Silva v. Lynn, No. 73-1200.

• Decision Date: 05 July 1973
• Docket Number: No. 73-1200.
• Citation: 482 F.2d 1282
• Parties: Arthur SILVA et al., Plaintiffs-Appellants, v. James T. LYNN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

482 F.2d 1282 (1973)

Arthur SILVA et al., Plaintiffs-Appellants, v. James T. LYNN et al., Defendants-Appellees.

No. 73-1200.

United States Court of Appeals, First Circuit.

Submitted June 20, 1973.

Decided July 5, 1973.

Anne M. Vohl, Lexington, Mass., on brief for appellants.

James N. Gabriel, U. S. Atty., and Frederic R. Kellogg, Asst. U. S. Atty., Boston, Mass., on brief for James T. Lynn and others, appellees.

J. Owen Todd, and Hale & Dorr, Boston, Mass., on brief for Harry Wolk, intervenor, appellee.

Before COFFIN, Chief Judge, and CAMPBELL, Circuit Judge.

COFFIN, Chief Judge.

This is our second look at a controversy surrounding a housing project undertaken by a private developer with assistance from the Department of Housing and Urban Development (HUD). The facts of the case are to be found in Silva v. Romney, 473 F.2d 287 (1st Cir. 1973). See also 342 F.Supp. 783 (D.Mass.1972). Appellants, owners of land abutting the proposed Forest Glen Project in Stoughton, Massachusetts, argue that the district court wrongly dissolved the injunction against HUD and the developer because it erroneously found that the environmental impact statement (EIS) submitted by HUD complied fully with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4332(2) (C). While we agree with the district court that determining good faith compliance with § 4332(2) (C) should not be a vehicle for a court to "interject itself within the area of discretion of the executive", Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 838 (1972), we have concluded that the EIS in this case was insufficient on its face measured by the restrained but not meaningless applicable judicial review standards.

When HUD withdrew its initial appeal in this case in July, 1972, and agreed to the preparation of an EIS, there was every expectation that, although such an exercise involving a project of this scope was novel, HUD would be able to conduct a thorough analysis within a reasonable time. A draft EIS was sent out for comment on August 18, 1972 and replies collected from numerous federal, state, and local agencies and others, including appellants who presented objections to various aspects of the plan and the plan as a whole. Appellants contend that the final EIS, issued six and one half months later, on March 5, 1973, is deficient both in failing to discuss adequately the objections put forward and in not sufficiently explaining HUD's resolution of various environmental problems, as required by § 4332(2)(C). Thus, appellants argue, HUD is thereby legally precluded from giving final approval to the development.

In identifying the source of review power courts have, as did the district court here, drawn on NEPA itself, 42 U.S.C. § 4331 et seq., and the general "federal question" power, 28 U.S.C. § 1331. We think an alternative source, equally applicable, is the Administrative Procedure Act, 5 U.S.C. §§ 702 and 706. In any event, the judicial inquiries are whether the agency's findings and conclusions in the EIS are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and whether the agency followed the procedures required by law. In this case we face an underlying procedural matter which has much to do with a court's ability to perform its function of reviewing challenges to environmental impact statements.

In reviewing the final EIS and HUD's decision to proceed with the plan as described therein, the district court considered only the final statement, the draft statement and comments filed thereto, certain affidavits and testimony taken in court. It refused appellants' requests that the administrative record be produced. This record contains the more detailed studies and background of deliberation which form the basis of the final EIS. We think that the law requires production of the entire administrative record. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419-420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); see 5 U.S.C. § 706; cf. 28 U.S.C. § 2112.¹

Aside from the fact that this prerequisite to judicial review seems legally required, it makes good practical sense. Thus, even assuming that the final EIS might seem fully adequate standing alone, uncertainty must attend a court's approval of a statement based on an unknown "record of expert views and opinions, the technological data and other relevant material . . . on which the agency acted" but now refuses to supply. Appalachian Power Co. v. E. P. A., 477 F.2d 495, 507 (4th Cir. 1973). Moreover, to the extent that there is more than a perfunctory exchange of views incorporated in the record, i. e., a reflection of comments not merely on a preliminary draft but on new approaches or evidence subsequently developed, the need for taking additional evidence in court diminishes. The objective should be to develop an administrative record which is self-sufficient for adequate judicial review. Overton Park, supra, 401 U.S. at 420-421, 91 S.Ct. at 825-826. Finally, full disclosure is both a spur to reasoned decision making and a protection against criticism unfairly sought to be made after the agency's processes have concluded. Cf. General Transportation Co. v. United States, 65 F.Supp. 981 (D.Mass.), aff'd, 329 U.S. 668, 67 S.Ct. 75, 91 L.Ed. 590 (1946).

Once the complete record is before the court, it must determine the adequacy of the EIS. The relevant legal standards are those of NEPA which specifies procedures to be used in preparing an EIS for projects subject to that act;² requires that "presently unquantifiable environmental amenities and values . . . be given appropriate consideration in decision-making along with economic and technical considerations", 42 U.S.C. § 4332(2) (B); and mandates the agency involved to "study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources". 42 U.S.C. § 4332(2)(D).

The "detailed statement" required by § 4332(2) (C) serves at least three purposes. First, it permits the court to ascertain whether the agency has made a good faith effort to take into account the values NEPA seeks to safeguard. To that end it must "explicate fully its course of inquiry, its analysis and its reasoning." Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971); Appalachian Power Co., supra, 477 F.2d at 507. See also Natural Resources Defense Council v. E. P. A., 478 F.2d 873 (1st Cir. 1973); Environmental Defense Fund v. Ruckelshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971). Second, it serves as an environmental full disclosure law, providing information which Congress thought the public should have concerning the particular environmental costs involved in a project. To that end, it "must be written in language that is understandable to nontechnical minds and yet contain enough scientific reasoning to alert specialists to particular problems within the field of their expertise." Environmental Defense Fund v. Corps of Engineers, 348 F.Supp. 916, 933 (W.D.Miss.1972). It cannot be composed of statements "too vague, too general and too conclusory." Environmental Defense Fund v. Froehlke, 473 F.2d 346, 348 (8th Cir. 1972). Finally, and perhaps most substantively, the requirement of a detailed statement helps insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug. A conclusory statement "unsupported by empirical or experimental data, scientific authorities, or explanatory information of any kind" not only fails to crystallize issues, Natural Resources Defense Council v. Grant, 355 F.Supp. 280, 287 (E.D.N.C.1973), but "affords no basis for a comparison of the problems involved with the proposed project and the difficulties involved in the alternatives." Monroe County Conservation Council v. Volpe, 472 F.2d 693, 697 (2d Cir. 1972). Moreover, where comments from responsible experts or sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives, these comments may not simply be ignored. There must be good faith, reasoned analysis in response.

The final statement presented here falls far short of what is required and fails to serve the several purposes we have noted. Appellants' first and major challenge is to the statement's treatment of the drainage problem. The project's site contains a low wetland portion, in and near an area where the water table is high. Adjacent lower lying areas have historically experienced chronic flooding. This is plainly a major problem. We think it is not too much to ask that the problem be fully depicted, that HUD describe the approach that was taken, and the reasons why the particular mode of control was chosen in preference to others.

The draft statement circulated to agencies contained a four line description of a third drainage plan, agreed upon by HUD and the developer, describing the diameter of two pipes.³ This was inserted in the draft statement, together with a prior statement that a second plan, involving the construction of a series of holding tanks, was deemed "workable", and that the maintenance costs for the second plan could be provided for in the mortgage. The draft plan not only contained this inconsistency on its face but another which appears from external sources. While the draft plan, circulated as of August 18, 1972, stated that HUD had restudied the drainage problem with the developer and agreed to the third plan, the government affidavit, filed after hearing in the spring of 1973, stated that HUD had made its request for an in-house review to provide it with an engineering evaluation of the third drainage plan (dated June 27, 1972) in January of 1973 to be used for the preparation of...