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Aertsen v. Landrieu

Citation: 11 ELR 20005
No. No. 80-1206, 637 F.2d 12/15 ERC 2124/(1st Cir., 12/11/1980) Aff'd

Affirming the lower court's decision, 9 ELR 20618, the court determines that the Department of Housing and Urban Development (HUD) correctly concluded that the construction of a housing project in Boston's South End was not a major federal action requiring preparation of an environmental impact statement (EIS) under §102(2)(C) of the National Environmental Policy Act (NEPA). When funding became available for a second phase of the project HUD prepared a special environmental clearance statement, pursuant to its own regulations, which concluded that the project was not a major action having a significant impact on the area; thus a new EIS was not needed. The court rules that HUD properly considered only whether in light of the first housing project, the proposed project constituted a major action significantly affecting the human environment, not whether the total housing project constituted such an action. The court also finds that HUD did not violate §102(2)(E) of NEPA, which requires the agency to describe alternatives to a proposal where there are unresolved conflicts concerning alternative uses of available resources. Since the term "resources" does not include funds, HUD need not describe alternative uses of the funds committed to the project. Finally, the court holds that since the primary objective of Title I, §101 of the Housing and Community Development Act is to provide housing for persons of low and moderate income, HUD has no duty to provide integrated housing. HUD's finding that the area did not contain an "undue concentration" of persons receiving federal financial assistance within the meaning of §104 of the Act was supported by substantial evidence.

Counsel of Appellants
Thomas B. Bracken, J. Raymond Miyares
Bracken & Baram
33 Mt. Vernon St., Boston MA 02160
(617) 742-4950

Counsel for Appellees
Carolyn S. Grace, Ass't U.S. Attorney; Edward F. Harrington, U.S. Attorney
1107 John W. McCormack P.O. & Cthse., Boston MA 02109
(617) 223-3181

Jeffrey Swope
Palmer & Dodge
One Beacon St., Boston MA 02108
(617) 227-4400

Before Coffin, Bownes, and Wyzanski,* JJ.