Administrative Law

Judge sees no roadblock to digital billboard suit; how many road references did he use?

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A federal judge in Washington, D.C., sees no roadblock to a nonprofit group’s challenge to federal guidance that paved the way for an increasing number of digital billboards.

The opinion by U.S. District Judge James Boasberg was “heavily trafficked” with road references, according to The BLT: The Blog of Legal Times. Boasberg said a group called Scenic America had standing to challenge an interpretation by the Federal Highway Administration because the organization was spending more time on the issue, diverting resources from other efforts. Scenic America’s goal is to preserve and improve the visual character of America’s countryside and communities.

The road references are in the introduction to the opinion. Here are a few:

• The Federal Highway Administration “shifted gears” and “gave the green light” to its division offices when it issued guidance that “paved the way” for digital billboards.

• Scenic America claims the guidance “bypassed” the mandatory rule-making route and “collided head-on” with federal highway laws. The group now “wants to put the brakes” on the guidance, warning that safety and aesthetic concerns “threated to turn Route 66 into the Road to Perdition.”

• Motions to dismiss, which claim Scenic America’s concerns are “driven” by mere ideological concerns, are “throwing up roadblocks” to Scenic America’s suit. The case is “at a crossroads,” but there is no cause “to end this case by fiat.” The court orders the case to “speed on to its next turn.”

Here are the opening paragraphs of the opinion:

In 2007, the Federal Highway Administration issued a “Guidance” that paved the way for the construction of digital billboards along the nation’s highways. Plaintiff Scenic America, a group dedicated to preserving the country’s visual beauty, wants to put the brakes on that decision.

Historically, the FHWA believed that digital billboards violated key language in federal-state agreements related to the Interstate Highway System. But the agency recently shifted gears and gave the green light to its Division Offices by providing a new interpretation of that language that would permit digital billboards in certain circumstances. Scenic America says that this decision bypassed the mandatory notice-and-comment rulemaking route and also collided head-on with important federal highway laws. The group cautions that the bright, moving lights on digital billboards tow a load of safety and aesthetic concerns—that they threaten to turn Route 66 into the Road to Perdition.

Now the case is at a crossroads. Defendants are the Department of Transportation, the Federal Highway Administration, the Secretary of Transportation, and the Federal Highway Administrator, and in the passenger seat is an Intervenor, the Outdoor Advertising Association of America. Both have filed Motions to Dismiss, throwing up roadblocks to Scenic America’s suit. First, they claim Scenic America lacks standing to sue because the group is driven by mere ideological objections to the Guidance, not by any actual harm. Second, they say that the Court must steer clear because the Guidance is not final agency action subject to judicial review.

Although both arguments present difficult and close questions, the Court concludes that neither gives cause to end this case by fiat. Scenic America has standing to challenge the Guidance because its case is fueled by concrete harm to the organization’s programs. And because the Guidance is the end of the road for FHWA decisionmaking on this matter, it constitutes final agency action. The Court accordingly declines to take either exit proposed by Defendants and Intervenor and orders that the case should speed on to its next turn.

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