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October 12, 1976


Fogel J.

The opinion of the court was delivered by: FOGEL


 Before us are cross motions for summary judgment which present the question of plaintiffs' right to enjoin defendants from constructing, and thereafter using a crossover on the railroad line running from Westchester-Media, Pennsylvania, through Ridley Township to Philadelphia, Pennsylvania. A prior request for a temporary restraining order was denied because of plaintiffs' failure to establish the necessary criteria for the grant of that extraordinary remedy, and consequently construction continued, notwithstanding the pendency of this action. *fn1"

  The parties then proceeded to take discovery in support of their respective motions. *fn2" For the reasons set forth in this opinion, the motion of defendants for summary judgment will be granted, and plaintiffs' motion will be denied.


 This controversy surfaced when workmen of the Penn Central Transportation Company (Penn Central), commenced construction of the crossover in Ridley Township, in the vicinity of Secane Station on the Media-Westchester line. *fn3" The residents of the area, whose houses abut the rear of the tracks had not been informed of the project prior to the start of construction. Upon inquiry, it was learned that the then current Secretary of the Department of Transportation, Claude Brinegar, had authorized a "demonstration project" under the authority of the Urban Mass Transportation Act of 1964, as amended, 49 U.S.C. §§ 1601, 1605, and had contracted with the Southeastern Pennsylvania Transportation Authority (SEPTA), for the design and construction of the facility. SEPTA was chosen because of its role as the central mass transit authority coordinating transportation in the region. SEPTA, in turn, subcontracted the construction to Penn Central, which owned the track, and operated trains on the commuter rail line for that Authority.

 The Secane Crossover was conceived as one element of a demonstration project designed to improve service and increase efficiency of commuter rail facilities along the Media-Philadelphia corridor. The crossover is designed to enable outbound trains from Philadelphia to reverse direction after passing Secane Station, thus eliminating additional travel to Media, the end of the line, the only other station at which a reversal of direction for the inbound trip to Philadelphia can be accomplished. The Secane turn-around also enables SEPTA to offer increased train service to passengers utilizing the eight stations closest to central Philadelphia, stations which, in fact, account for the heaviest volume of commuter traffic.


 Plaintiffs, are Ridley Township and several individuals who purportedly represent the class of residents in the vicinity of the crossover. As noted, there is no dispute with respect to the facts we have related. Plaintiffs' objection goes to the location of the crossover, which is within the existing two-track line situated to the rear of their houses in this heavily populated residential neighborhood. They maintain that the crossover should be located in the industrial section of the township, rather than in a residential area.

 Their charges against defendants are grounded upon the following alleged illegal acts: (1) failure of defendants to provide notice and a public hearing under the Urban Mass Transportation Act of 1964, as amended (UMTA), 49 U.S.C. § 1601 et seq.; (2) failure of defendants to comply with the provisions of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.; (3) failure of defendants to comply with the provisions of the Metropolitan Transportation Authority Act of 1963 (MTAA), 66 P.S. § 2001 et seq., and (4) failure of defendants to comply with the applicable regulations and executive orders under each of these statutes.

 The defendants have mounted a multi-pronged attack on the complaint. They allege that there are no material issues of fact, and that as a matter of law they should be awarded summary judgment for the following reasons:

 (1) Plaintiffs lack standing to maintain this action;

 (2) Facts do not exist which can sustain plaintiffs' cause of action, as a matter of law, under UMTA, 49 U.S.C. § 1602(d) because:

 (a) the Secane crossover does not substantially affect a community or its mass transportation service within the meaning of that section, and

 (b) the case does not involve an application for a grant or loan as described by that section;

 (3) Facts do not exist which can sustain plaintiffs' cause of action, as a matter of law, under UMTA, 49 U.S.C. § 1610, because the Secane crossover has no substantial impact on the environment;

 (4) Facts do not exist which can sustain plaintiffs' cause of action, as a matter of law, under NEPA, 42 U.S.C. § 4321 et seq., because:

 (a) the Secane crossover does not involve major federal action within the meaning of 42 U.S.C. § 4332(C); and

 (b) the Secane crossover has no significant impact on the environment within the meaning of 42 U.S.C. § 4332(C);

 (5) Facts do not exist which can sustain plaintiffs' cause of action, as a matter of law, under MTAA, 66 P.S. § 2001 et seq., because:

 (a) in the absence of any federal cause of action, jurisdiction does not lie for a claim under MTAA, and

 (b) the plaintiffs lack standing under MTAA;

 (6) Facts do not exist which can sustain plaintiffs' cause of action against defendants for construction or operation of the Secane crossover, because plaintiffs have attacked only the funding of the crossover, and not the manner in which it is to be built or operated.

 Our analysis of the record, the pertinent statutes, regulations, executive orders and the controlling decisions lead us to conclude that plaintiffs have standing in this case, although they are not entitled to relief on the merits. Our reasons follow:


 The effect of certain decisions of the Supreme Court in recent years, in the field of environmental law, has been the creation of broader rights which enable individual citizens to seek judicial review of those actions of public officials and of government agencies that affect those interests which may be termed "environmental" or "aesthetic". In Sierra Club v. Morton, 405 U.S. 727, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972) the Supreme Court held that economic injury, as such, was not an essential requirement for standing to sue. While the pinpointed holding of the Court in that case was that plaintiffs did not have standing, because the Sierra Club had failed to allege that its members actually used the Mineral King area individually, the opinion did recognize that

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.

 Id., 734. In the case at bar, the individual plaintiffs clearly allege that they, and the other citizens of the township will be individually affected by the change in the use of the railroad property. The requisite personal injury to satisfy the standards of Sierra Club v. Morton, supra, has therefore been alleged. See also, United States v. SCRAP, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973). The Township of Ridley, which shoulders the obligation, inter alia, of protecting the health, safety and general welfare of its citizens (Complaint, para. 7), clearly qualifies as a proper organizational plaintiff. See, McDowell v. Schlesinger, 404 F. Supp. 221, 243 (W.D. Mo. 1975); Town of Groton v. Laird, 353 F. Supp. 344, 348 (D. Conn. 1972).

 But the inquiry does not end there. A second prong to the test for standing requires, quite apart from a showing of personal injury, be it economic or otherwise, that plaintiffs demonstrate that "the interest sought to be protected . . . is arguably within the zone of interests to be protected or regulated by the statute . .. in question." Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). Again, this issue raises two questions: FIRST : Is the statutory scheme one which is intended to preclude judicial review altogether? SECOND : If not, is judicial review available to these plaintiffs, in this court, on the basis of the action which has been instituted by them? The application of this prong of the test for standing requires us to examine the individual statutes set forth by plaintiffs as the bases for their claims for relief.

 The defendants contend that plaintiffs lack standing under UMTA because the statute precludes judicial review of agency determinations under its provisions; they cite South Suburban Safeway Lines Inc. v. City of Chicago, 416 F.2d 535 (7th Cir. 1969) in support of their position. In Safeway Lines the Court of Appeals held that plaintiff lacked standing to challenge the discretionary determination of the Secretary of Housing and Urban Development to authorize a grant to finance the acquisition and construction of mass transportation facilities pursuant to section 1602(c) of the Act, because of the absence of a legislative purpose to protect the competitive interests of an independent transportation system. We find Safeway Lines to be inapplicable to the case at bar for two reasons. FIRST : plaintiffs before us are not competitors of the private party defendants -- rather they are parties who are legitimately concerned about the environmental effects of the crossover. Section 1602(d)(2) of UMTA, which requires an applicant for a grant or loan to certify that he "has considered the economic and social effects of the project and its impact on the environment", gives its imprimatur to protection of the interests which plaintiffs seek to assert in this case, since they fall "within the zone . . ." created by that statute. SECOND : defendants fail to discern the vital distinction between our power to review discretionary (albeit, misguided decisions by an administrative agency), in contradistinction to our power to review illegal actions of the agency. See, Harmon v. Brucker, 355 U.S. 579, 582, 2 L. Ed. 2d 503, 78 S. Ct. 433 (1958). Plaintiffs in the case at bar do not ask us to review the substantive decision of the Secretary of Transportation; rather, they contend that a mandatory provision of the statute has been violated because public hearings, which are required under section 1602(d)(1), were not held. Accordingly, we find that plaintiffs do have standing to assert a violation of UMTA by defendants.

 It is also clear that plaintiffs' NEPA claims are within the zone of interests sought to be protected by the legislation. See, Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314 (8th Cir. 1974)(en banc), in which plaintiff sought to enjoin further logging operations in the Boundary Waters Canoe Area until an impact statement complying with the requirements of NEPA was filed. The Court held that

The environmental interests asserted by MPIRG are well within the zone of interests protected by NEPA. United States v. SCRAP, 412 U.S. 669, 686, n. 13, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973).

 Id., at 1324. See also, National Wildlife Federation v. Morton, 393 F. Supp. 1286 (D.D.C. 1975), holding that plaintiff's interest in protecting public park areas from an overabundance of off-road vehicles clearly brought it within the "zone of interest" protected by NEPA. Id., at 1289, n. 2. Thus, plaintiffs also have standing to assert their claims under NEPA.


 Plaintiffs allege that the notice and hearing required pursuant to the provisions of 49 U.S.C. § 1602(d) were never furnished, and that this violation, alone, necessitates enjoining completion of construction and subsequent use of the crossover. The parties have stipulated that no notice or hearing was provided in connection with the decision to construct the crossover. However, defendants allege that this section does not apply to this project. The pertinent portion of the statute reads as follows:

1602(d). Any application for a grant or loan under this chapter to finance the acquisition, construction, reconstruction, or improvement of facilities or equipment which will substantially affect a community or its mass transportation service shall include a certification that the applicant --
(1) has afforded an adequate opportunity for public hearings pursuant to adequate prior notice. . . .
(emphasis added).

 UMTA sets up three distinct categories of projects with respect to financing and operation: (1) those independently funded, (2) those funded by a grant, and (3) those entered into and funded through the contract route. The hearing requirement in section 1602(d) is addressed specifically to proceedings pursuant to a grant or loan. The question therefore is whether the hearing requirement applies to a project such as the Secane Crossover, which has been undertaken pursuant to a contract.5 Plaintiffs argue that no significance should be attached ...

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