564 F.2d 447 | D.C. Cir. | 1977
Opinion for the Court filed by WILKEY, Circuit Judge.
Realty Income Trust, the appellant, is the owner and operator of two office buildings in downtown Jackson, Mississippi which are rented in significant part to agencies of the federal government. It brought this lawsuit seeking to enjoin the construction of a new federal office building in downtown Jackson into which would be consolidated the various federal agencies in the area, including the agencies located in appellant’s buildings.
Its contended ground for relief was that the appellee, the Administrator of the General Services Administration, was proceeding with construction in violation of the National Environmental Policy Act of 1969
However, we do not remand to the District Court for relief because we believe that equitable considerations, particular to the facts of this case, do not presently justify an injunction against the ongoing construction of this building, primarily because the necessary environmental impact statements, adequate except for timeliness, have, in fact, been prepared and issued.
I. LEGAL FRAMEWORK ■
Under the Public Buildings Act of 1959, as amended by the Public Buildings Amendment of 1972
The question presented in this case is whether GSA is required to file an Environmental Impact Statement (EIS) on the proposed project at the time it presents the prospectus to the Congressional Committees.
Section 102 of the National Environmental Policy Act of 1969 (NEPA)
The Congress authorizes and directs that, to the fullest extent possible . (2) all agencies of the Federal Government shall — (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, [an environmental impact statement] .
All parties agreeing that the construction of the $25 million office building in Jackson, Mississippi amounts to a major Federal action of environmental significance, the particular NEPA issue here becomes whether the submission of the prospectus is a recommendation or report on a proposal for legislation, requiring a statement, or even if it is not a proposal for legislation, whether the submission is a recommendation or report on a federal action, requiring a statement if sufficiently ripe.
The resolution of these questions involves reference both to the advisory Guidelines issued by the Council on Environmental Quality (CEQ) and to the internal Orders of GSA itself. According to the CEQ, the types of actions covered by NEPA “include but are not limited to . . . (1) Recommendations or favorable reports relating to legislation including requests for appropriations.”
1. Determination of what is a “major Federal action significantly affecting the quality of the human environment". .
a. Types of major Federal actions requiring environmental impact statements include:
(1) Recommendations or reports relating to legislation with a significant environmental impact, including prospectuses for proposed new Federal buildings under the Public Buildings Act.6
Having set out the legal backdrop of this appeal, let us now describe the chronology of events in more detail.
In May 1974 GSA submitted a prospectus to the Public Works Committees of the Senate and House of Representatives. It proposed the acquisition of 277,000 square feet of space for an office building to be constructed in Jackson, Mississippi by a private developer for subsequent lease by the federal government over a 20-year period. No EIS was filed at that time. The Senate Committee held hearings on 30 July 1974 and despite its own rule requiring receipt of an EIS
On 29 October, less than three weeks after Congressional review, GSA filed a draft EIS with CEQ. The draft statement primarily focussed on the general impact from the building on the Jackson area, particularly the downtown, although no specific site had been selected. According to the draft statement, much of the area in downtown Jackson was subject to periodic flooding from a stream known as Town Creek. The draft EIS noted that the Jackson Redevelopment Authority would be seeking to remedy the problem by relocating the Creek into a tube at a cost of about $8 million. Having previously secured Congressional approval for the project, GSA also proceeded with the formal investigation and ranking of possible sites.
On 27 June 1975, prior to the filing of a final EIS by GSA, the Crosley Building Corporation, the original plaintiff, (hereinafter “Realty Trust”),
In August 1975 GSA filed a final EIS on a site in downtown Jackson that it had selected earlier. The statement described the impact to be expected from the erection of a building on this site, discussed alternatives and contained responses to comments on the draft EIS. In particular, a letter from the Army Corps of Engineers had furnished its evaluation that the proposed Town Creek tube would not be sufficient to control floodflows. According to the final EIS, the building would be additionally protected from flooding by the elevation of curbs and the improvement of drainage. The site selected and adopted in the final EIS was located 1000 feet from the two office buildings owned by Realty Trust.
Following oral argument and the submission of memoranda, the District Court denied a preliminary injunction. As set out in its Findings of Fact and Conclusion of Law,
III. THE NEPA MERITS
As noted, the District Court found no violation of NEPA by GSA because it viewed the submission of the prospectus as neither a recommendation for proposed “legislation” nor a recommendation for a proposed major Federal action of sufficient definiteness. We disagree and believe that on the basis of either rationale an EIS should have been filed with the prospectus. Before turning to the analysis of why NEPA requires this result, we repeat that the sole question here entails the timeliness of the preparation and filing of the statements in this case, no question being raised on appeal as to the adequacy of their contents.
We also note at the outset that the District Court appears to have properly found that appellant had standing, on the basis presumably of the “detrimental environmental impact” to appellant that was alleged to result from the erection of the building.
In denying that an EIS had to be filed with the prospectus, the District Court held, without explanation, that: “In the factual context of this case, the submission of the prospectus by GSA pursuant to 40 U.S.C. § 604, was not a proposal for legislation within the intendment of NEPA.” The argument pressed by GSA before the court below and repeated on appeal here is that there is no proposal for legislation in this situation because the prospectus seeks action by resolution from committees; “legislation” for NEPA purposes, GSA insists, means “action by both the Senate and House of Representatives.”
For NEPA purposes, this truly appears to be a distinction without a difference. Whatever the exact status of the committee action in parliamentary terms,
However, the interest of Congress in making environmentally-informed decisions is not the only interest at stake in the
In short, when it comes to the critical, dispositive review of projects by these Committees under the Public Buildings Act, NEPA calls for the filing of an EIS as much as when an agency submits proposed legislation for action by the entire Congress. It can be said of both situations:
Congress contemplated that the Impact Statement would constitute the environmental source material for the information of the Congress as well as the Executive, in connection with the making of relevant decisions, and would be available to enhance enlightenment of — and by— the public.16
Since one of the purposes of providing for a one-time approval of projects by committee action alone may be to “expedite construction,
The other NEPA claim brought before the District Court was that the submission of the prospectus, whatever its status as proposed legislation, required the filing of an EIS because it was a recommendation or a proposal for a major federal action. Without disagreeing that the submission was such a proposal the court found that it
In the most recent reading of NEPA, Kleppe v. Sierra Club
In contrast, in the instant case, GSA was proposing a specific action, the construction of a $25 million office building, of known dimensions, to be located in Jackson, Mississippi. That was enough of a factual predicate to allow GSA to prepare a draft EIS; no acceptable justification has been advanced for delaying its preparation and release until after Congressional action. While there had not as yet been an “irretrievable commitment” of resources to a particular site, once the matter had passed through the Congressional committees there was in a real sense an “irretrievable commitment” of federal funds to the project by the preclusion of any opportunity to use those funds in a similar project in a different city. Agencies are afforded some latitude on the timing of EIS’s to take due account of their expertise,
IV. THE PRESENT EQUITIES
Having found NEPA noncompliance in the failure of GSA to file an EIS at the time it submitted the prospectus, the difficult question remains for this court whether to remand to the District Court for injunctive relief. Such relief would presumably involve the issuance of an injunction against further work on the ongoing construction of the building while GSA sent the impact statements, which have long been completed and publicly released, to the Committees for them to reconsider whether the building should be built at all or wheth
Ordinarily when an action is being undertaken in violation of NEPA, there is a presumption that injunctive relief should be granted against continuation of the action until the agency brings itself into compliance.
The first rationale for injunctions is that a project should not proceed, with its often irreversible effect on the environment, until the possible adverse consequences are known. In affording injunctive relief in one case Judge Friendly observed that if a NEPA analysis were done, it might “reveal substantial environmental consequences”' which might be critical to further consideration of the propriety of the action.
Another reason for enjoining ongoing projects is to preserve for the agency the widest freedom of choice when it reconsiders its action after coming into compliance with NEPA, e. g., after finding out about the possible adverse environmental effects of its action. This rationale often requires an injunction against all the activities of a project, even activities that themselves have no effect on the environment. For, as one court realistically recognized.
[T]he more time and resources [the agency is] allowed to invest in this project, the greater becomes the likelihood that compliance with section 102 of the NEPA, and the reconsideration of the project in light of the provisions of section 101, will prove to be merely an empty gesture.32
Behind the insistence on preserving the status quo for the agency, even at the costs of an injunction, is the shared assumption by the courts that they should not prejudge the reconsiderations that agencies will make once the full environmental consequences of the action have been determined. As this Court stated, Jones v. District of Columbia Redevelopment Land
The decision in each case whether the preservation of an agency’s options upon reappraisal justifies the costs of delay rests, of course, in the sound discretion of the court. Where the countervailing equities are exceptional, as where “further delay might injure our nation’s defense posture,” Concerned About Trident v. Rumsfeld,
Judged by the reasons for injunctive relief described above, it becomes apparent that relief would serve no remedial purpose in this case. The problem here, to repeat, was simply one of timing, that is, that there was not a timely filing of an EIS with Congress. No complaint remains on appeal that the statements in substance were inadequate in any way. Moreover, we repeat, the final EIS was prepared and released before any construction was actually begun on the site. Whatever adverse environmental impact there would be from the project, ensuing from the construction of the building, was presumably investigated by the agency and disclosed beforehand in the EIS. Thus, action having a significant effect on the environment did not commence and is not proceeding in ignorance of possible adverse consequences. This is not a situation where a project has to be stopped so that an undone NEPA analysis can be prepared which might “reveal” hitherto unknown environmental consequences or which might discuss hitherto unexplored alternatives. The first rationale for enjoining ongoing construction thus does not apply.
The second rationale, that further investment will prejudice agency reappraisal, also does not apply. As noted, this rationale rests on the courts’ reluctance to prejudge an agency’s reappraisal once an adequate EIS is prepared. In this case, however, the agency made the decision to proceed to the construction with the benefit of an adequate EIS. There is simply no fresh reappraisal for GSA to make, the EIS now being the same EIS it had earlier.
The more difficult question comes with respect to the Congressional Committees, but the same logic essentially applies. The Committees, as noted, made their decision to approve the project without the availability of an EIS. Had no EIS ever been prepared, we might be reluctant to pre
This is not to say that the Committees’ inaction in any way amounts to a legal ratification of GSA’s violation of NEPA.
This court has recognized before that with regard to NEPA defects of timing, equitable intervention after the fact, after the EIS is done and the decision has been made, must adjust itself to the realities of the situation:
We deem it important to recognize that, once decisions have been made, it may, as a practical matter, be impossible to duplicate the kind of staged infusion of environmental information and consideration that NEPA contemplates.39
On this appeal, then, we are reversing the orders of the District Court to the extent they held that there was no violation of NEPA but we are declining to remand because at this point injunctive relief appears to be inappropriate.
So Ordered.
. 42 U.S.C. § 4321 et seq.
. 40 U.S.C. § 606(a). It reads in part:
(a) In order to insure the equitable distribution of public buildings throughout the United States with due regard for the comparative urgency of need for such buildings . . no appropriation shall be made to construct, alter, purchase, or to acquire any building to be used as a public building which involves a total expenditure in excess of $500,000 if such construction, alteration, purchase, or acquisition has not been approved by resolutions adopted by the Committee on Public Works of the Senate and the House of Representatives, respectively. No appropriation shall be made to lease any space at an average annual rental in excess of $500,000 for use for public purposes if such lease has not been approved by resolutions adopted by the Committee on Public Works of the Senate and House of Representatives, respectively. For the purpose of securing consideration for such approval, the Administrator shall transmit to the Congress a prospectus of the proposed facility including (but not limited to)—
(1) A brief description of the building to be constructed, altered, purchased, acquired, or the space to be leased under this chapter. . . .
. 42 U.S.C. § 4332.
. 40 C.F.R. § 1500.5(a).
. 40 C.F.R. § 1500.12(b). It provides:
(b) With respect to recommendations or reports on proposals for legislation to which section 102(2)(C) applies, the final text of the environmental statement and comments thereon should be available to the Congress and to the public for consideration in connection with the proposed legislation or report. In cases where the scheduling of congressional hearings on recommendations or reports on proposals for legislation which the Federal agency has forwarded to the Congress does not allow adequate time for the completion of a final text of an environmental statement ... a draft environmental statement may be furnished to the Congress and made available to the public pending transmittal of the comments as received and the final text.
.GSA Order No. PBS 1095. IB, dated 2 March 1973. In July 1975 GSA updated its order, see 40 Fed.Reg. 27733, but did not appear to change the above definition in any way that affects this case. The order now provides that types of major federal actions requiring an EIS are:
(1) Recommendations or reports concerning legislation, including requests for appropriations, proposed by GSA or members of Congress resulting in physical action involving, but not limited to proposals for new Federal construction under the Public Buildings Act of 1959 as amended.
.Rule 13 of its Rules of Procedure states that: No project or legislation proposed by the Administration shall be approved or other action taken on such project or legislation unless the Committee has received an environmental impact statement relative to it, in ac/ordance with section 102(2)(C) of the National Environmental Policy Act of 1970, and the written comments of the Administrator of the Environmental Protection Agency, in accordance with section 309 of the Clean Air Act.
. The two buildings have changed ownership twice since Crosley Building Corp. began the suit, first to the Milner-Petroleum Buildings, Inc., and now to Realty Income Trust.
. Its order and findings have not been officially reported; they can be found sub nom. Crosley Building Corporation v. Sampson at 8 ERC 1430. They are reproduced in the Joint Appendix (J.A. at 55-60).
. Paragraph 7 of the complaint alleges that the new building will cause plaintiff environmental injury due to its effect, among other things, on “vehicular and pedestrian traffic.” These allegations may be enough to sustain standing here since NEPA “must be construed to include protection of the quality of life for city residents,” Hanly v. Mitchell, 460 F.2d 640, 647 (2d Cir.), cert. den., 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972). Hanly noted in particular that “noise, traffic [and] congestion” were all environmental considerations within the purview of NEPA.
. 159 U.S.App.D.C. 158, 166, 487 F.2d 1029, 1037 (1973). See also Duke City Lumber Co. v. Butz, 382 F.Supp. 362 (D.D.C.1974), where timber companies were accorded NEPA standing over the Government’s objection that their “primary concern [was] with protecting their economic interests rather than [with] tangential environmental interests,” id., at 373 n. 35. On review this court did “not disagree” with the District Court’s determination of standing, Duke City Lumber Co. v. Butz, 176 U.S.App.D.C. 218, 539 F.2d 220, 221, cert. den. 429 U.S. 1039, 97 S.Ct. 737, 50 L.Ed.2d 751 (1976).
In an early case, Zlotnick v. Redevelopment Land Agency, 2 ELR 20235 (D.D.C), aff'd mem., 161 U.S.App.D.C. 238, 494 F.2d 1157 (1972), the District Court denied both standing and equitable relief under NEPA to a property owner who sought to stop a project which would take his land, noting that the owner “can at best claim only a remote, insubstantial, highly speculative and ephemeral interest in the environment.” It is unclear from the opinion the extent to which the Zlotnick plaintiff alleged, if at all, environmental injuries in fact from the purported NEPA defect, which, in retrospect, would have entitled it to standing
. GSA Brief at 15.
. There is no indication that the court believed that the prospectus for the proposed project was not “legislation” because it could be described instead as an “appropriation.” Other courts have rejected the distinction as immaterial for NEPA purposes, Environmental Defense Fund v. Tenn. Val. Auth., 468 F.2d 1164 (6th Cir. 1972), and have regarded an appropriation request as requiring an EIS, Save Our Sound Fisheries Ass’n v. Callaway, 387 F.Supp. 292, 309 (D.R.I.1974). That this distinction was not the rationale below is further suggested by the fact that this same District Judge, just a few months before the instant decision, held that requests for annual budget appropriations could be proposals for legislation: Sierra Club v. Morton (National Wildlife Refuge System), 395 F.Supp. 1187 (D.D.C.1975), appeal pending sub nom. Sierra Club v. Andrus, No. 75-1871 (D.C.Cir.). See also the CEQ Guidelines, text at n. 4 supra.
. A helpful analogy can be found in Judge McCree’s analysis of why an appropriations request may be a proposal for legislation:
. Congress may have valid reasons for distinguishing between “legislation” and “appropriations” for purposes of deciding the proper committee to which to refer a bill or the time or duration of legislative debate. But that does not require us to close our eyes to the commonly accepted meaning of the word “legislation — the making or the giving of laws — or to the clearly expressed congressional purpose of the NEPA. EDF v. TVA, supra at 1181 (emphasis added).
Conversely, of course, the characterization of this Committee action as “legislation” for NEPA purposes may not necessarily be appropriate in other contexts, e. g., as to the constitutionality of the Committees’ function under the Public Buildings Act.
. 146 U.S.App.D.C. 33, 42, 449 F.2d 1109, 1118 (1971).
. Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 9, 458 F.2d 827, 833 (1972).
. See H.R.Rep.No. 989, 92d Cong., 2d Sess. 3, reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 2370, 2372.
. 156 U.S.App.D.C. 395, 408, 481 F.2d 1079, 1092 (1973) (content of EIS can flexibly vary, from short, simple analyses to complex multivolume works).
. See n. 5 supra.
. Cf. Carolina Environ. Study Group v. United States, 166 U.S.App.D.C. 416, 418, 510 F.2d 796, 798 (1975) (only “reasonably” foreseeable effects need be described).
. GSA reads its own regulations, see text at n. 6, supra, as meaning that EIS’s should ordinarily be prepared for projects requiring prospectus approval but that the EIS’s need not be filed at the time the prospectus is submitted to Congress, Thus, the GSA practice is to wait until “after approval by Committees” before filing the related draft EIS’s. J.A. at 44. Such a practice may be literally sustainable under its regulations but serves to foreclose, in violation of NEPA, a full and adequate disclosure of environmental consequences at an important stage in the decision-making process.
In this case, for example, surely the Committees would have been interested in the information in the draft EIS about the existence of a flood plain in the area considered for the project and the remedial plan devised by the city. And also of concern to the Committees might have been the evaluation of the Army Corps that the plan was insufficient and the remedial modifications in the building design.
. GSA Br. at 13.
. 427 U.S. 390, 399, 96 S.Ct. 2718, 2725, 49 L.Ed.2d 576 (1976).
. Id at 402, 96 S.Ct. at 2728. Having found that there was no proposed action in the case before it, the Court additionally noted that an EIS could not be prepared for “practical reasons,” i. e., there was “no factual predicate” for analyzing impact and alternatives. This alternative reasoning suggests that considerations of ripeness or factual sufficiency are still appropriate even when there is an admitted “proposal” for action.
.Scientists’ Inst. for Pub. Info., Inc. v. Atomic Energy Com’n, supra 156 U.S.App.D.C. at 410, 481 F.2d at 1094.
. This was the injunctive relief advised by appellant’s counsel at oral argument. Less stringent relief, such as an order that GSA simply transmit the statements now to the Committees for whatever action they may choose to take, will also be seen as purposeless in light of our analysis, infra.
. See Jones v. District of Columbia Redevelopment Land Agency, 162 U.S.App.D.C. 366, 377, 499 F.2d 502, 513 (1974):
In most cases, perhaps, it is possible and reasonable for the courts to insist on strict compliance with NEPA, and actions can, consistently with the public interest, be enjoined until such compliance is forthcoming.
. 511 F.2d 489, 497 (2d Cir. 1975).
. 527 F.2d 786, 799 n. 12 (9th Cir. 1975).
. City of New York v. United States, 337 F.Supp. 150, 160 (E.D.N.Y.1972) (three-judge court) (emphasis added).
. EDF v. TVA, supra at 1182.
. Id. at 1183-84.
. Supra 162 U.S.App.D.C. at 376, 499 F.2d at 512. See also Jones v. Lynn, 477 F.2d 885, 891 (1st Cir. 1973).
. CEQ provides some of the following examples:
The Corps of Engineers decided to drop or abandon work on over a dozen proposed projects because its NEPA process revealed that significant environmental damage would result .... The Corps has also modified many more due in large part to NEPA and the EIS requirement .... [Similarly, the Department of Transportation] estimates that since 1970, scores of major projects have been abandoned or changed as a result of the EIS process and a determination to avoid adverse effects. CEQ, Sixth Annual Report 629 (December 1975).
. 180 U.S.App.D.C. 345 at 359, 555 F.2d 817 at 831 (1976) (Leventhal, J., for the Court).
. The focus here on ensuring that actual environmental impacts are not incurred without an awareness and disclosure of the consequences does not mean that equitable relief under NEPA can only issue when actual environmental impacts are imminent. The concern for the decision-making process under NEPA may well justify equitable relief at earlier stages. See Jones v. District of Columbia Redevelopment Land Agency, supra 162 U.S.App.D.C. 375-376, 499 F.2d at 511-12.
. Notices of the filing of both the draft and the final EIS were published in the Federal Register. The draft EIS also indicates that copies were sent to the two Senators for Mississippi and the Representative from Jackson. The court in Concerned About Trident, supra, 180 U.S.App.D.C. at 354 n. 22, 555 F.2d at 826 n. 22 (Tamm, J., for the court), took note of the “availab[ility]” of EIS’s to Congress and the public on account of public filings.
. Congressional approval of appropriations measures has not been read as a conclusive determination of the sufficiency of related impact statements. Committee for Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 380, 382, 463 F.2d 783, 785 (1971). Similarly, Committee approval of the prospectus without the availability of an EIS does not mean that an EIS did not have to be filed with the prospectus.
. Jones v. District of Columbia Redevelopment Land Agency, supra 162 U.S.App.D.C. at 378, 499 F.2d at 514.