Touret v. National Aeronautics and Space Admin.

Citation485 F.Supp.2d 38
Decision Date26 April 2007
Docket NumberC.A. No. 04-198T.
PartiesWilliam G. TOURET, et al., Plaintiffs v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION et al., Defendants.
CourtU.S. District Court — District of Rhode Island

William G. Touret, Providence, RI, pro se.

Carolyn A. Mannis, Providence, RI, for Plaintiffs.

Michael P. Iannotti, U.S. Attorney Office, Joseph Avanzato, Kristen W. Sherman, Adler Pollock & Sheehan P.C., Beverly E. Ledbetter, Providence, RI, for Defendants.

MEMORANDUM OF DECISION

TORRES, Chief Judge.

Introduction

The plaintiffs brought this action for declaratory judgment pursuant to the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321, et seq., and the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701-706, to enjoin Brown University ("Brown") from constructing a life sciences building (the "LSB") and to declare erroneous a finding by the National Aeronautics and Space Administration ("NASA") and the Department of Energy ("DOE") that construction of the LSB would have no significant impact on the environment.

The plaintiffs claim that NEPA requires preparation of a full-blown Environmental Impact Statement ("EIS") because construction of the LSB is a "major federal action" that significantly affects the "quality of the human environment" and that the agencies' Finding of No Significant Impact ("FONSI") was arbitrary and capricious. The defendants argue, among other things, that this Court lacks jurisdiction and/or that the plaintiffs lack standing because construction of the LSB is not a "major federal action." The defendants also dispute the claim that the FONSI was arbitrary and capricious.

Because this Court finds that construction of the LSB is not a "major federal action" the plaintiffs' complaint is dismissed.

Facts

The relevant facts drawn from the administrative record, the submissions of counsel. and an evidentiary hearing conducted on January 8, 2007 are as follows. In 1999, Brown announced its intention to construct a new LSB which it, later, decided to locate on a site adjacent to its existing Biomedical Complex. The purpose of the LSB was to consolidate many of Brown's existing life sciences departments in one facility with modern laboratory space and to expand Brown's research capacity in the life sciences.

Initially, Brown planned to finance construction of the LSB entirely from its own funds, but, when it learned that federal monies might be available to pay for some of the construction costs, Brown applied for, and, ultimately received commitments from. NASA, DOE, and the National Institutes of Health ("NIH") totaling $10.25 million which represented about 11% of the total project cost.1

Brown formally announced its plan to construct the LSB in June of 2000 at a public meeting that it hosted prior to presenting its Master Plan to the City Plan Commission. In 2001, pursuant to § 106 of the National Historic Preservation Act ("NHPA"), the project was reviewed by the Rhode Island State Historic Preservation Officer and additional public meetings were held which were attended by a number of the plaintiffs. (Admin.R. 64-67.) In September of 2002, NASA, as the lead federal agency, initiated a NEPA review in order to assess the potential environmental impact of the project.

Throughout the NHPA and NEPA review process the plaintiffs expressed their concerns about possible adverse effects that the LSB might have on the College Hill Historic District and the health of nearby residents. (Admin.R. 77, 81.) Those concerns were voiced at the public meetings (Admin.R. 64-67), in articles and editorials in the local newspapers (Admin.R. 927, 1033, 1035-36), during meetings between Brown and the plaintiffs (Admin. R. 780, App. D to EA), and in various documents submitted to the defendants by the plaintiffs (Admin.R. 923-26, 1008).

On June 2, 2003, NASA and DOE (the "Agencies") issued a draft Environmental Assessment ("EA") in which they found that the LSB would have no significant impact on the environment. The Draft EA was published and interested parties were afforded 30 days in which to comment on it. On August 8, 2003, after receiving further comments from the plaintiffs and others, the Agencies issued a Final EA reiterating their FONSI.

Construction of the LSB began before this action was brought and it appears that construction, now, has been substantially completed.

Analysis
I. The Relevant NEPA Provisions
A. The EIS Requirement and the FONSI Exception

NEPA requires federal agencies involved in "major federal actions significantly affecting the quality of the human environment" to prepare detailed EISs that discuss the environmental impact of such actions and the alternatives that may exist. 42 U.S.C. § 4332(2)(C). Under NEPA, effects on the "quality of the human environment" include effects on public health. 42 U.S.C. § 4321; 40 C.F.R. § 1508.8; 40 C.F.R. § 1508.27(b)(2).

Regulations promulgated by the Council on Environmental Quality ("CEQ") to assist agencies in determining whether a proposed action would significantly affect the quality of the human environment contemplate a two-step process. First, the agency may decide whether the proposed action is categorically exempted from NEPA's environmental review requirements because it is a type of action that experience shows has no significant effect on the environment. See 40 C.F.R. § 1501.4(a)(2). If the proposed action does not fall into one of the exempt categories and it is clear that the action will have a significant environmental impact, a full blown EIS must be prepared. See 40 C.F.R. § 1501.4(a)(1). Alternatively, in cases where it is unclear whether the proposed action will significantly affect the environment, the agency may prepare an EA that "`briefly' discusses the relevant issues and either reaches a conclusion that preparation of an EIS is necessary or concludes with a `Finding of No Significant Impact' (called, in environmental jargon, a `FONSI')." Sierra Club v. Marsh, 769 F.2d 868, 870 (1st Cir.1985) (citation omitted). See 40 C.F.R. § 1501.4(b), (c).

In their briefs, the Agencies argue that the FONSI was supported by "agency experience" because DOE has a categorical exclusion for projects involving the construction of biomedical facilities. See 10 C.F.R. § 1021 Subpt. D, App. B3.12. While the categorical exclusion could not be applied in this case due to the LSB's potential impact on historically significant resources, the agencies argue that DOE's experience that such facilities do not significantly affect the human environment is nevertheless supportive of the FONSI in this case. See 10 C.F.R. § 1021 Subpt. D, App. B(4)(I). The Court rejects this argument because the EA never refers to, or purports to rely on, DOE's categorical exclusion.

If the EA concludes that the proposed action will significantly affect the human environment, a detailed EIS must be prepared but, if the agency makes a finding of no significant impact, no EIS is required. Sierra Club v. U.S. Dep't of Transp., 753 F.2d 120, 126 (D.C.Cir.1985). Thus, an EA has been described as "a rough-cut, low-budget environmental impact statement designed to show whether a full-fledged environmental impact statement — which is very costly and time-consuming to prepare and has been the kiss of death to many a federal project — is necessary." Cronin v. U.S. Dep't of Agric., 919 F.2d 439, 443 (7th Cir.1990).

In analyzing the effects of a proposed action, the agency must consider the cumulative effects of the project. 40 C.F.R. § 1508.8 (effects defined to include cumulative effects). The CEQ regulations define cumulative impact as "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." 40 C.F.R. § 1508.7.

B. FONSI Review

A party aggrieved by a FONSI may appeal to the district court pursuant to' § 10(e) of the APA, 5 U.S.C. § 706(2)(A). Under that section, the agency's determination will be affirmed unless it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).

In deciding whether a FONSI is arbitrary and capricious a court may not substitute its judgment for that of the agency but, rather, is limited to determining whether the agency "`has considered the relevant factors and articulated a rational connection between the facts found and the choice made.'" Dubois v. U.S. Dep't of Agric., 102 F.3d 1273, 1284-85 (1st Cir. 1996) (quoting Baltimore Gas & Elec. v. NRDC, 462 U.S. 87, 105, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983)). In the words of the Supreme Court, "[t]he only role for a court is to insure that the agency has taken a `hard look' at environmental consequences; it cannot `interject itself within the area of discretion of the executive as to the choice of action to be taken.'"; Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct. 2718, 2730, 49 L.Ed.2d 576 (1976). See, Dubois, 102 F.3d at 1284 ("NEPA requires that the agency take a `hard look' at the environmental consequences of a project before taking a major action.").

Generally, judicial review of the agency's decision is "confined to the full administrative record before the agency at the time the decision was made." Envtl. Defense Fund, Inc. v. Costle, 657 F.2d 275, 284 (D.C.Cir.1981) (citing Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973)). However, in relatively rare cases, the reviewing court may permit the record to be supplemented. See Esch v. Yeutter, 876 F.2d 976, 991 (D.C.Cir.1989); Conservation Law Found. of New England, Inc. v. Clark, 590 F.Supp. 1467, 1474-75 (D.Mass.1984). Here, this Court did permit some limited supplementation by the...

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