US v. 27.09 ACRES OF LAND, IN TOWN OF HARRISON

• Decision Date: 28 March 1991
• Docket Number: No. 88 Civ. 1805 (MEL),91 Civ. 0758 (MEL).,88 Civ. 1805 (MEL)
• Citation: 760 F. Supp. 345
• Parties: UNITED STATES of America, Plaintiff, v. 27.09 ACRES OF LAND, MORE OR LESS, SITUATED IN THE TOWN OF HARRISON AND THE TOWN OF NORTH CASTLE, COUNTY OF WESTCHESTER, STATE OF NEW YORK, the County of Westchester, and Unknown Others, Defendants, and Purchase Environment Protective Association, Inc., and Town of Harrison, Defendants-Intervenors. The CITY OF NEW YORK, Plaintiff, v. The UNITED STATES POSTAL SERVICE and Anthony Frank, as Acting Postmaster General of the United States, Defendants.
• Court: U.S. District Court — Southern District of New York

760 F. Supp. 345

UNITED STATES of America, Plaintiff, v. 27.09 ACRES OF LAND, MORE OR LESS, SITUATED IN THE TOWN OF HARRISON AND THE TOWN OF NORTH CASTLE, COUNTY OF WESTCHESTER, STATE OF NEW YORK, the County of Westchester, and Unknown Others, Defendants, and Purchase Environment Protective Association, Inc., and Town of Harrison, Defendants-Intervenors.

The CITY OF NEW YORK, Plaintiff, v. The UNITED STATES POSTAL SERVICE and Anthony Frank, as Acting Postmaster General of the United States, Defendants.

Nos. 88 Civ. 1805 (MEL), 91 Civ. 0758 (MEL).

United States District Court, S.D. New York.

March 28, 1991.

Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City (Diana J. Hassel, Paul K. Milmed, Asst. U.S. Attys., of counsel), for U.S., U.S. Postal Service and Anthony Frank.

Marilyn J. Slaatten, Westchester Co. Atty., White Plains, N.Y. (John Dillon, Susan B. Owens, Asst. Co. Attys., of counsel), for County of Westchester.

Daniel Piloseno, Town Atty., Leslie J. Snyder, Deputy Town Atty., Harrison, N.Y., for Town of Harrison and Village of Harrison.

Davis, Polk & Wardwell, New York City (Robert F. Wise, Jr., of counsel), for Purchase Environmental Protective Ass'n, Inc. Victor A. Kovner, Corp. Counsel of City of New York, New York City (Peter H. Lehner, Asst. Corp. Counsel, Environmental Prosecution Unit, and Susan E. Amron, of counsel), for City of New York.

LASKER, District Judge.

The United States brought the principal suit on behalf of the United States Postal Service (the "Postal Service" or the "Service") to condemn land for the construction of a new General Mail Facility and Vehicle Maintenance Facility ("GMF/VMF" or "facility") to serve all of Westchester and Putnam Counties, New York.¹

The City of New York (the "City") filed a separate suit for declaratory and injunctive relief in City of New York v. United States Postal Service, 91 Civ. 0758 (MEL). Westchester County and the Purchase Environmental Protective Association ("PEPA"), now joined by the Town of Harrison, and the City all move for a preliminary injunction barring construction of the postal facility pending completion of an Environmental Impact Statement ("EIS").² The United States moves for partial summary judgment on the issues raised by the motions for a preliminary injunction.

The proposed facility will require the paving of at least six acres of currently undeveloped land and will require the erection of two large buildings totalling roughly 873,000 square feet. The land is adjacent to the Westchester County Airport and therefore is extremely desirable to the Postal Service; it also includes wetlands and is within 700 feet of the Kensico Reservoir (the "Reservoir"), through which ninety percent of New York City's drinking water passes. These circumstances make critical the evaluation and management of the project's possible environmental consequences.

The motions put in issue the Postal Service's finding that its proposed facility will have no significant impact on the environment, and that accordingly no full EIS need be prepared before its construction pursuant to the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. (1988).

For the reasons discussed below, the motions for a preliminary injunction are granted, and the United States' motion for summary judgment is denied.

I.

For several years the Postal Service has engaged in planning to replace its current Westchester County, New York General Mail Facility and Vehicle Maintenance Facility, which it characterizes as "outmoded and inadequate." Review of a variety of possible locations led to the selection of the site now at issue, in the Towns of Harrison and North Castle, adjacent to the Westchester County Airport and Route 120, and very near Interstate Highway 684 ("I-684").

The proposed facility includes a multi-story General Mail Facility ("GMF") and a one-floor Vehicle Maintenance Facility ("VMF"), both intended to serve all of Westchester County. The site will include more than six acres of paved surfaces and over 873,000 square feet of building space. The facility is expected to operate 24 hours a day seven days a week, to generate 500 to 700 official vehicle trips and additional private vehicle trips each day, and to employ over 1,600 workers.

The Service initially selected the present site in February 1988, and that month published an Environmental Assessment ("EA") concluding that a full EIS ("EIS") was unnecessary because "significant environmental impacts are not anticipated which cannot be mitigated." On February 18, 1988, the EA was supplemented by a "Wetland Impact Report" identifying one affected wetland of .95 acres.

On December 23, 1988, the Service issued a revised EA, again concluding that no EIS was necessary.

In the fall of 1989, Congress, responding to controversy over the site's selection, passed a bill restricting funding for work at the site until February 1, 1990, and requesting the Service to report to the House Appropriations Committee as to possible alternative sites. Congresswoman Nita Lowey then established an independent Citizens Advisory Committee on Site Selection, which on January 8, 1990 recommended three alternate sites. The Service objected to these sites and in February 1990 issued another revised EA for the Harrison site. The new EA now identified a total of 1.371 acres of wetlands on the site.

On July 15, 1990, the Town of Harrison presented the Service with an extensive list of alleged inadequacies in the most recent EA, and demanded preparation of a full EIS.

In October 1990 the Service issued a fourth EA, which was followed on November 8, 1990 by the issuance of a finding of no significant impact ("FONSI") when anticipated mitigation measures were taken into account. This EA and its appendices consist of seven volumes containing extensive discussion of many possible environmental effects of the proposed Facility. It includes discussion of the anticipated impact of the project on the Kensico Reservoir, wetland areas on the site, traffic in the area, and wastewater disposal and water supply, as well as the project's cumulative environmental impact in conjunction with other nearby land uses.

Movants allege that the Service was arbitrary and capricious in declaring the project not likely to have a significant impact and failing to complete an EIS, and that the Service therefore has violated the requirements of NEPA and regulations pursuant to that statute. NEPA requires federal agencies to prepare an EIS before embarking on "major Federal actions significantly affecting the human environment." 42 U.S.C. § 4332(2)(C). Regulations pursuant to NEPA authorize agencies to conduct a preliminary environmental assessment ("EA") to determine whether a project is likely to have significant environmental effects, and accordingly whether a full EIS must be prepared. 40 C.F.R. § 1508.9(a)(1) (1990).

Movants allege that the present EA relies on several mistaken factual premises, that it neglects to consider other relevant factors, and more broadly that it is the result of the Postal Service's effort to justify a preordained result rather than to consider objectively the environmental consequences of the proposed action and its alternatives. Review of the record confirms the existence of a variety of shortcomings in the Service's EA, including that:

1) The EA's analysis of the facility's cumulative impacts failed to consider the compounding effects of present and anticipated future development in the area.

2) The EA's traffic analysis relies on the implementation of mitigation measures including the installation of new traffic signals and the expansion of existing roads although these measures have not received necessary state approval, and may therefore prove impossible to implement.

3) The EA fails to consider the effects of any failures of the proposed mitigation measures. This omission is especially troubling because the Service's proposed mitigation of the effects of stormwater runoff, which will pass through on-site wetlands to the Kensico Reservoir, is extensive but relies on measures whose effectiveness movants have cast into serious doubt.

II.

The dispositive issue on these motions is whether, despite the extensive analysis contained in its EA, the Service was arbitrary and capricious in finding that the project would have no significant impact.

A. Statutory and Regulatory Framework

Section 102 of NEPA requires a federal agency to prepare an EIS for "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). Because the United States concedes that the proposed facility constitutes a "major federal action" within NEPA's meaning, the pending motion hinges on whether the Service has adequately supported its finding that the facility will not affect the environment significantly.

Regulations guiding federal agencies in determining whether an EIS is required call for the completion of an environmental assessment ("EA") to provide "sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. § 1508.9(a)(1) (1990). This analysis is to "include brief discussions of the need for the proposal, and of alternatives." 40 C.F.R. § 1508.9(b).

In addition, Postal Service regulations require each EA to include:

1) A summary of major considerations and conclusions;

2) A description of the proposed action;

3) For each reasonable alternative, a description of the affected environment, the environmental consequences, the mitigation measures, if any, and a comparison to all alternatives considered.

39 C.F.R. § 775.7(a).

Postal Service regulations authorize the issuance of a "Finding of No Significant Impact" ("FONSI") if "there is no significant impact of a proposed action on the environment." 39 C.F.R. § 775.6(a)(2). The FONSI must "briefly present the reasons why an action will...