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Landmark West! v. U.S. Postal Serv.

Citation: 24 ELR 21290
No. No. 92 Civ 9225 (KC), 840 F. Supp. 994/(S.D.N.Y., 12/29/1993)

The court upholds the U.S. Postal Service's (Postal Service's) determination that an environmental impact statement (EIS) is not required under the National Environmental Policy Act (NEPA) for a project involving the Postal Service's sale of its leasehold interest in an old post office site, the construction of a skyscraper on that site, and the relocation of the post office into the skyscraper. The court first holds that the developers' argument that the action is nonjusticiable is without merit because the court has the power to enjoin the developer from constructing the building if it received federal funding from or entered into a partnership or joint venture with the Postal Service, and to enjoin the Postal Service from relocating to the new building if the environmental review is found to be deficient. The court next holds that the doctrine of laches does not bar a neighborhood group's challenge to the Postal Service's finding of no significant impact (FONSI) because the Postal Service obscured the nature of its relationship with the developer from the group and cannot then claim that the group ought to have brought its challenge sooner.

The court next holds that the Postal Service's finding that the construction of the skyscraper is not a major federal action requiring performance of an EIS under NEPA is reasonable considering the Postal Service's degree of control and responsibility over the project. The Postal Service used its leverage to obtain favorable financial terms through arm's-length negotiations, not to control the project. The neighborhood group's contention that but for the Postal Service's decision to vacate the old post office and relocate to space in the new building, the skyscraper would not have been built on that portion of the lot, is insufficient to federalize the entire project. The remainder of the skyscraper would have been built regardless of the Postal Service's decision. Moreover, the neighborhood group has failed to demonstrate that the Postal Service retains any legal control as a result of funding the project. Rather, the Postal Service engaged in a market transaction that resulted in its having limited contractual control over the portion of the skyscraper which the post office is to occupy. There is no evidence to show that this limited contractual control gives the Postal Service any control over the size, shape, or uses for the project. The Postal Service's lack of control over the environmental impacts of the project as a whole indicate that it has not entered into a partnership with the private developer. Furthermore, the Postal Service's invocation of superior sovereignty to prevent local environmental review of loading docks was not used to shield the entire project from local environmental review as the project otherwise complies with all local zoning laws.

The court next holds that the Postal Service's FONSI for the portion of the skyscraper that will constitute the new post office is not arbitrary and capricious. The Postal Service's abandonment of a lease of office space does not implicate the rule that NEPA requires assessment of the environmental consequences of prospective buyers' likely use of federal land. Even if the rule were to apply in this case, the Postal Service would only be required to assess the effect of modifying its lease, abandoning the old building, and relocating. The court observes that the Postal Service did this when it determined that a skyscraper would be built regardless of whether it abandoned the old building, and therefore vacating the old building and relocating merely reconfigured the uses in the project. Moreover, in assessing the cumulative impacts of the project under NEPA regulations, the Postal Service properly considered only the marginal impacts of its own actions, assessing the relocation of the post office, the construction of the post office portion of the skyscraper, and the invocation of superior sovereignty to allow the loading docks. The court notes that even though the Postal Service may not have been forthright in its disclosure of potential impacts of the project, the environmental assessment addresses all relevant considerations in sufficient detail.

Counsel for Plaintiff
Edward C. Wallace
Phillips, Nizer, Benjamin, Krim & Ballon
31 W. 52d St., New York NY 10019
(212) 977-9700

Counsel for Defendants
Bernard W. Bell, Ass't U.S. Attorney
U.S. Attorney's Office
One St. Andrew's Plaza, New York NY 10007
(212) 791-0008