Hanly v. Kleindienst
| Decision Date | 05 December 1972 |
| Docket Number | Docket 72-1959.,No. 357,357 |
| Citation | 471 F.2d 823 |
| Parties | Denis HANLY et al., Plaintiffs-Appellants, v. Richard G. KLEINDIENST, as Attorney General of the United States, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
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Alfred S. Julien, New York City (Julien, Glaser, Blitz & Schlesinger, Jesse A. Epstein, New York City, of counsel), for plaintiffs-appellants.
Milton Sherman, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., T. Gorman Reilly, Asst. U. S. Atty., New York City, of counsel), for defendants-appellees.
Before FRIENDLY, Chief Judge, and MANSFIELD and TIMBERS, Circuit Judges.
This case, which presents serious questions as to the interpretation of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4331 et seq.1 ("NEPA"), the language of which has been characterized as "opaque"2 and "woefully ambiguous,"3 is here on appeal for the second time. Following the district court's denial for the second time of a preliminary injunction against construction of a jail and other facilities known as the Metropolitan Correction Center ("MCC") we are called upon to decide whether a redetermination by the General Services Administration ("GSA") that the MCC is not a facility "significantly affecting the quality of the human environment," made pursuant to this Court's decision remanding the case after the earlier appeal, Hanly v. Mitchell, 460 F.2d 640 (2d Cir. 1972) (Feinberg, J.), cert. denied, Hanly v. Kleindienst, 409 U.S. 990, 93 S.Ct. 313, 34 L.Ed.2d 256 (1972) (herein "Hanly I"), satisfies the requirements of NEPA and thus renders it unnecessary for GSA to follow the procedure prescribed by § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), which requires a formal, detailed environmental impact statement. In view of the failure of the GSA, upon redetermination, to make findings with respect to certain relevant factors and to furnish an opportunity to appellants to submit relevant evidence, the case is again remanded.
Since the background of the action up to the date of our earlier remand is set forth in Hanly I, we limit ourselves to a brief summary. Appellants are members of groups residing or having their businesses in an area of lower Manhattan called "The Manhattan Civic Center" which comprises not only various courthouses, government buildings and businesses, but also residential housing, including cooperative apartments in two buildings close to the MCC and various similar apartments and tenements in nearby Chinatown. GSA, of which appellant Robert L. Kunzig was the Administrator, is engaged in the construction of an Annex to the United States Courthouse, Foley Square, Manhattan, located on a site to the east of the Courthouse and immediately to the south of Chinatown and the aforementioned two cooperative apartments. The Annex will consist of two buildings, each approximately 12 stories high, which will have a total of 345,601 gross square feet of space (214,264 net). One will be an office building for the staffs of the United States Attorney and the United States Marshal, presently located in the severely overcrowded main Courthouse building, and the other will be the MCC.
The MCC will serve, under the jurisdiction of the Bureau of Prisons, Department of Justice, as the detention center for approximately 449 persons awaiting trial or convicted of short term federal offenses. It will replace the present drastically overcrowded and inadequate facility on West Street, Manhattan, and will be large enough to provide space not only for incarceration but for diagnostic services, and medical, recreational and administrative facilities. Up to 48 of the detainees, mostly those scheduled for release within 30 to 90 days, may participate in a community treatment program whereby they will be permitted to spend part of each day in the city engaged in specific work or study activity, returning to the MCC after completion of each day's business.4 A new program will provide service for out-patient non-residents.5 The MCC will be serviced by approximately 130 employees, only 90 of whom will be present on the premises at any one time.
In February 1972, appellants sought injunctive relief against construction of the MCC on the ground that GSA had failed to comply with the mandates of § 102 of NEPA, 42 U.S.C. § 4332(2)(C), which requires the preparation of a detailed environmental impact statement with respect to major federal actions "significantly affecting the quality of the human environment." On March 22, 1972, the application was denied by the district court on the ground that GSA had concluded that the Annex would not have such an effect and that its findings were not "arbitrary" within the meaning of § 10 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. The Government concedes that construction of the Annex is a "major" federal action within the meaning of § 102 of NEPA.
Upon appeal this Court affirmed the district court's order as to the office building but reversed and remanded as to the detention center, the MCC, on the ground that the GSA's threshold determination, which had been set forth in a short memorandum entitled "Environmental Statement" dated February 23, 1971,6 was too meager to satisfy NEPA's requirements. That statement confined itself to a brief evaluation of the availability of utilities, the adequacy of mass transportation, the removal of trash, the absence of a relocation problem and the intention to comply with existing zoning regulations. In remanding the case this Court, although finding the GSA statement sufficient to support its threshold determination with respect to the proposed office building, concluded that the detention center "stands on a different footing," Hanly I at 646, and that the agency was required to give attention to other factors that might affect human environment in the area, including the possibility of riots and disturbances in the jail which might expose neighbors to additional noise, the dangers of crime to which neighbors might be exposed as the consequence of housing an out-patient treatment center in the building, possible traffic and parking problems that might be increased by trucks delivering food and supplies and by vans taking prisoners to and from the Eastern District and New Jersey District Courts, and the need for parking space for prison personnel and accommodations for visitors, including lawyers or members of the family. This Court concluded:
Hanly I, 460 F.2d at 647.
We further noted that in making the threshold determination authorized by § 102(2)(C) of NEPA the agency must "affirmatively develop a reviewable environmental record" in lieu of limiting itself to perfunctory conclusions with respect to the MCC. This Court granted the injunction as to the MCC but after consideration of the balance of hardships stayed the order for a period of 30 days to enable GSA to make a new threshold determination which would take into account the factors set forth in the opinion.7
Following the remand a new threshold determination in the form of a 25-page "Assessment of the Environmental Impact" ("Assessment" herein) was made by the GSA and submitted to the district court on June 15, 1972. This document (to which photographs, architect's renditions and a letter of approval from the Director of the Office of Lower Manhattan Development, City of New York, are attached) reflects a detailed consideration of numerous relevant factors. Among other things, it analyzes the size, exact location, and proposed use of the MCC; its design features, construction, and aesthetic relationship to its surroundings; the extent to which its occupants and activities conducted in it will be visible by the community; the estimated effects of its operation upon traffic, public transit and parking facilities; its approximate population, including detainees and employees; its effect on the level of noise, smoke, dirt, obnoxious odors, sewage and solid waste removal; and its energy demands. It also sets forth possible alternatives, concluding that there is none that is satisfactory. Upon the basis of this Assessment the Acting Commissioner of the Public Building Service Division of the GSA, who is the responsible official in charge, concluded on June 7, 1972, that the MCC was not an action significantly affecting the quality of the human environment.
On August 2, 1972, appellants renewed their application to Judge Tenney for a preliminary injunction, arguing that the Assessment failed to comply with this Court's direction in Hanly I, that it amounted to nothing more than a rewrite of the earlier statement that had been found inadequate, and that some of its findings were incorrect or insufficient. Appellants further demanded a consolidation of the motion for preliminary relief with a jury trial of the issues. On August 8, 1972, Judge Tenney, in a careful opinion, denied appellants' motions, from which the present appeal was taken.
At the outset we accept and agree with the decision of the Hanly I panel that the agency in charge of a proposed federal action (in this case the GSA) is the party authorized to make the threshold determination whether an action is one "significantly affecting the quality of the human environment" as that phrase is used in § 102(2)(C). Judge Feinberg, speaking for the panel in Hanly I, recognized this screening function of agencies in upholding GSA's determination that the proposed office portion of the Annex building did not require a...
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