NEW HOPE COMMUNITY v. US DEPT. OF HOUSING
| Decision Date | 16 March 1981 |
| Docket Number | No. 79-453-CIV-5.,79-453-CIV-5. |
| Citation | 509 F. Supp. 525 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | NEW HOPE COMMUNITY ASSOCIATION et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al., Defendants. |
Hugh G. Casey, Jr., Casey & Bishop, Charlotte, N. C., for plaintiffs.
Thomas A. McCormick, Jr., Raleigh, N. C., for City defendants.
Abraham Penn Jones, Asst. U. S. Atty., Raleigh, N. C., for Federal defendants.
Thomas W. Steed, Jr. and Charles D. Case, Allen, Steed & Allen, Raleigh, N. C. (Raymond C. Buday, Jr., Atlanta, Ga., of counsel), for Housing Authority defendants.
MEMORANDUM AND RECOMMENDATION
This case is before the court on defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56(b). The district court referred these motions to the U.S. Magistrate for recommendations pursuant to 28 U.S.C. § 636(b)(1)(B). Jurisdiction is founded upon 28 U.S.C. § 1331(a).
Plaintiffs challenge defendants' failure to prepare an environmental impact statement (EIS) pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., in connection with the proposed construction of a low-rent housing project in northeast Raleigh, North Carolina. Plaintiffs include the New Hope Community Association, a North Carolina nonprofit corporation, and individuals who own property in the vicinity of the proposed project. Defendants include the U.S. Department of Housing and Urban Development (HUD) and several HUD officials, the Housing Authority of the City of Raleigh (the Authority), and the City of Raleigh (the City). By complaint filed August 1, 1979, plaintiffs assert that the defendants' failure to prepare an EIS was violative of NEPA, and pray for declaratory and injunctive relief. Defendants assert that the proposed project is not a "major federal action significantly affecting the quality of the human environment" as defined by § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), and that therefore no EIS was required.
The project in question, HUD project NC 2-14, is a proposed 60 unit low-rent housing complex, and is to be located between U.S. 1 and Buffaloe Road in northeast Raleigh. Pursuant to federal statutes and regulations, the proposed project has been reviewed by various public authorities, including HUD, the Housing Authority, the City of Raleigh, the North Carolina Department of Natural Resources and Community Development, and the Triangle J Council of Governments, since the site was proposed by the defendant Authority in February of 1978.1 Although some minor reservations were expressed about the site along the way, the recommendations and determinations of the public bodies and their staffs have been essentially favorable.
The statute requires that the EIS be circulated at both the draft and final stages to appropriate federal, state, and local agencies for comment. NEPA also established the Council on Environmental Quality, which has the general responsibility of promoting the improvement of environmental quality. 42 U.S.C. § 4344. The Council has published regulations implementing the procedural provisions of NEPA. See, 40 CFR Part 1500, et seq.
The principal duty for ensuring compliance with NEPA falls, however, on the executive agencies. HUD has published implementing regulations at 38 Fed.Reg. 19181 (July 18, 1973), amended at 39 Fed. Reg. 38922 (November 4, 1974). These regulations describe three levels of environmental "clearances": Normal Environmental Clearance, Special Environmental Clearance, and Environmental Impact Statement ("EIS") Clearance. The regulations summarize the character of these various clearances as follows:
Normal clearance is essentially a consistency check with HUD environmental policies and standards and a brief evaluation of environmental impact. Special Clearance requires an environmental evaluation of greater detail and depth. Finally, an Environmental Impact Statement is the complete and fully comprehensive environmental evaluation, including formal review by other Federal, State and local agencies, as prescribed by section 102(c)(C) of NEPA. 38 Fed.Reg. 19181 at 19185, Para. 5a.
HUD has promulgated standards as to when a proposed project must be the subject of either a special clearance or an EIS. See Appendix A-1, 38 Fed.Reg. 19188, as amended, 39 Fed.Reg. 38923. A proposed public housing project of 500 units or more is required to be the subject of an EIS. A project of 200 or more units is required to be the subject of a "special clearance." Projects of less than 200 units receive "normal environmental clearance." As project NC 2-14 envisions only 60 units, pursuant to the aforementioned HUD regulations, it received only "normal environmental clearance." No EIS was prepared or filed. The HUD appraiser reviewed the site and found that "... the 60 units should have little environmental impact on the area." See affidavit of Billie Ward, at 4.
Plaintiffs assert that, notwithstanding the HUD regulations, project NC 2-14 is a "major federal action significantly affecting the quality of the human environment" within the meaning of § 102(2)(C) of NEPA, and that, therefore, an EIS should have been prepared. Specifically, plaintiffs assert that increased surface water runoff which would allegedly result from the construction of the project would cause severe flooding problems in the neighborhood surrounding the project, and, as such, the project would "significantly affect the quality of the human environment" in the area. In support of this contention, plaintiffs submit the affidavits of several property owners in the area, who attest to present dampness or flooding problems, and the report of Soil Systems, Inc., (SSI) an environmental engineering firm which was hired by plaintiffs to study the proposed project site. The SSI report concludes that the construction of the project would result in increased surface water runoff, that the present drainage system in the area is insufficient to handle the increased runoff and that serious flooding problems could be expected to occur in the surrounding neighborhood if the project is constructed. Plaintiffs contend that this report demonstrates that the project "significantly affects" the environment within the meaning of NEPA and that therefore an EIS should have been prepared and circulated.
The province of the court is not to determine de novo whether a project is a major federal action significantly affecting the environment so that an EIS should have been prepared. Rather, it is the province of the court to review HUD's threshold decision not to file an EIS. Hanly v. Kliendienst, 471 F.2d 823, 828 (2d Cir. 1972) cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973). In order to effectively review HUD's decision, the proper standard of review must first be determined. As defendants note, NEPA creates no private right of action. See Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Therefore, the court must look to the Administrative Procedure Act, (APA) 5 U.S.C. § 701 et seq., to determine the proper standard of review. Defendants contend that HUD's decision not to prepare an EIS should be set aside only if the court finds that decision to have been "arbitrary and capricious," citing the Supreme Court's interpretation of § 706 of the APA,2 5 U.S.C. § 706, in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 414-415, 91 S.Ct. 814, 822-823, 28 L.Ed.2d 136 (1971). It is clear that this is the proper standard of review where a final EIS has been prepared and circulated, and where plaintiffs challenge the substantive action of the federal agency. Coalition for Responsible Regional Development v. Coleman, 555 F.2d 398 (4th Cir. 1977). However, that is not the case here. Plaintiffs do not challenge the project itself; rather, plaintiffs challenge the failure of HUD to prepare an EIS. See, e. g., Joseph v. Adams, 467 F.Supp. 141, 152 (E.D.Mich.1978). The standard of review to be applied in this situation is not so clear-cut. See Metlakatla Indian Community v. Adams, 427 F.Supp. 871, 874 (D.D.C. 1977). The Fifth Circuit, in Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421 (5th Cir. 1973), and Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir. 1973), held that, in reviewing an agency's decision that a project is not a major federal action significantly affecting the environment (and is therefore not deserving of an EIS), the court should look to the "reasonableness" of the agency's threshold determination. "The spirit of NEPA would be violated if `an ex parte decision that a project was minor or did not significantly affect the environment were too well shielded from impartial review.'" Sadler v. 218 Housing Corp., 417 F.Supp. 348, 354 (N.D.Ga.1976), quoting Hiram Clarke, supra, ...
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