Silva v. Lynn, No. 73-1200.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtCOFFIN, , and CAMPBELL, Circuit
Citation482 F.2d 1282
Decision Date05 July 1973
Docket NumberNo. 73-1200.
PartiesArthur SILVA et al., Plaintiffs-Appellants, v. James T. LYNN et al., Defendants-Appellees.

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.

482 F.2d 1283

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

482 F.2d 1284

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

482 F.2d 1285
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...

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95 practice notes
  • Sierra Club v. Morton, No. 74-1389
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 16, 1975
    ...486 F.2d 946, 953 (1973); Conservation Council of North Carolina v. Froehlke, 4 Cir., 473 F.2d 664, 665 (1973); Silva v. Lynn, 1 Cir., 482 F.2d 1282, 1283 (1973); Jicarilla Apache Tribe of Indians v. Morton, 9 Cir., 471 F.2d 1275, 1281 (1973). Contra, National Helium Corp. v. Morton, 10 Cir......
  • Sierra Club v. U.S. Army Corps of Engineers, Nos. 473
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 25, 1983
    ...process of decision by giving assurance that stubborn problems or serious criticisms have not been "swept under the rug." Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir.1973). The " 'detailed statement' " required by Sec. 102(2)(C) of NEPA thus "is the outward sign that environmental values an......
  • American Petroleum Institute v. Knecht, No. CV 77-3375-RJK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 31, 1978
    ...of factual findings are involved or where complainants request the full record, . . . the agency must produce it in court. Silva v. Lynn, 482 F.2d 1282, 1283 n.1 (1st Cir. 1973) (HUD decision to assist in a housing project); NRDC, Inc. v. Train, 171 U.S. App.D.C. 151, 155, 519 F.2d 287, 291......
  • Natural Resources Defense Council, Inc. v. Callaway, Civ. No. H-74-268.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • December 13, 1974
    ...for comment abound. Many courts have agreed and required an economic-cost-benefit analysis to be included in the EIS. See Silva v. Lynn, 482 F.2d 1282, 1287 (1st Cir. 1973); Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346, 352 (8th Cir. 1972); Montgomery v. Ellis, 364 F.Supp. 517......
  • Request a trial to view additional results
94 cases
  • Sierra Club v. Morton, No. 74-1389
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 16, 1975
    ...486 F.2d 946, 953 (1973); Conservation Council of North Carolina v. Froehlke, 4 Cir., 473 F.2d 664, 665 (1973); Silva v. Lynn, 1 Cir., 482 F.2d 1282, 1283 (1973); Jicarilla Apache Tribe of Indians v. Morton, 9 Cir., 471 F.2d 1275, 1281 (1973). Contra, National Helium Corp. v. Morton, 10 Cir......
  • Sierra Club v. U.S. Army Corps of Engineers, Nos. 473
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 25, 1983
    ...process of decision by giving assurance that stubborn problems or serious criticisms have not been "swept under the rug." Silva v. Lynn, 482 F.2d 1282, 1285 (1st Cir.1973). The " 'detailed statement' " required by Sec. 102(2)(C) of NEPA thus "is the outward sign that environmental values an......
  • American Petroleum Institute v. Knecht, No. CV 77-3375-RJK.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • August 31, 1978
    ...of factual findings are involved or where complainants request the full record, . . . the agency must produce it in court. Silva v. Lynn, 482 F.2d 1282, 1283 n.1 (1st Cir. 1973) (HUD decision to assist in a housing project); NRDC, Inc. v. Train, 171 U.S. App.D.C. 151, 155, 519 F.2d 287, 291......
  • Natural Resources Defense Council, Inc. v. Callaway, Civ. No. H-74-268.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • December 13, 1974
    ...for comment abound. Many courts have agreed and required an economic-cost-benefit analysis to be included in the EIS. See Silva v. Lynn, 482 F.2d 1282, 1287 (1st Cir. 1973); Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346, 352 (8th Cir. 1972); Montgomery v. Ellis, 364 F.Supp. 517......
  • Request a trial to view additional results
1 books & journal articles
  • Administering the National Environmental Policy Act
    • United States
    • Environmental Law Reporter Nbr. 45-4, April 2015
    • April 1, 2015
    ...against inadequate EISs. See e.g. , Environmental Def. Fund, Inc. v. Froehlke, 473 F.2d 346, 3 ELR 20001 (8th Cir. 1972); Silva v. Lynn, 482 F.2d 1282, 1284-85, 3 ELR 20698 (1st Cir. 1973). It is often reported that the volume of NEPA litigation peaked in 1974 on the basis of federal court ......

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