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Hanly v. Kleindienst

Citation: 2 ELR 20717
No. No. 72-1959, 471 F.2d 823/4 ERC 1785/(2d Cir., 12/05/1972) Rev'd & remanded

For the earlier opinion of the Court of Appeals for the Second Circuit (dated May 17, 1972) sub nom. Hanly v. Mitchell, see 2 ELR 20216. On a second appeal, the court reverses the district court's denial of motions for jury trial and for a preliminary injunction against the construction of the Metropolitan Correction Center, a jail, in a densely urban area and remands for further proceedings. The court holds that the General Services Administration (GSA) complied with the National Environmental Policy Act (NEPA) § 102 (2) (A) and § 102 (2) (D) which mandate the use of an interdisciplinary approach and the development of appropriate alternatives, respectively, but that the agency failed to comply with § 102 (2) (B), which directs the agency to develop methods and procedures to insure that presently unquantified environmental values may be given appropriate consideration in addition to economic and technical factors, and with § 102 (2) (C), which requires the preparation of an environmental impact statement upon the threshold determination that a proposed major federal action "significantly" affects the quality of the human environment. The court reaffirms that the threshold determination of whether a proposed major federal action is so significant is committed to the agency in charge. Further, the court concludes that the agency must make threshold determinations under the procedural mandates of § 102 (2) (A), (B), and (D) irrespective of whether the agency found the proposed action to have an insignificant environmental effect. The requirements of § 102 (2) (C) are normally observed if the agency at least determines: (1) the extent to which the proposed action will cause harmful environmental effects in excess of those yielded by existing uses and (2) the absolute quantitative adverse impact including cumulative harm resulting from addition to present detrimental uses and conditions. To comply with §§ 102 (2) (A), (B), and (D) as well as § 102 (2) (C), the agency in charge must give to the public notice of the proposed major federal action and an opportunity to submit relevant facts before making its threshold determinations. The GSA acted contrary to law because it failed to include its assessment findings with respect to the existence of a drug maintenance program and to a possible increased crime rate and because the agency did not proffer a reasonable opportunity for the public to submit evidence on challenged findings of fact.

Counsel for Plaintiffs
Alfred S. Julien
Julien, Glaser, Blitz, & Schlesinger
2 Lafayette Street
New York, New York

Counsel for Defendants
Milton Sherman Asst. U.S. Attorney
Whitney North Seymour, Jr. U.S. Attorney
T. Gorman Reilly Asst. U.S. Attorney
U.S. Courthouse
Foley Square
New York, New York