Olmsted Citizens for a Better Community v. U.S.

• Citation: 793 F.2d 201
• Decision Date: 10 July 1986
• Docket Number: No. 85-5141,85-5141
• Parties: OLMSTED CITIZENS FOR A BETTER COMMUNITY, a nonprofit Minnesota Corporation; Lowell Fredin and Ralph Lindeen, individually, Appellants, v. UNITED STATES of America, Bureau of Prisons, a bureau of the United States Department of Justice; Norman A. Carlson, Director of the Bureau of Prisons, individually and in his official capacity; Loy S. Hays, Chief, Office of Facilities Development and Operations, Bureau of Prisons, individually and in his official capacity, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 201

793 F.2d 201

27 ERC 2115

OLMSTED CITIZENS FOR A BETTER COMMUNITY, a nonprofit

Minnesota Corporation; Lowell Fredin and Ralph

Lindeen, individually, Appellants,

v.

UNITED STATES of America, Bureau of Prisons, a bureau of the

United States Department of Justice; Norman A. Carlson,

Director of the Bureau of Prisons, individually and in his

official capacity; Loy S. Hays, Chief, Office of Facilities

Development and Operations, Bureau of Prisons, individually

and in his official capacity, Appellees.

No. 85-5141.

United States Court of Appeals, Eighth Circuit.

Submitted Nov. 14, 1985.

Decided June 9, 1986.

Rehearing and Rehearing En Banc Denied July 10, 1986.

Robert Abdalian, Minneapolis, Minn., for appellant.

Claire McGuire, Washington, D.C., for appellee.

Before ARNOLD and WOLLMAN, Circuit Judges, and GUNN, ^* District Judge.

WOLLMAN, Circuit Judge.

Olmsted Citizens for a Better Community and the individual plaintiffs appeal the grant of summary judgment against them on their claims under the National Environmental Policy Act (NEPA). See 42 U.S.C. Secs. 4321-4347 (1982). The district court ¹ held that the government was not required to file an environmental impact statement in connection with the conversion of a former state mental hospital into a federal prisons hospital and that the document filed by the government adequately justified the lack of need for a complete environmental statement. Olmsted Citizens for a Better Community v. United States, 606 F.Supp. 964 (D.Minn.1985). ² We affirm.

The property at issue in this case is a 160-acre wooded campus bordering a neighborhood of family homes and an area of undeveloped land in the city of Rochester, Olmsted County, Minnesota. This campus was established in the late 1800s as a state mental hospital and in addition, for a number of years, provided medical treatment for a small percentage of state prisoners. The hospital was closed and the land deeded to the county in 1982. Even while the hospital had been operating, however, the campus apparently had been "open"--that is, used by the public for recreational activities.

In April 1983, the U.S. Bureau of Prisons began considering the acquisition of 64 acres of the campus for use as a federal prisons hospital. A document denominated as a "draft environmental impact statement" was circulated in November 1983; and following a review of the public comments received, a final "environmental impact statement" was published in February 1984. After another period for comment, the director of the Bureau of Prisons issued a "record of decision," and congressional approval for the project was obtained. The purchase of the county facility was finalized on May 1, 1984. Within the month Olmsted Citizens for a Better Community, a nonprofit corporation composed of Olmsted County property owners, taxpayers, and registered voters, joined by Lowell Fredin and Ralph Lindeen, two individuals residing in the area of the proposed hospital (hereinafter collectively referred to as "Olmsted Citizens"), filed suit challenging the adequacy of the government's consideration of environmental factors. ³

I.

The National Environmental Policy Act, while embodying substantive goals for the preservation of our physical environment, imposes basically procedural obligations in pursuit of these goals. Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223, 227, 100 S.Ct. 497, 499, 62 L.Ed.2d 433 (1980) (per curiam). Federal decisionmakers are required at the formative stages of planning to be fully informed about and make well-reasoned judgments regarding the environmental effects of their proposed actions. Id.; Kleppe v. Sierra Club, 427 U.S. 390, 409, 96 S.Ct. 2718, 2729, 49 L.Ed.2d 576 (1976). Such consideration is assured through the development of detailed statements, which have come to be known as "environmental impact statements," in connection with all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. Sec. 4332(2)(C). An environmental impact statement need not be prepared if the federal action will have no significant environmental impact, and the burden is on the challenger to raise a substantial environmental issue based on facts which were omitted from consideration in the administrative record. Winnebago Tribe v. Ray, 621 F.2d 269, 271 (8th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 110, 66 L.Ed.2d 43 (1980). Even once such a showing has been made, the negative determination on environmental impact will be upheld if the agency can support the reasonableness of its decision. Id.; Minnesota Public Interest Research Group v. Butz, 498 F.2d 1314, 1320 (8th Cir.1974) (en banc).

The majority of the alleged substantial environmental impacts asserted by Olmsted Citizens can be disposed of on the basis of the recent Supreme Court decision in Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983). The plaintiffs in Metropolitan Edison challenged the resumed operation of one of the nuclear power plants at Three Mile Island after a second plant there had malfunctioned, causing widespread concern but no dangerous release of radiation. The plaintiffs contended that the NEPA required the Nuclear Regulatory Commission before permitting reactivation to consider the threat to area residents' psychological health from fears of a nuclear accident.

The Supreme Court, however, stressed that the NEPA was not a vehicle for the airing of general policy objections to federal action but was addressed to the end of protecting human health and welfare only through the means of protecting the physical environment. Id. at 772-74, 777, 103 S.Ct. at 1560-61, 1562. The NEPA legislative history, the Court observed, showed a primary concern with potential irreparable damage to the physical resources that support life--i.e., air, land, and water, id. at 772-73, 103 S.Ct. at 1560--suggesting thus that the only harms as to which agency consideration was meant to be required were those harms following closely from changes in the physical environment. Id. at 773-74, 103 S.Ct. at 1560-61. Applying that conclusion to the case before it, the Court held that while the risk associated with advancing technology was an important policy consideration, the fear arising from the "risk" of a nuclear accident (in contrast to the impact on the environment should such an accident occur) was not an effect caused by a change in the physical environment as necessary to force consideration under the NEPA. Id. at 775-76, 103 S.Ct. at 1561-62.

Olmsted Citizens alleges that the effects of converting part of the mental hospital campus into a federal prisons hospital will include the introduction of weapons and drugs into the area, an increase in crime, and a decrease or halt in neighborhood development. These impacts, however, follow not from any physical changes connected with the conversion but from the social changes reflected in the nature of the use of the facility and in the types of people that will be present. Even before Metropolitan Edison this court had held that a project's potential for contribution to criminal activity and alteration of the character of a neighborhood would not require development of an environmental impact statement. Como-Falcon Community Coalition v. United States Department of Labor, 609 F.2d 342 (8th Cir.1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2154, 64 L.Ed.2d 789 (1980). ⁴ Similarly, other courts also distinguish urban environmental concerns--such as increased congestion, noise, or odors--from the mere dislike or fear of a certain socioeconomic class of persons or the alteration of the nature or amount of commercial activity in the area. ⁵ While there is no "bright line" between the "physical" and the "socioeconomic" in the urban context, an impact statement generally should be necessary only when the federal action poses a threat to the physical resources of the area because of anticipated traffic, population-concentration or water-supply problems or involves the irreversible alteration of a rare site. Azzolina v. United States Postal Service, 602 F.Supp. 859, 862 (D.N.J.1985); see Breckinridge v. Rumsfeld, 537 F.2d 864, 865 (6th Cir.1976), cert. denied, 429 U.S. 1061, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977); Citizens Committee Against Interstate Route 675 v. Lewis, 542 F.Supp. 496, 533-34 (S.D.Ohio 1982).

Olmsted Citizens attempts to distinguish Como-Falcon and similar cases on the basis of an oft-quoted passage stating that socioeconomic effects are to be considered in an environmental statement when the federal action at issue also has a primary impact on the natural environment. 609 F.2d at 345 (quoting Image of Greater San Antonio v. Brown, 570 F.2d 517, 522 (5th Cir.1978). Such an impact, Olmsted Citizens argues, was absent in Como-Falcon but is present with the conversion of the mental hospital to a prisons hospital. We reject this argument for two reasons.

First, it is unlikely that such a distinction survives the recent Supreme Court holding in Metropolitan Edison. That decision, as discussed above, was based on congressional intent, and there is no suggestion that Congress contemplated that the process it designed to make agencies aware of the consequences of their actions with regard to the physical environment would be converted into a process for airing general policy objections anytime the physical environment was implicated. Such a rule would divert agency resources away from the primary statutory goal of protecting the physical environment and natural resources, just as in Metropolitan Edison. See 460 U.S. at 776, 103 S.Ct. at 1562. Furthermore, courts even before Metropolitan Edison had commented on the anomaly of requiring that an agency consider impacts not sufficient to trigger preparation of an ecological statement just because such a statement was required for other unrelated reasons. E.g., Citizens...