Town of Groton v. Laird, Civ. No. 15389.

• Decision Date: 11 December 1972
• Docket Number: Civ. No. 15389.
• Court: U.S. District Court — District of Connecticut
• Parties: TOWN OF GROTON, a municipal corporation, et al. v. Melvin LAIRD, Individually and as Secretary of the Department of Defense, et al.

353 F. Supp. 344

TOWN OF GROTON, a municipal corporation, et al. v. Melvin LAIRD, Individually and as Secretary of the Department of Defense, et al.

Civ. No. 15389.

United States District Court, D. Connecticut.

December 11, 1972.

COPYRIGHT MATERIAL OMITTED

James T. Haviland, II, Groton, Conn., for plaintiffs.

Stewart H. Jones, U. S. Atty., Henry S. Cohn, Asst. U. S. Atty., Hartford, Conn., Frank Lewis, Naval Facilities Engineering Command, Philadelphia, Pa., Capt. Edward Fink, Naval Judge Advocate General Corps, Washington, D. C., for defendants.

MEMORANDUM OF DECISION

BLUMENFELD, Chief Judge.

Plaintiffs are the Town of Groton, Connecticut, and nine individual residents and taxpayers of the town. Alleging that defendants, officers in charge of the Naval Submarine Base located in Groton and their superiors in the Department of Defense, have failed to comply with the requirements of Section 102(2)(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C),¹ they seek to enjoin all construction now being undertaken by the Navy on certain sites within the town.

I.

The relevant facts may be briefly stated. The Naval Submarine Base is a large complex located in Groton, and there is little doubt that the Navy's plans to improve the efficient operation of the Base presented for consideration here will shortly result in an increase in the resident population in the town. The Navy has long been concerned about the scarcity of housing in the area available at a cost which does not exceed the housing allowance granted its employees at the Base. In 1965, it began an initial exploration of possible sites in the general area and, out of ten surveyed, selected a lightly wooded and otherwise vacant plot known as Bailey Hill for the location of a 300-unit project.² In 1967, some of the sites were resurveyed, and the selection of Bailey Hill was reaffirmed. Consultation with Groton officials about specifics of the project has occurred intermittently since that time with attendant publicity in various local newspapers.³ Controversy about the Bailey Hill housing began to bubble in April of this year, when townspeople living on nearby property began complaining that the project conflicted with the town's zoning provisions for the neighborhood and would change its character. In July, several members of the Town Planning Commission, who were attempting to prepare a new plan of land use development for Groton, met with officers from the Base, who discussed their own preliminary plans for future utilization of Navy property in the Groton area. At this meeting, several particular projects were pointed out, but the Commission did not receive a copy of the proposed plan, which the Navy apparently felt was too inchoate to be released. A month later, on August 23, 1972, Captain Hawkins, Commander of the Base, along with Lt. Comm. Thomas of the Northeast Regional Facilities Command, met with the same officials and disclosed the so-called Master Plan for all Navy activity in the area. This was a $120,000,000 proposal involving construction of various housing facilities, commercial buildings, a chapel — projects that would obviously have considerable impact on the town and its residents. Up to this point, no formal public statement as to environmental effect had been issued.

Several town officials, distressed by the Navy's plans, met with Secretary of the Navy Charles Ill in Washington. An agreement emerged from that meeting: the Navy would cease all construction except on the Bailey Hill project and would file within six months an environmental impact statement, as required by NEPA, covering everything included in the Master Plan. In return, the town would forbear bringing suit to stop the Bailey Hill construction, for which an impact statement would not be required. Several weeks later, in early October, town officials discovered that construction proceeding on a site located on Gungywump Road⁴ was not, as they had thought, a Navy building but a credit union building for the use of Navy personnel owned by a civilian corporation. Claiming that continued work on this one building violated the agreement and rendered it void, plaintiffs sought a temporary restraining order in this court and requested that all construction be enjoined until an environmental impact statement on the Bailey Hill housing was filed.

The plaintiffs' request for a temporary restraining order was denied, but a hearing on the application for a preliminary injunction was consolidated with a trial on the merits. See Fed.R.Civ.P. 65(a)(2). Since I find that defendants' actions have complied with the directives of the statute, the prayer for injunctive relief must be denied.

II.

This court has jurisdiction over this controversy under 28 U.S.C. § 1331. Committee to Stop Rte. 7 v. Volpe, 346 F.Supp. 731 (D.Conn.1972). Defendants challenge the standing of plaintiffs to maintain this action, relying heavily on the recent decision in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). That reliance is misplaced. The Supreme Court there explicitly reaffirmed that "(a)esthetic and environmental well-being" are "interests . . . deserving of legal protection through the judicial process." Id. at 1366. See also, Association of Data Processing Serv. Organizations v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). It denied standing to the Sierra Club to contest a decision of the Forest Service to approve the construction of a gigantic resort in the Mineral King Valley because the club did not try to demonstrate that it or its members had personally suffered an injury, having "failed to allege that it or its members would be affected in any of their activities or pastimes by the Disney development." Id. Many of the club's members lived thousands of miles from the Mineral King Valley. Here, the Town of Groton alleges that the quality of the environment within its boundaries is being threatened by the defendants' actions. There can be no question that the town falls within the Sierra Club requirement that "the party seeking review must have himself suffered an injury," 92 S.Ct. at 1368. See also, City of Boston v. Volpe, 464 F.2d 254 (1st Cir. 1972). I, therefore, need not reach the question of whether the individual plaintiffs have standing.

III.

Section 102(2)(C) mandates that every federal agency undertaking any "major Federal actions significantly affecting the quality of the human environment" must file a detailed report examining, inter alia, the environmental impact of the action, unavoidable adverse environmental effects resulting from its implementation, and alternatives to the proposed action. This analysis has become known as the "environmental impact statement." More than a score of cases have established beyond question that failure to file the statement when one is required should result in an injunction against all further activity on the project until the agency has complied with the statute.⁵ But an environmental impact statement is not required every time a federal agency does anything. Before an environmental impact statement is required, two threshold factors must exist: the proposed action must be "major," and its effect on the human environment must be "significant." Both parties agreed that the Bailey Hill project, whether considered separately or together with the credit union building, constitutes a "major" action. The issue presented here is whether the environmental effect of the project will be "significant." The Navy, following both NEPA and its own regulations, OPNAV 6240.2A (defendants' Exhibit C), analyzed the environmental effects of the project and determined that they would not be significant. It, therefore, did not issue an impact statement but retained for its own planning purposes its "Assessment" of the project's expected environmental effect, which it continually updates.

This "threshold" determination of significance is a decision properly made in the first instance by the agency undertaking the action, but is reviewable by the courts. Hanly v. Mitchell, 460 F.2d 640, 644, 648 (2d Cir. 1972) (Hanly I). While the standard of review of such a decision had been expressly left open in this circuit, it was sub judice at the time of the hearing on this matter, and Hanly II, supra, 471 F. 2d at 829, just recently decided, has now settled this issue. The proper standard is that set forth in Section 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), which permits a reviewing court to set aside agency action only if it finds the action "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." Under this test, the Navy's determination that the project did not fall within the legislative purpose is clearly correct.

It is incontrovertible that NEPA requires administrative consideration of factors affecting "the quality of life for city residents,"⁶ Hanly I, supra, 460 F.2d at 647, before decision is made that the proposed agency action will "significantly (affect) the quality of the human environment." In its determination of non-significance, the Navy's Assessment took into account the following factors: health, safety, local socio-economic factors, transportation systems, vehicular and air traffic patterns, utility systems, public services, and aesthetics. It concluded that "(n)o adverse effect on humans is anticipated." (Plaintiffs' Exhibit 6, "Environmental Assessment" § B(1)(a)). Hanly II holds that in making such determination

"the agency in charge, although vested with broad discretion, should normally be required to review the proposed action in the light of at least two relevant factors: (1) the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it, and (2) the absolute quantitative adverse environmental effects of the action itself, including the

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