Nucleus of Chicago Homeowners Ass'n v. Lynn

• Decision Date: 06 October 1975
• Docket Number: No. 74-1206,74-1206
• Citation: 524 F.2d 225
• Parties: , 5 Envtl. L. Rep. 20,698 NUCLEUS OF CHICAGO HOMEOWNERS ASSOCIATION et al., Plaintiffs-Appellants, v. James T. LYNN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 225

524 F.2d 225

8 ERC 1388, 5 Envtl. L. Rep. 20,698

NUCLEUS OF CHICAGO HOMEOWNERS ASSOCIATION et al., Plaintiffs-Appellants, v. James T. LYNN et al., Defendants-Appellees.

No. 74-1206.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 21, 1974.

Decided Oct. 6, 1975.

Joseph V. Karaganis, Chicago, Ill., for plaintiffs-appellants.

Carla A. Hills, Asst. Atty. Gen., Judith S. Feigin, Atty., Dept. of Justice, Washington, D. C., Samuel K. Skinner, U. S. Atty., Patrick W. O'Brien, Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, Chief Judge, KILKENNY, Senior Circuit Judge, ^* and SPRECHER, Circuit Judge.

FAIRCHILD, Chief Judge.

Plaintiff Nucleus of Chicago Homeowners Association (Nucleus) is an Illinois not-for-profit corporation organized "to prevent the damage to neighborhood communities which will result if low-rent housing for low-income families is placed in working-class and middle-class neighborhoods of Chicago." Along with certain Chicago community organizations and individual citizens residing proximate to proposed low income housing sites, Nucleus filed this lawsuit to enjoin the building of low-income housing units by the Chicago Housing Authority (CHA) with the assistance of the United States Department of Housing and Urban Development (HUD) on the ground that HUD officials failed to comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4331 et seq. After a full trial on the merits, the district court entered judgment for the defendants. We affirm.

I

This case is yet another episode in the continuing dispute over the location of public housing in the Chicago metropolitan area. The history of this litigation has been recounted elsewhere. See Chicago Housing Authority v. Austin, 511 F.2d 82 (7th Cir. 1975) cases cited in note 1. For our purposes only a few salient facts need be noted. As the responsible federal agency, HUD administers the use of federal funds to construct low-rent housing. See The Low-Rent Housing Act, 42 U.S.C. § 1401 et seq. The CHA is responsible for the construction of low-income housing in the City of Chicago. In order for CHA to receive federal funds, HUD must approve the site selection and construction of low-income housing. In 1969, CHA's site-selection and tenant assignment policies were found to be racially discriminatory. Gautreaux v. Chicago Housing Authority, 296 F.Supp. 907 (N.D.Ill.1969). To remedy this discrimination and desegregate the Chicago public housing market, CHA was ordered to construct the next 700 units of public housing at scattered sites in predominantly white neighborhoods composed of less than 15% low-income families. 304 F.Supp. 736 (N.D.Ill.1969). This judgment order was later amended to require the construction of 1500 units of low-income scattered-site housing. 342 F.Supp. 827 (N.D.Ill.1972). As an initial step to comply with this decree, HUD and CHA have instituted an 84-unit scattered-site housing project. ¹ At argument, we were informed that 63 units are presently under construction.

In 1972 plaintiffs filed this suit seeking to enjoin the construction of this public-housing on the ground that HUD officials failed to file an environmental impact statement pursuant to 102 of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332, assessing the impact of siting low-income public housing in middle and working-class neighborhoods. Plaintiffs alleged that low-income housing tenants as a group when compared to the social class represented by the individual plaintiffs possess "a higher propensity toward criminal behavior and acts of physical violence," "a disregard for physical and aesthetic maintenance of real and personal property," and "a lower commitment to hard work." Plaintiffs, in contrast, are alleged to belong to a social class that emphasizes "obedience and respect for lawful authority" and possesses "a much lower propensity for criminal behavior" and "a high regard for the physical and aesthetic improvement of real and personal property." Plaintiffs then charge that the proposed construction of CHA scattered-site housing "will have a direct adverse impact upon the physical safety of those plaintiffs residing in close proximity to the sites, as well as a direct adverse effect upon the aesthetic and economic quality of their lives" so as to "significantly affect the quality of the human environment."

Section 102 of NEPA provides that all "major Federal actions significantly affecting the quality of the human environment" must be accompanied by a detailed statement assessing the environmental impact of the proposed action, 42 U.S.C. § 4332(2)(C). ² The Council on Environmental Quality (CEQ), created pursuant to the Act and charged with the responsibility to oversee the implementation of NEPA, promulgated guidelines directing Federal agencies to establish their own procedures to identify those actions requiring environmental impact statements. 36 Fed.Reg. 7724. See 40 C.F.R. § 1500.3(a). In 1971 HUD issued draft regulations, which were effective immediately pending final approval, for the systematic environmental evaluation of the department's programs. In accordance with these regulations, HUD, beginning in July 1972, conducted a special environmental clearance for the first 84 sites CHA proposed to comply with the public housing construction ordered in the Gautreaux litigation, and in March, 1973 the agency issued a negative statement, or Finding of Inapplicability, stating that the project posed no significant environmental impacts. See 38 Fed.Reg. 19186.

At trial plaintiffs challenged the sufficiency of HUD's environmental review. Testimony was introduced on the basis of statistical studies to show that a substantial percentage of CHA tenants are female-headed multi-problem families. Such welfare dependent families as a social group, plaintiffs' experts testified, are acutely in need of employment opportunities and particularly dependent upon public programs providing day care facilities, health care, educational services, and youth and family counseling. If these special needs went unsatisfied, it was predicted that CHA tenants would be likely to cause problems for their neighbors, engaging in acts of violence and property destruction. Arguing that HUD had failed to examine these considerations, plaintiffs concluded that HUD had breached its duty under NEPA to weigh the potential environmental traumas associated with the construction of low-income public housing.

The district court rejected plaintiffs' claim. Doubting the utility of predicting human behavior on the basis of social statistics, the court held that plaintiffs had failed to prove that the social characteristics of the prospective CHA tenants will have a significant impact on the human environment so as to require HUD to prepare an environmental impact statement. This appeal followed.

II

As an initial matter, we note that the parties agree that HUD's determination that an environmental impact statement need not be filed must stand unless it is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. First National Bank of Chicago v. Richardson,484 F.2d 1369, 1381 (7th Cir. 1973). We have recognized that the national environmental policy expressed in NEPA is "as broad as the mind can conceive" and necessarily includes concern for the quality of urban life. But we have also realized that the environmental problems of the city "are not as readily identifiable as clean air and clean water." Id. 484 F.2d at 1377. Given these uncertainties, the case for relying on an agency's good faith judgment is particularly compelling, and we agree that the arbitrary and capricious standard that ordinarily governs review of administrative matters of this sort is controlling. Hanly v. Kleindienst, 471 F.2d 823, 828-30 (2d Cir. 1972), cert. denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974. But see Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1320 (8th Cir. 1974) (en banc ).

We dispose first of plaintiffs' contention that HUD violated its duty under NEPA to consider the comprehensive environmental impact of the 1500 unit scattered-site housing program when it confined its environmental analysis to the 84 units the agency has thus far approved. Reliance is placed on HUD and CEQ regulations that charge that proposed actions should be comprehensively evaluated. ³ These regulations, however, plainly vest HUD with discretion to determine the scope of agency action to be subjected to NEPA scrutiny. While a given action "may be more appropriately evaluated in a single environmental clearance," HUD is not compelled to aggregate several projects if, in its judgment, evaluation of the aggregate is not feasible.

Indeed, comprehensive evaluation of specific environmental impact is not possible here. CHA had not selected and HUD had not tentatively approved 1500 proposed housing sites at the time the 84 unit environmental clearance was performed. While no doubt there are environmental considerations common to all sites that are best considered in the aggregate, the fact that by design the sites are scattered throughout the neighborhoods of the city counsels for separate consideration of discrete sites. Cf. Indian Lookout Alliance v. Volpe, 484 F.2d 11, 18-19 (8th Cir. 1973). Thus, the scattered-site housing here differs decidedly from the construction of a group of buildings in a single location. See, e. g., Jones v. Lynn, 477 F.2d 885, 891 (1st Cir. 1973). In the latter case, prudence may well dictate consideration of the proposed construction as a single unit. Suffice it to say, that though we are cognizant of the benefits of comprehensive planning and do not intend to discourage such analysis, we cannot say that HUD has abused its discretion by choosing to evaluate the impact of CHA housing as housing sites are proposed and approved.

Plaintiffs next argue that HUD's decision...