Proetta v. Dent
| Decision Date | 19 September 1973 |
| Docket Number | Docket 73-2329.,No. 357,357 |
| Citation | 484 F.2d 1146 |
| Parties | Adele PROETTA et al., Plaintiffs-Appellants, v. Frederick B. DENT, as Secretary of Commerce, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Peter P. Smith, III, New York City, and Thomas A. Bruno, Staten Island, N. Y., for plaintiffs-appellants.
Sanford I. Freedman, New York City, for New York City appellees.
Joseph F. Seminara, New York City, for appellee S & S Corrugated Machinery Co., Inc.
George Weller, for federal appellees.
Before SMITH, MULLIGAN and OAKES, Circuit Judges.
In this, another National Environmental Policy Act (NEPA) case, appellants seek reversal of an order of the District Court entered September 13, 1973, denying their application made on September 5, 1973 for a preliminary injunction restraining appellees from "proceeding with any phase of the project for the expansion" of S & S Corrugated Paper Machinery Co., Inc. ("S & S"). The present phase of the project is the clearing of the site, which phase is being carried out by the City of New York pursuant to its power of condemnation and under its own financing.1 The only federal involvement thus far has been the making of a loan commitment by the United States Economic Development Administration of the Department of Commerce (EDA) to S & S to finance a portion of the construction costs of its expanded plant. The terms of the loan commitment provide for repayment over 20 years at 6¼%. There has been a tentative allocation of funds by EDA, but no funds have been disbursed nor will any be disbursed to the City or for the purpose of demolition. Appellants' primary prayer for relief is against the City to halt the demolition and clearing of the site, but included within the prayer is a request for a preliminary injunction against EDA also, prohibiting it from disbursing any funds to S & S.
Appellants' ground for the relief sought is that EDA did not file an environmental impact statement (EIS, under § 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), upon its making the loan commitment in May 1970. This commitment is claimed by appellants to have been a "major Federal actions significantly affecting the environment."2
Judge Bartels denied the request for a preliminary injunction as to the City because the City is not the recipient of a federal loan or a direct beneficiary of a "major Federal action." He denied it as to EDA, because, since it was not until January, 1973 that it became clear as a matter of law that the loan commitment here was a "major Federal action," EDA cannot on the balance of the equities be held to strict compliance with NEPA requirements and because appellants did not object to the lack of an EIS until September 7, 1973, they were guilty of laches.
The case comes before us at this time on an expedited basis, first because some of appellants have been evicted and their homes demolished, and others are threatened with eviction by the appellee City of New York;3 second, because if the project site is not cleared by the October 4 deadline for the clearing of the site provided in S & S's contract with the City, appellee S & S has indicated that it will not continue with its expansion but will indeed leave Brooklyn, with the City losing hundreds of jobs accordingly.
We agree with the district court as to the denial of injunctive relief against the City. To be sure, there is authority for issuance of an injunction in a NEPA context against recipients of federal loans or financial assistance. Silva v. Romney, 473 F.2d 287, 289-290 (1st Cir. 1973) (). Cf. San Francisco Tomorrow v. Romney, 472 F. 2d 1021 (9th Cir. 1973); Upper Pecos Ass'n v. Stans, 452 F.2d 1233 (10th Cir. 1971), judgment vacated to consider mootness, Upper Pecos Ass'n v. Peterson, 409 U.S. 1021, 92 S.Ct. 2040, 32 L. Ed.2d 330 (1972). But see Ely v. Velde, 451 F.2d 1130 (4th Cir. 1971) (). Here, however, S & S is the beneficiary of the loan, but not the City.
The appellants argue that the City is indirectly the beneficiary of the loan or at least in a sense in partnership with EDA because the project here was conditioned upon S & S obtaining "satisfactory private or governmental financing."
The question when a partnership or joint venture exists for the purpose of defining when someone beside the federal government is subject to an injunction under NEPA is a difficult one, as Judge Bartels said and as the First Circuit cases indicate. Compare City of Boston v. Volpe, 464 F.2d 254 (1st Cir. 1972) with Silva v. Romney, supra. We have found no case,...
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Town of North Hempstead v. Village of North Hills
...except to the extent that a non-federal entity is found to be acting in partnership with the federal government, Proetta v. Dent, 484 F.2d 1146, 1148 (2 Cir. 1973); Silva v. Romney, 473 F.2d 287, 289-90 (1 Cir. 1973). See also Biderman v. Morton, supra, 497 F.2d at 1147. Plaintiffs make no ......
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Sierra Club v. U.S. Fish and Wildlife Service
...nonfederal defendant agreed that a federal agency would construct a transmission line and supply power to the plant); Proetta v. Dent, 484 F.2d 1146, 1148 (2d Cir.1973) (noting authority for issuing injunction in a NEPA case against non-federal recipients of federal loans or financial assis......
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N. A. A. C. P. v. Medical Center, Inc.
...conclude that section 1122 approval is a predicate for the plan.17 We believe the instant case is distinguishable from Proetta v. Dent, 484 F.2d 1146 (2d Cir. 1973) and Silva v. Romney, 473 F.2d 287 (1st Cir. 1973). Both of these cases involved direct, though contingent, financial obligatio......
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Landmark West! v. US Postal Service, 92 Civ. 9225 (KC).
...Trends v. Heckler, 756 F.2d 143, 155 (D.C.Cir.1985); accord Biderman v. Morton, 497 F.2d 1141, 1147 (2d Cir.1974); Proetta v. Dent, 484 F.2d 1146, 1148 (2d Cir.1973); cf. Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 295, 78 S.Ct. 1174, 1185, 2 L.Ed.2d 1313 (1958) ("Also beyond chall......