Save Strawberry Canyon v. Department of Energy

• Decision Date: 18 March 2009
• Docket Number: No. C 08-03494 WHA.,C 08-03494 WHA.
• Parties: SAVE STRAWBERRY CANYON, a non-profit corporation, Plaintiff, v. DEPARTMENT OF ENERGY, et al., Defendants.
• Court: U.S. District Court — Northern District of California

613 F.Supp.2d 1177

SAVE STRAWBERRY CANYON, a non-profit corporation, Plaintiff, v. DEPARTMENT OF ENERGY, et al., Defendants.

No. C 08-03494 WHA.

United States District Court, N.D. California.

March 18, 2009.

Michael Robert Lozeau, Douglas Jonathan Chermak, Lozeau Drury, LLP, Alameda, CA, Richard Toshiyuki Drury, Lozeau Drury, LLP, Oakland, CA, for Plaintiff.

John Lynn Smith, Rose L. Standifer, Reed Smith, LLP, Oakland, CA, Barclay Thomas Samford, United States Department of Justice, Denver, CO, Peter Christopher Whitfield, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

WILLIAM ALSUP, District Judge.

INTRODUCTION

Plaintiff Save Strawberry Canyon brought this environmental action under the National Environmental Policy Act to challenge a large development project planned by the University of California and the Lawrence Berkeley National Laboratory. The complaint seeks a declaration that the project is a "major federal action" governed by NEPA and injunctive relief halting the project until defendants complete the environmental impact review required by NEPA. Plaintiff now moves for a preliminary injunction.

For the reasons stated below, this order finds that plaintiff has raised "serious questions" going to the merits of its claim that the project is a major federal action. Moreover, irreparable injury from the alleged NEPA violation is imminent inasmuch as the project is soon to break ground. A limited preliminary injunction will therefore issue to remain effective until the full merits can be resolved later this year.

STATEMENT

Plaintiff Save Strawberry Canyon is a local citizens' group based in Berkeley. Its mission is to preserve and protect the watershed lands and cultural landscape of Strawberry Canyon, which is located in the hills above the city of Berkeley. It pursues this mission by informing the public about the impacts of proposed developments, encouraging location of such developments to more suitable sites and promoting better public access to the canyon. Plaintiff brought this lawsuit seeking (i) a declaration that defendants' Computational Research and Theory Facility project is a "federal action" governed by NEPA and (ii) a preliminary and permanent injunction halting the development and construction of the project until NIPA compliance is achieved—in particular, the preparation of an environmental impact statement and public comment.

Defendants include the Department of Energy; the Secretary of Energy; the interim director of the Lawrence Berkeley National Laboratory ("LBNL"); and each of the members of the Regents of the University of California.

LBNL is a national laboratory operated for the benefit of the United States Department of Energy. It is overseen by DOE's Department of Science. LBNL conducts research across a wide range of scientific disciplines. Pursuant to a contract with DOE, it is operated and managed by the University of California. The DOE contract directs the contractor, i.e., the university, to accomplish the missions and programs assigned by DOE and ties LBNL's budget and program planning to those of DOE, inter alia, through performance-based contract approaches (see Lozeau Exh. A, A1).¹

The Computational Research and Theory Facility ("CRT") is a project proposed, and to be constructed, by LBNL and the University of California. It is to include a large new building at LBNL to house the Department of Energy's National Energy Research Scientific Computing Center; the associated High Performance Computing Center; and researchers and students from LBNL's Computational Research Division as well as the joint UC Berkeley-LBNL Computational Science and Engineering Program. It is also to include associated access driveways and other infrastructure. The building will be approximately 126,300 square feet in size and will be located in the western portion of the LBNL complex adjacent to Building 50, off of Cyclotron Road in Berkeley. It is to be owned by the Regents and constructed on Regents-owned land but is to be utilized by LBNL, as recognized in the 2006 Long Range Development Plan (Def. Req. Not. Exh. 4, 5; Lozeau Exh. B, D, K, M, N). Plaintiff claims that the project would damage the environment in or around the canyon (which as stated is located in the hills adjacent to LBNL and the Berkeley campus) and would harm its members' recreational and aesthetic enjoyment of the area.

A key purpose of the facility was to house DOE's Computational Research and Theory Facility, a series of large, high-performance computers which are currently housed in a leased facility in Oakland. The project was designed in part to accommodate the needs of the supercomputers, including cooling systems, air intakes and additional electrical power capabilities (Lozeau Exh. B-D; Lozeau Exh. I at 24).

Construction of the project is projected to cost approximately $13 million. Of that total, $107 million will be obtained from external financing which in turn will be repaid from LBNL operating funds if the federal government ultimately utilizes the facility. LBNL receives revenue from three primary sources: (1) Department of Energy (approximately 77 percent); (2) National Institutes of Health contracts and grants (approximately eight percent); and (3) other agencies' contracts and grants (approximately fifteen percent). The university understood that DOE will be supportive of the effort by agreeing to increase LBNL funding for the financing costs commencing in fiscal year 2011 (Def. Req. Not. 6-10; Lozeau Decl. Exh. C, E).

Defendants have taken no steps to comply with NEPA's requirements because, they maintain, they were not (and are not) required to do so. Defendants have been on notice at least since January 2008 of plaintiff's contention that the project is governed by NEPA. Plaintiff sent a letter to LBNL's Environmental Planning Group Coordinator dated January 4, 2008, expressing the view that the project is a federal action and therefore subject to NEPA. LBNL responded to plaintiff's letter and stated that the project "is not subject to NEPA review" (Lozeau Exh. D at 4.0-80, 4.0-105). LBNL and the university did, however, prepare an environmental impact report pursuant to the California Environmental Quality Act. Cal. Pub. Resources Code §§ 21000 et seq.

From the record as well as the parties' representations at the hearing, it is evident that project planning is at an advanced stage and construction of the project will begin in the near future, including the removal of trees and grading activities. Plaintiff filed suit in July 2008 alleging that defendants' initiation of the project will irreparably harm the environment, including via air pollution, aesthetic, cultural, noise and other environmental impacts which will impact plaintiff and its members. Plaintiff also claims procedural injury. The complaint asserts one claim for relief: a claim under the National Environmental Policy Act for a declaration that defendants are in violation of the Act and an injunction prohibiting defendants from initiating the project until and unless defendants comply with NEPA, including by preparing and considering an environmental impact statement and public comment. Plaintiff now moves for a preliminary injunction.

ANALYSIS

"In brief, the bases for injunctive relief are irreparable injury and inadequacy of legal remedies. In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). The Supreme Court recently clarified that, even where a likelihood of success on the merits is established, a mere "possibility" of irreparable injury will not suffice; rather, irreparable injury must be "likely." Winter v. Natural Resources Defense Council, ___ U.S. ___, 129 S.Ct. 365, 374-76, 172 L.Ed.2d 249 (2008). Injunctive relief has been found appropriate where a plaintiff shows likely irreparable injury and "that serious questions going to the merits were raised and the balance of hardships tips sharply in [the plaintiff's] favor." The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008).²

The University of California defendants and the federal defendants separately oppose the motion. Defendants do not dispute that they have yet to complete a federal EIS (although they did prepare an environmental impact report under California law). Both the UC defendants and the federal defendants contend, however, that they were are not required to do so because the project is not a "major federal action" and therefore is not governed by NEPA. The UC defendants further urge that the balance of equities and public interest weigh against injunctive relief.

1. A FEDERAL ACTION?

NEPA requires federal agencies to prepare "a detailed statement by the responsible official on . . . the environmental impact of the proposed action [and other matters]" for "every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. 4332(2)(C) (emphasis added). This "detailed statement" is often referred to as an environmental impact statement ("EIS"). As Section 4332(2)(C) clearly suggests, however, "[t]o trigger the application of NEPA, an action must be `federal.'" Rattlesnake Coalition v. Environmental Protection Agency, 509 F.3d 1095, 1101 (9th Cir.2007). When agencies do not know whether the effects of an action will be "significant" they are directed to prepare a shorter environmental assessment ("EA") to help make that determination. 40 C.F.R. 1501.4(b).

The term "major federal actions" is defined by regulation:

Major Federal action includes actions with effects that may be major and which are potentially subject to Federal control and responsibility . . . .

(a)...