Preservation Coalition v. Federal Transit Admin.
| Decision Date | 31 March 2000 |
| Docket Number | No. 99-CV-745S.,99-CV-745S. |
| Citation | 129 F.Supp.2d 551 |
| Parties | PRESERVATION COALITION OF ERIE COUNTY Plaintiff, v. FEDERAL TRANSIT ADMINISTRATION, et al. Defendants. |
| Court | U.S. District Court — Western District of New York |
Francis C. Amendola, Richard G. Berger, Buffalo, NY, for Plaintiffs/Petitioners
Mary K. Roach, Timothy Hoffman, Buffalo, NY, Alice J. Kryzan, Hamberg, NY, for Defendants/Respondents.
DECISION AND ORDER
TABLE OF CONTENTS
INTRODUCTION ....................................................................... 554
BACKGROUND ......................................................................... 554
I. Applicable Statutes ......................................................... 554
II. Buffalo Inner Harbor Project ................................................ 556
III. Archeological Exploration At The Inner Harbor Site .......................... 557
IV. "No Adverse Effect" Determination ........................................... 558
V. Stage III Excavations ....................................................... 559
DISCUSSION ......................................................................... 560
I. Plaintiff's Standing ........................................................ 561
II. Scope Of Review And The Record Subject To Review ............................ 562
III. Preliminary Injunction Standard Of Proof .................................... 563
A. Likelihood of Success: Plaintiff's Arguments ............................. 564
1. Definition of Project Goals ........................................... 565
2. Archeology Exception .................................................. 565
3. Supplemental EIS ...................................................... 569
B. Irreparable Harm ......................................................... 572
1. Harm to Members' access to Commercial Slip Wall ....................... 573
2. Harm to the Proposal to Incorporate Commercial Slip Wall in to
a Functioning Slip ................................................... 573
3. Harm to Other Resources ............................................... 576
IN SUMMARY ......................................................................... 576
CONCLUSION AND ORDER ............................................................... 577
The following abbreviations and acronyms are used in this Decision:
APA — Administrative Procedure Act, 5 U.S.C. § 701, et seq.
NEPA — National Environmental Policy Act, 42 U.S.C. § 4321, et seq.
NHPA — National Historic Preservation Act, 16 U.S.C. § 470, et seq.
§ 106 of NHPA — (§ 106, process — when agency consults with SHPO over proper treatment of historic resources).
§ 4(f) § 4(f) of the National Transportation Act, 49 U.S.C. § 303
. . . . .
EIS — Environmental Impact Statement
FEIS — Final Environmental Impact Statement
SEQRA — State Environmental Quality Review Act, New York Environmental Conservation Law, § 8-0101, et seq.
. . . . .
"Criterion A" and "Criterion D" — criteria for inclusion in the National Register, found at 46 C.F.R. § 60.4, note. "Stage IA," "Stage IB," "Stage II" and "Stage III" — stages in archeological investigation of the Inner Harbor Project site, conducted by firm of Warren Barbour, Ph.D.
ESDC — Empire State Development Corporation (d/b/a New York State Urban Development Corporation)
NYSTA — New York State Thruway Authority OPRHP — Office of Parks, Recreation & Historic Preservation
Plaintiff Preservation Coalition of Erie County (Preservation Coalition or Coalition) has moved this Court for an Order preliminarily enjoining Defendants from engaging in construction at a site identified as the Buffalo Inner Harbor Project. The Coalition claims that construction at the Inner Harbor Project site threatens the imminent destruction of historic resources that are of great local and national significance. It claims that Defendants violated Federal and State laws that require consideration of the impact of the Project on historic resources and planning to mitigate harm to those resources.
This Court in its prior decision rendered on February 23, 2000 in this case, determined that the administrative record was insufficient to enable the Court to determine the issues essential to deciding the Preliminary Injunction Motion, and that the Coalition would therefore be permitted to call three witnesses. (Item no. 30, at 17, 20-21.) Those three witnesses, David Gerber, Ph.D., Daniel Rogers and Robert Z. Melnick, Ph D., testified on February 29, 2000. This Court then granted Defendants' request to call a rebuttal witness, Robert D. Kuhn. Ph.D., who testified on March 6, 2000.
Now, upon the parties' submissions and the testimony and evidence before this Court, Plaintiffs Motion for a Preliminary Injunction is granted in part and denied in part for the reasons stated in the discussion that follows.1
Preservation Coalition asserts claims under three Federal statutes which provide for protection of environmental, and particularly historic resources.2 The National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. requires the preparation of an Environmental Impact Statement (EIS) whenever a federally funded construction project significantly affects the quality of the environment. The EIS
serves NEPA's "action forcing" purpose in two important respects. It ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger audience that may also play a role in [] the decision making process.
Publication of an EIS ... gives the public the assurance that the agency has indeed considered environmental concerns in its decision making process and, perhaps more significantly, provides a springboard for public comment.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 1845, 104 L.Ed.2d 351 (1989) (Internal citations omitted.) In an EIS a "responsible official" must describe the environmental impact of the project, including any unavoidable adverse effects, and consider alternatives that might meet project goals while minimizing harm to the environment. 42 U.S.C. § 4332(2)(C).
NEPA is essentially a procedural statute. It requires that an agency take a "hard look" at environmental consequences of its projects, but does not elevate environmental concerns over other priorities, or prohibit a course of action that may harm resources, so long as the agency justifies its decision. Sierra Club v. U.S. Army Corps of Engineers, 772 F.2d 1043, 1050 (2nd Cir.1985).
The National Historic Preservation Act (NHPA), 16 U.S.C. § 470 et seq. requires that any federally funded undertaking "take into account the effect of the undertaking on any district, site, building, structure or object that is included in or eligible for inclusion in the National Register" of Historic Places. 16 U.S.C. § 470f. The State Historic Preservation Office (SHPO) is charged with recommending whether to include a resource in the National Register. 36 C.F.R. § 60.3(m). Any agency whose project impacts resources that may be eligible for the National Register must consult with SHPO to determine whether National Register criteria are met, and, if so, whether the project will adversely affect the resources. 36 C.F.R. §§ 800.4, 800.5. If the project is likely to have an adverse impact on a protected historic resource, SHPO must be consulted regarding alternative approaches to avoid or mitigate that adverse effect. Id. § 800.6. NHPA, like NEPA, is an essentially procedural statute, which requires planning to avoid or mitigate harm to historic resources, but does not prohibit projects simply because they are likely to cause such harm. Natural Resources Defense Council v. City of New York, 672 F.2d 292, 299 (2nd Cir.1982).
Since historic resources are a component of the environment protected by NEPA, Preservation Coalition v. Pierce, 667 F.2d 851, 858 (9th Cir.1982), a Federally funded project impacting such resources will be subject to two parallel review processes the EIS process under NEPA and the consultation process required by NHPA.3
Under § 4(f) of the Transportation Act, 49 U.S.C. § 303(c).4 Federal funding of a transportation project that adversely effects a historic site cannot be approved unless the agency shows that there is no feasible and prudent alternative to the use of the site and that it has done all possible planning to minimize harm to the site. § 4(f) protects resources eligible for the National Register. However § 4(f) does not apply to an archeological resource that is "important chiefly because of what can be learned by data recovery and has minimal value for preservation in place." 23 C.F.R. § 771.135(g)(2).
Where NEPA and NHPA require only that a project consider alternatives that mitigate harm to historic resources, § 4(f) prohibits use of a historic site unless its conditions are met. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 411, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). Since Federally funded transportation projects are often subject to NEPA's procedural requirements and the substantive requirements of § 4(f), an agency implementing such a project may opt to document its efforts to comply with § 4(f) in the Project's EIS. Thus, the FEIS in the present case addresses § 4(f) requirements with regard to the Inner...
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