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George Wash. Home Owners Ass'ns v. Widnall

ELR Citation: 25 ELR 20649
Nos. No. 94-S-1944, 863 F. Supp. 1423/(D. Colo., 09/29/1994)

The court denies environmental groups' and local residents' request for a preliminary injunction that would postpone the civilian reuse of Lowry Air Force Base near Denver, Colorado, until the performance of additional studies and analysis of environmental conditions at the base. The court first notes that because the requested injunction would disturb the status quo and afford the groups substantially all the relief they may recover at the conclusion of a full trial on the merits, the groups must demonstrate that the four factors necessary to obtain preliminary injunctive relief weigh heavily and compellingly in their favor—a heavier burden of proof than that for the more typical preliminary injunction.

Turning to the factors necessary to obtain injunctive relief, the court holds that in order to prevail on the first factor, the probability of success on the merits, the groups must demonstrate, in a compelling fashion, that they will eventually prevail on the merits of their claim that the federal defendants violated the National Environmental Policy Act (NEPA). The court holds that the relief the groups seek under their requests for a preliminary injunction and for final declaratory relief are indistinguishable. Because the groups cannot establish their entitlement to a preliminary injunction, they will likewise not prevail on the merits. The court also holds that the federal defendants demonstrated that in compliance with the Comprehensive Environmental Response, Compensation, and Liability Act, NEPA, and other similar laws, that the final environmental impact statement (FEIS) has taken the requisite "hard look" at the relevant environmental consequences of the reuse plan. The court holds that the groups have not met their heavy and compelling burden of demonstrating that the court should not give judicial deference to the FEIS. NEPA does not require the government to undertake every possibly test, study, or analysis. Requiring the government to gather all possible information would make project planning and estimation of completion dates practically impossible. The court concludes that the groups have not established that based on the exhaustive consideration of all relevant consequences under several applicable federal laws, the government has violated NEPA's procedural or substantive provisions.

Regarding the second factor, irreparable harm, the court next rejects the groups' contention that they have suffered or will continue to suffer irreparable harm due to the incomplete nature of the environmental analysis of the base. The groups have neither indicated the nature of their harm nor have they articulated any particular harm. The court holds that a procedural violation of NEPA, standing alone, is an insufficient basis for granting injunctive relief. The court holds that the groups are not entitled to an injunction, because they have failed to show any tangible harm to the environment. The court agrees with the federal defendants' and intervenors' assertion that there is no irreparable harm or any harm that would pose a significant adverse impact on the human environment. As to the third factor, the balance of harms the court holds that the groups have not demonstrated that the threatened injury to them in the absence of the preliminary injunction is greater than the injury the injunction would cause to defendants and intervenors. The character of any injury to the groups is past injury or speculative future injury, while the federal defendants and intervenors have demonstrated that the harm that issuing an injunction would cause them is real and immediate. Issuing the preliminary injunction would prevent the defendant-intervenor economic development authority from taking possession of the property on the base and subleasing to the defendant-intervenor nonprofit group and others, and postpone all other anticipated uses for an indefinite period of time. As to the fourth factor, which requires that an injunction not be adverse to the public interest, the court holds that issuing the preliminary injunction would be overly broad and adversely affect the public interest. The court holds that implementing the consensus effort the reuse plan signifies best serves the public interest. The court thus denies the groups' motion for a preliminary injunction.

The court next denies the groups' motion under 28 U.S.C. §445(b) to disqualify the judge based on the judge's disclosure that his son's and a friend's law firm may stand to benefit directly from representing a potential lessee of the property from the defendant intervenor-economic development authority. The court concludes that there is noreasonable factual basis on which to call the judge's impartiality into question. When the judge became aware of the potential conflict of interest, he had already made the determination of the merits of the groups' motion for preliminary injunction. Only the signature of the order, a ministerial task, remained. In addition, the relationship between the potential lessee and this litigation is remote and the judge had no knowledge that the law firm had any interest in the outcome of this proceeding. The court holds, therefore, that disqualifying itself from these proceedings would be improper.

Counsel for Plaintiffs
Mark A. Davidson
Leboeuf, Lamb, Greene & Macrae
633 17th St., Ste. 2800, Denver CO 80202
(303) 291-2600

Counsel for Defendants
Robert D. Clark, Ass't U.S. Attorney
U.S. Attorney's Office
1200 Federal Office Bldg.
Drawer 3615, Denver CO 80294
(303) 844-3400