Morris County Trust for Historic Preservation v. Pierce, 82-5656

Citation714 F.2d 271
Decision Date29 July 1983
Docket NumberNo. 82-5656,82-5656
Parties, 13 Envtl. L. Rep. 20,963 MORRIS COUNTY TRUST FOR HISTORIC PRESERVATION, Morris County Historical Society, and Robert Thompson v. PIERCE, Samuel R., in His Capacity as Secretary of the United States Department of Housing and Urban Development; Town of Dover Redevelopment Agency, a body corporate and politic of the State of New Jersey; and Frank Dill, in His Capacity as Building Inspector of the Town of Dover. Appeal of Samuel R. PIERCE, Secretary of Housing and Urban Development.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Carol E. Dinkins, Asst. Atty. Gen., W. Hugh Dumont, U.S. Atty., Lorraine S. Gerson, Asst. U.S. Atty., Newark, N.J., Peter R. Steenland, Jr., Martin Green (argued), Attys., Dept. of Justice, Washington, D.C., for appellants.

Mark L. First (argued), Jamieson, McCardell, Moore, Peskin & Spicer, Trenton, N.J., for appellees.

Before SEITZ, Chief Judge, SLOVITER, Circuit Judge and POLLAK, District Judge. *

OPINION OF THE COURT

SEITZ, Chief Judge.

Samuel R. Pierce, Secretary of the United States Department of Housing and Urban Development (hereinafter referred to as HUD), appeals an order of the district court permanently enjoining demolition of the Old Stone Academy by the Town of Dover Redevelopment Authority (TDRA) until HUD conducts a historical and cultural resource review pursuant to section 106 of the National Historic Preservation Act, 16 U.S.C. § 470 et seq. (1976 & Supp.1982), and an environmental clearance pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (1976). This court has jurisdiction under 28 U.S.C. § 1291 (1976).

I.

The following facts are undisputed. In 1968, HUD approved an Urban Renewal Plan submitted by the Town of Dover, New Jersey. Among its provisions, the Plan directed that all of the buildings along Dickerson Street would be demolished. Dickerson Street would then be widened, additional parking would be provided, and a new traffic pattern would be established for easy flow and access for the remaining commercial district on Blackwell Street.

One of the buildings slated for demolition according to the plan is the Old Stone Academy. Constructed in 1829, just a few years after Dover's incorporation and first development, the Old Stone Academy was the Town's first general public building.

In 1969, HUD and the Town of Dover signed a Loan and Capital Grant Contract pursuant to Title I of the Housing Act of 1949, 42 U.S.C. § 1450 (1976). The Contract provided the funds necessary to undertake the previously approved Urban Renewal Plan, and to carry out the slum clearance and redevelopment of the area. The Loan and Capital Grant Contract was closed out on April 16, 1982, after which time TDRA continued to be funded through a short-term, direct-financing Federal loan.

Defendant TDRA is a body corporate and politic of the State of New Jersey, created by the Town of Dover and charged with implementing the Urban Renewal Plan for the Dickerson Street Urban Renewal Area Project. TDRA acquired ownership of the Stone Academy in December of 1978. On July 7, 1980, TDRA voted to execute the demolition of the building.

Following several skirmishes with TDRA in the courts of the State of New Jersey, appellees Morris County Trust for Historic Preservation, et al. (MCTHP) filed a complaint in the United States District Court for the District of New Jersey. Based on allegations that HUD failed to comply with the environmental and historical review requirements of NEPA and NHPA concerning the proposed demolition of the Stone Academy, MCTHP requested that the demolition of the structure be enjoined until HUD complies with its various statutory and regulatory responsibilities. The parties consented, pursuant to Fed.R.Civ.P. 65(b), to the consolidation of the trial of the action on the merits with the plaintiffs' application for a preliminary injunction. The district court, agreeing in large part with MCTHP's contentions, entered an order enjoining the demolition of the Stone Academy until such time as HUD conducts a historical and cultural resource review pursuant to NHPA and an environmental clearance pursuant to NEPA. HUD filed a timely notice of appeal.

II. NEPA

Congress enacted NEPA in 1969 in order "to declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality." 42 U.S.C. § 4321.

NEPA is primarily a procedural statute, Stryckers Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1979), designed to ensure that environmental concerns are integrated into the very process of agency decisionmaking. Andrus v. Sierra Club, 442 U.S. 347, 350, 99 S.Ct. 2335, 2337, 60 L.Ed.2d 943 (1978); see Baltimore Gas & Electric Co. v. NRDC, --- U.S. ----, ----, 103 S.Ct. 2246, 2251, 76 L.Ed.2d 437 (U.S.1983) (NEPA requires federal agencies to take a "hard look" at environmental consequences before taking a major action). An additional goal of NEPA is to inform the public that an agency has considered environmental concerns in its decision-making process. Weinberger v. Catholic Action of Hawaii/Peace Education Project, 454 U.S. 139, 142-43, 102 S.Ct. 197, 201, 70 L.Ed.2d 298 (1981). To accomplish these ends, NEPA provides, inter alia, that

it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may--

* * *

* * *

(4) preserve important historic, cultural, and natural aspects of our national heritage.

42 U.S.C. § 4331(b) (emphasis added).

The heart and soul of NEPA is the requirement that Federal agencies, before taking action that may have a significant effect on the environment, must prepare a detailed environmental impact statement (EIS). In the terms of the statute:

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, a detailed statement by the responsible official on--

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

42 U.S.C. § 4332(2)(C) (emphasis added). Once accomplished, an environmental review under NEPA does not necessarily dictate any substantive outcome: the statute is merely intended to make decision makers aware of the potential environmental ramifications of their actions. Township of Lower Alloways Creek v. Public Service Electric, 687 F.2d 732, 739 n. 13 (3d Cir.1982).

In the present case, it is undisputed that HUD at no time prepared an environmental impact statement concerning the Dover Urban Renewal Project or considered whether an EIS was necessary. HUD argues that its inaction did not violate NEPA because the effective date of NEPA, January 1, 1970, succeeded the signing of the Loan and Capital Grant Contract by one year, and HUD's approval of the Urban Renewal Plan by two years.

The district court held, inter alia, that "NEPA [is] applicable to the ongoing Dickerson Street Urban Renewal Project because HUD has remained meaningfully involved in the Project after the date of its approval of the Urban Renewal Plan and the date of execution of the Loan and Capital Grant Contract. In the district court's view, HUD's continuing involvement in the project constituted "major federal action" within the meaning of 42 U.S.C. § 4332(2)(C), thus triggering the environmental review provisions of the Act. Our standard of review of the district court's holding is plenary.

A. Major Federal Action

HUD's position is that in cases where the Federal government provides funding for an urban renewal project, major federal action occurs only when the Federal government initially approves the proposed plan or any major amendment to the plan. See 47 Fed.Reg. 56271 (Dec. 15, 1982) (current interim rule); 24 C.F.R. § 50.62 App. A (1982) (prior HUD regulations). HUD relies on several cases which so hold. See e.g., San Francisco Tomorrow v. Romney, 472 F.2d 1021, 1024-25 (9th Cir.1973); Sworob v. Harris, 451 F.Supp. 96, 107 (E.D.Pa.), aff'd without opinion, 578 F.2d 1376 (3d Cir.1978), cert. denied, 439 U.S. 1089, 99 S.Ct. 871, 59 L.Ed.2d 55 (1979).

By contrast, appellees suggest that the words "major federal action" also require compliance with NEPA at any stage of the implementation of a federally-assisted project where a Federal agency has authority to require alteration of building or design plans to enhance the environment. This construction of NEPA, adopted by the district court, also finds support in several cases. See People Against Nuclear Energy v. United States Nuclear Regulatory Commission, 678 F.2d 222, 231 (D.C.Cir.1982), reversed on other grounds sub nom, Metropolitan Edison Co. v. People Against Nuclear Energy, --- U.S. ----, 103 S.Ct. 1556, 75 L.Ed.2d 534 (U.S.1983); WATCH v. Harris, 603 F.2d 310, 318, 326 (2d Cir.), cert. denied, 444 U.S. 995, 100 S.Ct. 530, 62 L.Ed.2d 426 (1979); Hart v. Denver...

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