Citizens Advy. Comm. On Priv. Pris. v. U.S. D.O.J., Civil Action No. 99-112J.

Citation197 F.Supp.2d 226
Decision Date07 August 2001
Docket NumberCivil Action No. 99-112J.
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania

William T. Jones, Robert A. Preate, Levy & Preate, Scranton, PA, for plaintiff.

Jessica Lieber Smolar, U.S. Attorney's Office, Pittsburgh, PA, Lori Caramanian, Anthony P. Hoang, U.S. Dept. of Justice, Env. & Natural Resources Div., General Litigation Section, Washington, DC, Jeff Limjoco, Office of General Counsel & Review, Washington, DC, for defendant.


D. BROOKS SMITH, Chief Judge.

In December 1998, Cornell Corrections Inc. ("Cornell") submitted a proposal to the Federal Bureau of Prisons ("Bureau") to house over 1,000 federal inmates in a private prison that it hoped to build in Clearfield County, Pennsylvania. In April 1999, the Bureau awarded Cornell the contract and Cornell moved forward with construction of the new facility. Within weeks, plaintiff Citizens Advisory Committee on Private Prisons, Inc. ("CACOPP" or "plaintiff")1 sued the Bureau and the United States Department of Justice ("defendants"), seeking to enjoin the construction of this new prison. In particular, plaintiff claimed that defendants had failed to comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321-4327 (1994), a statute that requires federal agencies to consider environmental consequences before committing significant resources to a project. Basically admitting that it had violated NEPA, the Bureau ordered a halt to all work on the new facility and began to re-examine the environmental impact of the project. In March 2000, it issued an environmental assessment ("EA") in which it concluded that construction of the new prison would not have a significant effect on the environment.

The question before me is whether this conclusion, and the process employed to reach it, satisfies NEPA's requirements. My own conclusion comes in three (3) parts. First, I conclude that the Bureau violated NEPA when it initially awarded the contract to Cornell and allowed construction on the project to proceed without taking a "hard look" at the environmental consequences of the project. Second, I consider whether the Bureau cured this initial violation by stopping work on the project and re-evaluating the project's environmental consequences. While I acknowledge that this is a question not susceptible of easy resolution, I ultimately conclude that the Bureau did cure its initial violation. Finally, I examine the Final EA prepared by the Bureau in March 2000 and uphold the Bureau's decision that the Clearfield County project will not have a significant effect on the environment. Accordingly, I hold that the defendants have satisfied NEPA's requirements, and I will allow the Clearfield County project to proceed.


On August 5, 1997, the United States Congress enacted the National Capital Revitalization and Self Government Improvement Act of 1997, Pub.L. No. 105-33, 111 Stat. 251. Among other things, the Act required the Bureau to house at least 2,200 District of Columbia Department of Corrections (DCDC) sentenced felons in private contract facilities by December 31, 1999. A.R. Vol. I, tab. 1.2 In addition, the Act mandated that the Bureau place 50% of all DCDC inmates in private prison facilities by September 30, 2002. Id. Vol. I, tab 4, at 5.

In an effort to meet its obligations under the Act, the Bureau took two (2) immediate steps. First, it started to broadly consider the environmental consequences of this mandate to house DCDC inmates in private correctional facilities. On January 26, 1998, it published a notice in the Federal Register, in which it stated that it was going to prepare a Draft Program Environmental Impact Statement ("EIS"). Id. Vol. I, tab 4, App. A. The purpose of this Draft Program EIS was to analyze the environmental effects of moving 2,200 prisoners from public to private prison facilities. On January 28, 1998, the Bureau held a public meeting to discuss the substance of this Draft Program EIS. And in March 1998, it published this document. Id. Vol I, tab 4. In the Draft Program EIS, the Bureau concluded that housing prisoners in private facilities would not have an adverse effect on the environment. Id. Vol I, tab 4, Abstract. Accordingly, it decided to forge ahead with plans to find private contractors to house approximately 2,200 DCDC inmates by December 31, 1999. Id. After a brief public comment period, the Bureau issued a Final Program EIS that drew the same conclusions. Id. Vol. II, tab 5. Although the Final Program EIS discussed a broad range of environmental issues that might arise during the construction and operation of a private prison, it did not discuss any site in particular.

The second step taken by the Bureau was to issue a request for proposals for the housing of 2,200 DCDC sentenced felons in private institutions. Id. Vol. I, tabs 2 and 3. After a series of amendments, this solicitation was narrowed down to 1,000 inmates. Id. The solicitation stated that private institutions must begin accepting inmates by December 31, 1999. Finally, it required that each proposal be accompanied by a Draft EA. A.R. Vol I, tab 2, § J, Attach. 6. "In mandating the preparation of the [Draft] EA, the Bureau sought to ensure that each contractor/offeror understood" the need to consider alternative sites and to analyze the full-range of potential environmental impacts on any site that it proposed. Final EA, at I-3.3

One of the proposals received by the Bureau was from Cornell. Cornell proposed to build a new prison in Morris and Decatur Townships, Clearfield County, Pennsylvania, approximately one mile northwest of Philipsburg ("Clearfield County site"). Id. at II-2. As the Administrative Record in this case reveals, the proposed site contains two (2) parcels totaling 197 acres and is located among gently rolling hills. Id. at III-1; id. at IV-22; A.R. Vol. XI, tab 128. The larger of the two parcels, Lot 1, is 157 acres and is the site of a former strip mine. Final EA, at III-1. In contrast, Lot 2 is only 40 acres, a quarter of which are wooded. Id. at III-18.

History has not been kind to the Clearfield County site. Past mining activities have taken their toll on much of the site, id. at III-1, 6-7, 29, and past disturbance to the vegetation is obvious. Id. at III-18. Additionally, past use for state-approved sludge nutrient recycling has left portions of the site with arsenic concentrations that exceed the applicable Pennsylvania health standard. Id. at III-30.4 This history, however, can be deceiving. In fact, a picture of the area reveals a typical rural setting, for the most part sparsely covered with vegetation but thick with trees in limited areas. A.R. Vol. XI, tab 128. A diverse array of animal species, including birds, rabbits, squirrels, and even black bears live in the area and may venture into the site at any time. Final EA, at III-30.5

Like the site itself, the surrounding area is rural. Clearfield County is Pennsylvania's fourth-largest county in total land area (1,144 square miles). Id. at III-31. Over three-quarters of the county is wooded and approximately six (6) percent is farmland. Id. at III-31-32. In 1990, the population of Clearfield County stood at 78,101, and was up to 79,724 by 1995. Id. at III-34. Philipsburg is just a mile from the proposed site across the border in Centre County and is one of the major centers of industry and mining in the northwest portion of Centre County. Id. Clearfield County has seen economic trouble over the past twenty (20) years. In 1999, its unemployment rate was 9.3%, well above the statewide and national averages. Id. at III-38-39.

Between December 1998 and April 1999, the Bureau's Contracting Officer, Mr. Scott P. Stermer, reviewed Cornell's proposal to build a prison on the Clearfield County site, along with a number of other proposals received by the agency. Dkt. no. 67, Ex. A, ¶ 7. In particular, he examined the following: (1) the alternative sites considered by the offerors; (2) the letters of support and opposition, if any, to the proposed projects; (3) any information that the offerors supplied to or received from federal, state, and local environmental authorities; (4) the proposed mitigation and environmental permit requirements; (5) any demographic studies on the proposed sites; and (6) the provision of emergency services at the proposed sites. Id.

On April 2, 1999, the Bureau awarded to Cornell a contract for the management of a private correctional facility at the Clearfield County site. Id. ¶ 9; A.R. Vol. III, tab 12. The contract called for the housing of 350 minimum security male offenders, 350 various security male offenders sentenced pursuant to the DC Youth Rehabilitation Act, and 300 female offenders of various security levels. Dkt. no. 1, Ex. 1; A.R. Vol. III, tab 12. It was to run for a period of ten (10) years, with a base period of three (3) years, and seven (7) one (1) year renewal options. Id. For the entire ten (10) year period, the contract price was $342,692,498. Id.

As soon as residents from the Clearfield County area learned that Cornell had received a contract to build a prison in their area, letters for and against the proposed facility began pouring into the Bureau's Washington, D.C. office. Plaintiff's organization took the lead in expressing opposition to the project, gathering over 1,000 signatures of those opposed to the project and mailing letters to the Bureau on a daily basis. A.R. Vol. IV, tabs 18-29, 31-33, 35-43; id. Vol. V, tabs 55 & 57; id. Vol. VI, tab 57. Opponents of the project focused on the lack of public participation in the selection of the Clearfield County site, the environmental consequences of...

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