11, 1984, letter from the FHWA told the Governor that "your letter and other information received since September 1983 have provided the necessary clarification." Id.3

Two months prior to this final approval, plaintiffs, Atlanta residents whose neighborhoods would either be damaged by the construction of Georgia 400 or improved by the building of other projects in its place, had filed suit in District Court, asking for a declaratory judgment that no I-420 transfer funds be used to construct Georgia 400. J.A. at 4. On July 25, 1986, the District Court granted defendants' summary judgment motion, and dismissed the complaint. J.A. at 138. In a memorandum opinion issued August 8, 1986, the District Court explained that the Department's regulations require only "substantial support" among local governments concerned. 643 F. Supp. 762, 768-69 (D.D.C. 1986), J.A. at 153-55; see 23 C.F.R. § 476.304(b) (1986). Moreover, the agency statement accompanying the final regulations had indicated that decisions on funds withdrawals were ultimately political, to be "worked out . . . at a distance from the FHWA involvement." 643 F. Supp. at 769, J.A. at 154; see 45 Fed. Reg. 69,390, 69,393 (1980). Accordingly, the District Court held that "in light of the deference given to the Governor, and the political nature of local decisionmaking, the July 10th letter from Governor Harris, confirming substantial support for I-420 withdrawal reflects a rational basis for the decision to lift

If, as plaintiffs argue, the "joint request of a State Governor and the local governments concerned" that the statute mandates for withdrawals requires unanimity among all concerned jurisdictions, then Atlanta's opposition to I-420 funds withdrawal absent the assurance that the money would not go to Georgia 400 would be fatal. It is less than plain, though, that "joint request" must mean "unanimous agreement." On the one hand, "joint" might refer to the substantive result of the local decisionmaking process, describing only those requests that are joined by all relevant parties. On the other hand, "joint" might refer to the process itself, recognizing only requests that result from a decision in which all relevant parties participate. Or perhaps "joint" denotes a modified combination of these two possibilities, referring to a group decisionmaking process that yields a consensus, though not necessarily a unanimous one. Thus, although "joint" might mean "unanimous," in the context of this law, it need not.

In fact, the requirement that a request be unanimous would be distinctly antidemocratic in a situation (unlike the one here) in which many local governments have jurisdiction over the area encompassing the Interstate section in question; in such a case any one government could hold out against the consensus of all the others or freely extract concessions for its consent. Highways might be built that only one of several jurisdictions wanted. There is unfortunately no indication from either the Senate or House Reports on the highway aid bill as to the intended meaning of "joint request." In the interpretive vacuum created by no clearly expressed congressional intent, either in text or legislative history, we generally defer to the Department's statutory construction, if it is reasonable. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984).

Department regulations explain that "while unanimous local action is not required, the withdrawal request is expected to have substantial support." 23 C.F.R. § 476.304(b) (1986). This nonunanimity proposal had received some criticism during the notice and comment period, but the Department stuck with it in the final rule, noting that "the statutory language [does] not requir[e] local unanimity and [is] basically judgmental in application." 45 Fed. Reg. 69,390, 69,393 (1980). In its initial proposal, the Department had explained that "while it is not feasible to prescribe a numerical standard, local officials are expected to act cooperatively to develop proposed actions which will have the support of a substantial majority of those concerned." 45 Fed. Reg. 2,296, 2,299 (1980).4 This explanation indicates that the Department views the requirement of a "joint request" as demanding cooperation of the relevant decisionmakers in making a decision that a substantial majority of those decisionmakers will support. This interpretation of "joint request" comports with one of the readings we have suggested above (the modified combination of substantive and procedural concerns), and is a reasonable one on its face. Its application in particular instances might, however, still raise questions of fidelity to the statutory design.

Thus, without clear contrary congressional intent, we accept as reasonable the Department's construction of a "joint request" as one requiring only "substantial support."5 Therefore, Atlanta's failure to support unconditionally the withdrawal of I-420 funds would not automatically preclude such a withdrawal merely because unanimity was absent. The question remains, however, whether ...

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