In an opinion heavily trafficked with driving-related puns, a Washington federal judge ruled today that a legal challenge to the growing number of digital billboards along highways across the country could move forward.
U.S. District Judge James Boasberg found Scenic America, a nonprofit that advocates for preserving the country's "visual character," met the early threshold for challenging Federal Highway Administration rules that made it easier to get approval for digital billboards.
"Scenic America has standing to challenge the Guidance because its case is fueled by concrete harm to the organization’s programs," Boasberg wrote. "And because the Guidance is the end of the road for [Federal Highway Administration] 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."
Before 2007, according to the opinion, the agency typically took the position that digital billboards violated language in agreements between states and the federal government barring "dynamic lighting" on billboards. In 2007, however, the agency issued new guidance that would permit digital billboards as long as they met certain standards for brightness, spacing and other factors.
According to the opinion, the number of digital billboards jumped from 500 in 2006 to at least 4,000 this year.
Scenic America sued the government earlier this year, saying the Federal Highway Administration failed to follow the required procedures in the Administrative Procedure Act before adopting its new position and that the 2007 guidance violated the federal Highway Beautification Act.
The nonprofit, Boasberg wrote, was concerned "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." The judge added it wasn't clear why the group waited several years before filing suit.
The government moved to dismiss the case, arguing Scenic America failed to show it was hurt by the new guidance. The Outdoor Advertising Association of America intervened in the case to defend the agency’s actions. The association also argued for dismissal of the lawsuit.
An increase in digital billboards meant the nonprofit was spending more time and resources on the issue, from going to local zoning meetings where billboards were being challenged to providing information to affected communities, Boasberg said. The nonprofit showed it was injured because that activity diverted resources from its other conservation efforts, he said.
The Institute for Public Representation at Georgetown University Law Center is representing Scenic America. Attorney Thomas Gremillion and a representative for Scenic America were not immediately available for comment.
A representative of the Federal Highway Administration was unavailable. In a statement, Nancy Fletcher, president and chief executive officer of the Outdoor Advertising Association of America, said today's order "permits the claims to go forward, but does not definitively resolve the merits of those claims. OAAA continues to believe those claims are without merit, and is reviewing the available options."
Williams & Connolly partner Kannon Shanmugam is representing the association.
National Law Journal photo by Diego M. Radzinschi.