First National Bank of Chicago v. Richardson

• Decision Date: 13 September 1973
• Docket Number: No. 73-1573.,73-1573.
• Citation: 484 F.2d 1369
• Parties: The FIRST NATIONAL BANK OF CHICAGO et al., Plaintiffs-Appellants, v. Elliot RICHARDSON, Attorney-General of the United States, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

484 F.2d 1369 (1973)

The FIRST NATIONAL BANK OF CHICAGO et al., Plaintiffs-Appellants, v. Elliot RICHARDSON, Attorney-General of the United States, et al., Defendants-Appellees.

No. 73-1573.

United States Court of Appeals, Seventh Circuit.

Argued July 30, 1973.

Decided September 13, 1973.

Calvin P. Sawyier, Lois Lasky, Chicago, Ill., for plaintiffs-appellants.

James R. Thompson, U. S. Atty., William T. Huyck, John B. Simon, James C. Murray, Jr., and Floyd Babbitt, Asst. U. S. Attys., Chicago, Ill., for defendants-appellees.

Robert S. Cushman, Chicago, Ill., for Chicago Central Area Committee, amicus curiae.

George M. Covington, Chicago, Ill., John Howard Association, National Council on Crime and Delinquency, and Illinois Prisons and Jails Project, amici curiae.

Before KILEY, FAIRCHILD and SPRECHER, Circuit Judges.

SPRECHER, Circuit Judge.

The issue on appeal is whether the construction of the partially-completed federal parking garage and detention center in Chicago should be enjoined pending the preparation of a detailed environmental impact statement or whether the General Services Administration (GSA) has satisfied the requirements of the National Environmental Policy Act of 1969 (NEPA) by issuing a detailed "environmental assessment" intended to show that this "major Federal action" is not one "significantly affecting the quality of the human environment."

Inasmuch as the construction of the Chicago detention center and the litigation it has engendered have closely followed in time and pattern, the construction of, and litigation resulting from, a similar federal detention center in New York City which caused the Court of Appeals for the Second Circuit to give extensive consideration to most of the issues involved here, we shall note the factual and procedural similarities and differences in the two situations in some detail. This is particularly appropriate because the district court, this court, and all parties proceeded with one eye on the New York case as it developed in Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972), cert. denied, 409 U.S. 990, 93 S. Ct. 313, 34 L.Ed.2d 256 (1972) (Hanly I), and Hanly v. Kleindienst, 471 F.2d 823 (2d Cir. 1972) (Hanly II).

I

The New York project, known as the Foley Square Courthouse Annex (Foley Square) consists of two buildings each approximately 12 stories high with a total of 345,601 gross square feet, one an office building for the staffs of the United States Attorney and Marshal and the other a detention center known as Metropolitan Correction Center.

Noting that not all agency action requires the preparation of an impact statement, the court in Hanly I stated that "the responsible federal agency has the authority to make its own threshold determination as to . . . whether the federal action is `major' and also has a `significant' effect on the environment in deciding whether an impact statement is necessary." Hanly I, 460 F.2d at 644. On the basis of a short memorandum by GSA that tersely discussed problems of water, heat, sewage and garbage and concluded that the "impact of the proposed action will have no adverse effects on the environment, including ecological systems, population distribution, transportation, water or air pollution, nor will it be any threat to health or life systems or urban congestion," the Court of Appeals affirmed the district court's denial of a preliminary injunction, holding that the memorandum was sufficient to support GSA's determination that the office building in Foley Square would have no adverse effects on the environment. Hanly I, 460 F.2d at 645-646.¹

However, the detention center, the Foley Square "jail," was viewed as distinct from the office building determination. GSA had attempted to justify the detention center on the basis of the same abrupt memorandum which had satisfactorily terminated environmental attacks on the office building, but the Court of Appeals reversed the district court's denial of preliminary injunctive relief, holding that as to the detention center, "in the context of an act designed to require federal agencies to affirmatively develop a reviewable environmental record, this perfunctory and conclusory language simply does not suffice, even for purposes of a threshold section 102(2)(C) determination." Hanly I, 460 F.2d at 647.² The court stated that GSA must at least consider those factors peculiar to detention centers which have an impact on the urban environment. Hanly I, 460 F.2d at 646-648.

The Chicago project, known as the United States Courthouse Annex and Federal Parking Facility (Chicago Annex), consists of one triangular-shaped 27-story building with an area of approximately 180,000 gross square feet for the detention center and a second rectangular 8-story, open-sided building with an area of approximately 315,000 gross square feet for the parking garage for about 850 automobiles.

In the present case, the GSA at first relied upon a 4-stage statement similar in length and content to the Foley Square memorandum to satisfy the threshold determination that the Chicago Annex was not one significantly affecting the quality of the human environment. The district court originally denied the plaintiffs' motion for a preliminary injunction on March 30, 1973, but we directed the vacation of that order on April 26, 1973 in appeal No. 73-1324 and in our order of that date disposed of three defenses which had been interposed by the governmental defendants: we held (1) that the plaintiffs (two Chicago banks, the Union League Club of Chicago, two not-for-profit citizens' planning organizations and an individual) had standing to sue under Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) by virtue of their "use" of the area to be affected by the construction of the Chicago Annex; (2) that "although the plaintiffs could have brought this action earlier than they did," we declined to invoke laches because of "the public interest status accorded ecology preservation by the Congress," in accordance with Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 1329 (4th Cir. 1972); and (3) that the fact that one plaintiff bank which later withdrew from the case had been recalcitrant with respect to answering interrogatories did not detract from the right of the other plaintiffs to maintain the action.

As the Second Circuit did in Hanly I, we remanded the case to the district court with directions to enter an injunction effective in no less than 30 days unless in the interim GSA supplemented its threshhold environmental impact assessment and the court upon a hearing determined that it was adequate. If such assessment was not adequate, an injunction was to be entered and continued in force until an environmental impact statement was made in full compliance with Section 102(2) (C) of NEPA.

The district court entered an order on May 7, 1973, enjoining further construction of the Chicago Annex as of 5:00 P. M. on May 26, 1973. In that interim, GSA invited and received objections to the construction based upon environmental effects and after consideration of these and other factors filed on May 15 a 142-page supplemental environmental assessment supported by a large number of exhibits. GSA considered the supplemental data and on May 17 made its determination "that construction and operation of the U. S. Courthouse Annex and Federal Parking Facility is not considered to be a major federal action that would significantly affect the quality of the human environment."

The plaintiffs had submitted letters, statements and other documentary material to GSA, which were included in the GSA exhibits supporting the assessment. The assessment and exhibits were introduced in evidence when the district court held its hearing on May 21 and 22, at which time the plaintiffs called 5 witnesses.

On May 25, the district court denied the plaintiffs' motion for a preliminary injunction and, in effect, vacated the May 7 order providing for an injunction effective May 26. In a 38-page memorandum opinion, Judge McGarr made findings and conclusions and adjudged that the GSA determination as to the lack of significant environmental impact of the Chicago Annex project (1) was consistent with the requirements of the National Environmental Policy Act of 1969, Executive Order 11514 flowing therefrom and the Guidelines of the Council on Environmental Quality on Statements on Proposed Federal Actions Affecting the Environment, Circular No. A-95 Revised (February 9, 1971) and (2) "was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law or without observance of procedure required by law."

A subsequent hearing on plaintiffs' application for a permanent injunction was held on June 19, 1973, wherein the evidence received in support of the motion for preliminary relief was considered and the plaintiffs called 5 additional witnesses. On June 22 the court made additional findings and conclusions and denied the plaintiffs' motion for a permanent injunction, as well as reaffirming his judgment regarding the GSA determination.

The plaintiffs appealed from the district court's denial of their motion to alter and amend the memorandum opinion of May 25, 1973, denying a preliminary injunction, and from the June 22 order denying a permanent injunction.

II

After remand in Hanly I a new threshold determination of lack of significant effect on the quality of the human environment was made by GSA in the form of a 25-page assessment of environmental impact with some exhibits attached. The district court then denied plaintiffs' renewed application for a preliminary injunction and the Hanly II appeal followed.

In the majority opinion, written by Judge Mansfield, the Court of Appeals held that although a court reviewing administrative action must determine de novo all questions of law, must determine whether factual findings are "arbitrary, capricious, an abuse of...