COFFIN, Circuit Judge.
Appellant, the City of Boston, appeals from the denial of a preliminary injunction which would have restrained the
In early 1970, FAA gave its general approval to the Port Authority's Airport Layout Plan to construct an Outer Taxiway in the Bird Flats area on the southwest side of Logan Airport. In December of 1970 the Port Authority began work on the project. In February of 1971, it forwarded a request for aid to FAA, together with a "negative declaration" that no significant adverse environmental impact was foreseen. Copies were sent to regional and state clearing houses. The Boston Redevelopment Authority responded that the planning was unacceptable, in view of the threats of noise and future harbor filling to the continued viability of plans for trying to rehabilitate an adjacent area, Jeffries Point, where a waterfront park had long been planned for a deteriorated community. The Port Authority, in the meantime, began to bring in fill to the construction site. In May FAA allocated $1,100,000 for construction. Shortly
This chronology, of course, is far from that ordained by the letter and the spirit of the National Environmental Policy Act. The concept of that Act was that responsible officials would think about environment before a significant project was launched; that what would be assessed was a proposed action, not a fait accompli; that alternatives to such action would be seriously canvassed and assayed; and that any irreversible effects of the proposed action would be identified.
DOT has been even more specific in its requirements, calling for an environmental impact draft "at the earliest practicable point in time . . . so that the analysis of the environmental effects and the exploration of alternatives . . . are significant inputs to the decision-making process." DOT Order 5610.1 (Oct. 7, 1970). The order adds that "When there is doubt whether or not to prepare a statement it should be prepared." In DOT Order 5050.2 (Dec. 7, 1970), the Department required that any applicant for assistance in extending or adding a runway submit a draft environmental statement, noting that a "negative declaration" was permitted in only limited circumstances, and that, where there has been previous federal funding, a full statement is required "[i]f an irrefutable showing cannot be made that [environmental] consequences were fully evaluated at the time of initial . . . funding".
A belated effort to comply with NEPA may or may not prove to be as unlikely an enterprise as adding yeast to an unleavened loaf. But that is not the question presently before us. That is, before we face the validity of any federal action subject to the National Environmental Policy Act—and the Airport and Airway Development Act—we must ask whether the action now being taken by the Port Authority and sought to be enjoined by Boston is yet a federal action. A project does not necessarily become "federal" at the point when an agency fails to follow mandated procedures —agencies may be subject to duties concerning a proposed federal action at a time when an applicant may not yet be enjoined from acting on its own. The first issue, then, is not whether the federal agencies have failed to follow the procedures, but whether, assuming such failure, a preliminary injunction should be issued — not against the agencies—but against the Port Authority.
Appellant relies on several factors to make the project "federal", all
More complicated is appellant's contention that the process of obtaining federal funding for the Outer Taxiway itself has progressed to the point where the project has become federal. What has happened, in brief, is that a state authority, fully empowered to raise and spend funds for airports, has "requested" a federal grant, 14 C.F.R. § 151.21(a), the federal agency has made a "tentative allocation" of funds for the project, 14 C.F.R. § 151.21(b), and the authority has then submitted a formal application, 14 C.F.R. § 151.21(c). The essence of appellant's position is an asserted analogy between "tentative allocation" of airport aid and those stages in the approval of federal aid highways which have been held to make a highway federal for this purpose.
We turn to the proffered analogy. Federal aid highway planning is carried out in a number of discrete stages, with federal approval necessary at each stage: a state's highway "system"; a particular highway's location; its design; its plans, specifications and estimates; and, finally, its construction.
In contrast, the airport aid scheme contemplates, so far as the statute is concerned, a single decision to fund or not to fund a project. 49 U.S.C. § 1716. Without statutory compulsion, the federal defendants have promulgated a regulation authorizing the making of a tentative allocation of funds, 14 C.F.R. § 151, which they interpret to be "preliminary and tentative in nature", fundamentally an administrative device for budgetary and program planning. Their interpretation is of course entitled to great weight, especially since the phrase "tentative allocation" is in this context their own.
The salient feature of a tentative allocation of airport aid, as opposed to highway location approval, is that while the whole of a proposed airport project thereby receives a generally favorable reaction, the whole is in the ordinary course given closer scrutiny before final decision. The staged federal approval system for highways may be likened to the successive reviews of an architect's plans, beginning with a broad conceptual rendering of a house in its setting and ending with detailed drawings of plumbing, outlets, and joists. The more simple approval scheme for airport development grants is closer to that of one who first selects qualified bidders and then awards the contract.
The specifically environmental regulations of the Department of Transportation confirm the intended distinction between the decision processes employed in the highway and airport programs. DOT Orders 5610.1 and 5610.1A define "federal actions" as including, in addition to grants and other financial assistance, "approval of State highway programs and plans prior to grant of money", but make no mention of tentative allocations for airport or any other financial assistance. Finally, nothing in the present record indicates that as a matter of practice a tentative allocation is more binding than the words themselves or the representations of the federal defendants suggests. We are persuaded, at least for the purposes of ruling on the propriety of the denial of a preliminary injunction, that a tentative allocation, followed by an application for airport development aid, does not so federalize a project that all work must stop until a satisfactory environmental impact statement has been issued by a putative federal grantor.
It may well be urged that too little sanction remains, if a state project is allowed to wreak damage on the environment. To the extent to which the sanction is less here than under other federal programs, that is attributable to the nature of airport aid. A state may, after all, proceed with construction wholly independently of the federal government.
We therefore hold that the district court did not err in ruling that Boston is unlikely to prevail on the merits of its request for an injunction against the Port Authority. We also rule that the court did not abuse its discretion in excluding certain evidence relevant to the merits of an environmental statement, to alleged inadequacies of procedure, and to irreparable harm. Irreparability of harm was assumed by the court and the other issues are not yet properly before it.