Charting the Boundaries of NEPA's Substantive Mandate: Strycker's Bay Neighborhood Council, Inc. v. Karlen

According to at least some of the voluminous literature on the subject, the National Environmental Policy Act (NEPA)¹ may be an excellent example of effective environmental legislation, but it suffers from one serious limitation: the lack of a "substantive mandate."² These commentators argue that NEPA falls short of its potential, and perhaps its goals, because it fails explicitly to impose upon federal agencies a legally enforceable directive to enhance and refrain from degrading the environment. The absence of a single plaintiff's victory in a "substantive NEPA case"³ is accentuated by the extraordinary success record of those challenging agency noncompliance with the law's procedural dictates, specifically with respect to the preparation of environmental impact statements (EISs).

Although NEPA could have been drafted to pack more of a substantive punch,⁴ the contrast between its procedural strength and its substantive weakness is more interesting as an academic issue than important as a practical matter. This is demonstrated by a series of court decisions in which judges have avoided the harsh and often elusive distinction between the Act's substantive and procedural requirements and instead have instituted a thoughtful application of traditional principles of judicial review against a backdrop of the nation's environmental policies. Nevertheless, the notion that a chasm runs through the statute is firmly rooted.

The United States Supreme Court first embraced this bifurcated view of the Act in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc.,⁵ in which it made the oft-quoted and intriguingly ambiguous statement that NEPA's mandates are "essentially procedural."⁶ On January 7 of this year the Court painted an identical picture of NEPA with the same language in Strycker's Bay Neighborhood Council, Inc. v. Karlen,⁷ while similarly vacating the lower court's injunction against a federal project. Yet in Strycker's Bay the Court was faced for the first time with the question of whether a specific agency decision could be invalidated as contrary to NEPA's substantive commands. Specifically, the issue was whether the Department of Housing and Urban Development (HUD) had given inadequate weight to environmental concerns when evaluating several alternative plans for a housing project. The United States Court of Appeals for the Second Circuit had remanded the agency's selection on the suprising grounds that it had failed to elevate environmental values above all other project objectives and had overemphasized the risk that one environmentally "superior" alternative would lead to delay in the project completion schedule.⁸

The Supreme Court's brief, per curiam opinion does not delineate fully its view as to how NEPA's substantive provisions influence administrative decision making, but it makes one point quite clear: the Second Circuit went too far. It was wrong to read the Act to require more than "consideration" of the environmental implications of the alternative courses of action contemplated by the agency. Since "consideration" is all that is required and since the courts at all three levels were in agreement that HUD had at least "considered" the environmental pros and cons of the available alternatives, the commands of the statute had been met and the agency's decision had to be sustained.

Background: NEPA's Substantive Mandate

Section 102(2)(C) of NEPA requires that federal agencies prepare an EIS before embarking on "major Federal actions significantly affecting the quality of the human environment."⁹ This is NEPA's prime procedural or "action forcing" requirement, and it has been the fulcrum in a preponderance of the NEPA cases decided to date. Yet despite the impact of § 102(2)(C) on the agencies, the courts, and to some extent to environment, it [10 ELR 10040] actually occupies a relatively small portion of the text of the statute. The remainder and vast majority of title I of NEPA consists of statements of national environmental policy and directives to agencies and citizens to carry out that policy.

Section 2 is a declaration of statutory purposes that sketches in bold strokes the lofty congressional aspirations underlying the statute.¹⁰ Section 101 is a declaration of policy that appears intended to refine the preceding statement of purposes into a more easily implemented series of national goals. Yet the goals expressed in § 101 are equally if not more ambitious and ephemeral than the purposes in § 2. In NEPA Congress exhorted the nation:

to fulfill each generation's responsiblity as environmental trustee for the next;

to assure for all Americans esthetically and culturally pleasing surroundings;

to obtain the widest range of beneficial uses of the environment without risk to health or safety;

to maintain, where possible, an environment which supports diversity and variety of individual choice;

to maintain population levels so that life's amenities may be widely shared; and

to approach the maximum recycling of nonrenewable resources.¹¹

Standing alone, such dramatic statements might understandably be dismissed as the well meaning but nonbinding resolutions of a Congress sensitive to and in some measure responsible for the poor health of the environment. However, § 102 provides that, on the contrary, "to the fullest extent possible" the laws and regulations of the nation "shall be interpreted and administered in accordance with" such policies.¹² Use of the phrase "to the fullest extent possible," appears to demonstrate congressional intent to effect a real shift in agency priorities. Further evidence that Congress intended this kind of result is furnished by § 103,¹³ which ordered agencies to review their existing statutory authority, regulations, policies, and procedures in order to identify any deficiencies that might hinder full compliance with not only NEPA's procedural requirements but also its purposes. Within 18 months they were to prepare legislation, regulations, and other measures necessary to remove any impediment to full achievement of the Act's procedural as well as its substantive provisions.

It is thus clear from the face of the statute that Congress did not intend the elegant policy statements of § 101 to serve merely as window dressing to the EIS requirement of § 102. It was well aware that the misdeeds of the federal government were primarily due not to procedural breakdowns but to the narrow outlook of mission-oriented agencies and administrators.¹⁴ Yet neither the statutory language nor the legislative history make clear exactly what Congress did have in mind when it enacted § 101.

The difficulties in inferring the intended role for § 101 are due in large part to the sweep of the statutory language. If read and enforced literally it would lead to absurd results that could not have been within the intent of Congress. For example, Congress could not have meant to authorize the courts to restrain the executive branch from taking any action involving "risk to health or safety, or other undesirable or unintended consequences." Whether viewed as ambitiousness or hyperbole, the eloquence of the substantive portions of NEPA appears to have led ultimately and ironically to their unenforceability. Though laudable as national objectives they do not translate readily into usable standards of judicial review. Perhaps the opposite would be true if in § 101 Congress had stated that "federal actions are to be planned and designed so as to minimize adverse environmental effects to the extent possible." However, by aiming much higher (or perhaps lower) than this, Congress failed to convince the courts that one of the key statutory purposes was better environmental decisions by the agencies, not just better decision-making procedures.

Case Law

In the aftermath of NEPA, the courts demonstrated their willingness to hold agencies to an exacting standard of compliance with the Act's procedural requirements. However, this was matched by a reluctance, particularly in cases involving hundred-million dollar federal projects, to halt or even delay an action because it failed to further Congress' long-range environmental objectives. When faced with substantive claims under the Act, judges tended to dismiss § 101 as merely fancy paper in which § 102(2)(C) was wrapped. Indeed, in the first two years after enactment it appears that no federal district court was willing to remand or even affirm agency action on the basis of its environmental merits.¹⁵ The prevailing view was that the Act's statements of policy were not intended to create rights assertable by citizens in court.¹⁶ In [10 ELR 10041] addition, by denying the Act's substantive aspects judges could avoid the difficult and distasteful task of "substituting their judgment for the agencies."

This developing view of NEPA was shattered by two influential court of appeals decisions. In Calvert Cliffs Coordinating Committee, Inc. v. Atomic Energy Commission,¹⁷ the United States Court of Appeals for the District of Columbia Circuit chastized the Atomic Energy Commission for its "crabbed" interpretation and grudging implementation of the Act. Though the court was concerned principally with the agency's disregard of its procedural obligations, Judge Wright went on to describe the circumstances in which courts can issue an injunction against an action for substantive reasons:

[T]he reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values.¹⁸

Thus two standards of substantive review under NEPA were christened: "arbitrary balancing" and "clearly insufficient weighting" of environmental values. The former is apparently derived from the substantive standards in the Administrative Procedure Act (APA).¹⁹

In Environmental Defense Fund v. Corps of Engineers,²⁰ the United States Court of Appeals for the Eighth Circuit affirmed the lower court's approval of the EIS for the Gillham Dam but faulted the district court for failing to consider seriously the plaintiffs' substantive claims under § 101. Emphasizing that NEPA is more than a "full disclosure law," the court found that the Act imposes on agencies a duty to "consider" and "give effect to" the environmental goals that it sets forth.²¹ Yet a reasonably close reading of the opinion makes it clear that the court justified its review of the substantive agency decision not on NEPA but on the APA. For example, as to the question of whether the court had power to consider the substance of the decision to build the dam in question, the court found NEPA silent. It instead derived this power from the common law and the APA. As to the standard of review to be applied, the court voiced several formulations,²² but made it clear that the essential determination is whether the decision was "arbitrary and capricious" within the meaning of the APA and Overton Park.²³ Evidently, the role of NEPA was to provide policies and national goals to be used in determining the rationality or arbitrariness of the decision. The court went on to uphold the Corps of Engineers' decision to proceed with the Gillham Dam, basing its decision in significant part on the fact that the dam was 63 percent complete when the litigation had begun.

Virtually all circuit courts of appeals have sanctioned this combined application of NEPA and the APA.²⁴ Two circuits concluded initially that NEPA created no enforceable substantive rights, later to realize that the APA provides authority for substantive review and that NEPA supplies applicable standards.²⁵ Only the United States Court of Appeals for the Tenth Circuit seems not to have been presented with an opportunity to overturn its ruling that NEPA is purely procedural,²⁶ but this is clearly an archaic view of the statute that does not square with more recent interpretations. The Supreme Court, for example, has acknowledged Congress' intent that "environmental concerns be thrust into the very process of agency decisionmaking,"²⁷ and that an EIS is only the "outward sign that environmental values and consequences have been considered …."²⁸ More to the point, the Court has stated that agency decisions under NEPA can be set aside for "substantive reasons as mandated by statute."²⁹

To summarize, when courts are called on to review the consistency of an administrative decision with NEPA's substantive, as distinguished from its procedural, requirements, [10 ELR 10042] they turn instinctively to the "arbitrary and capricious" standard as found in the APA and explicated by the Supreme Court in Overton Park. In this formula NEPA's role seems limited largely to identifying environmental or social objectives against which the reasonableness or arbitrariness of the particular agency decision under examination is to be determined. In carrying out this examination for arbitrariness, reviewing courts have voiced a wide range of alternative tests of agency behavior, such as "good faith judgment" and "full consideration of" or a "hard look at" environmental concerns. The innate difficulty in distinguishing or defining these terms is accentuated by the fact that not one of them has ever been applied to invalidate final agency action under NEPA.³⁰

Strycker's Bay

In 1962 the Department of Housing and Urban Development (HUD) and the City of New York joined in preparing an urban renewal plan for a 20-square-block area on Manhattan's west side. The original plan called for construction of dozens of high-rise apartment buildings in which 70 percent of the units would be designated for middle-income tenants and 30 percent reserved for low-income tenants. Subsequently, officials in charge of the project saw a greater need for low-income housing in the city and decided to change the income mix of the residents accordingly. One manifestation of this change was the conversion of one of the proposed buildings, known as Site 30, from an exclusively middle-income building into an exclusively low-income building. The site was situated on a city block consisting entirely of low-income residences.

Plaintiffs, allegedly in reliance on early representations by defendants that the area would be inhabited by a higher proportion of middle-income residents, had purchased property and made other investments in the immediate neighborhood. They filed suit for an injunction against implementation of the final plan, arguing that by changing the target income levels for Site 30 defendants were changing the area from an economically mixed one into a "pocket ghetto," to the detriment of plaintiffs and others in the area. They charged, among other things, that defendants had violated their duty to promote integrated housing under the 1968 Fair Housing Act³¹ and had failed to comply with NEPA.

The district court ruled in defendants' favor on all issues.³² Under NEPA it determined that the conversion of Site 30 did not involve significant environmental effects and thus did not necessitate the preparation of an EIS. Plaintiffs had also alleged that regardless of whether an EIS was required, HUD was nonetheless required under § 102(2)(E)³³ of the Act to "study, develop, and describe" alternative means of achieving the goal of increased low-income housing. Here the district court made a fatal error of law. It concluded that NEPA requires no consideration of alternatives to projects that do not meet the threshold of significance that triggers the EIS requirement in § 102(2)(C).

The Second Circuit upheld³⁴ the trial court in all respects except its interpretation of § 102(2)(E). There the error was clear: NEPA requires extensive analysis of alternatives to federal activities, even those not causing "major environmental effects."³⁵ Listing a series of alternative solutions to the problem which HUD should have considered, the court remanded the case with instructions to the agency to assess these and other appropriate alternative within a judicially reviewable record.

The court did not stop there, however. It ordered HUD not to explain simply why it chose to resolve the problem in a certain way. Rather, the "reviewable record" had to focus on the alternative which would achieve economic integration "with a minimum of adverse environmental impact."³⁶ In addition, it warned HUD that it would not approve any plan calling for concentrated groupings of low- and middle-income units at opposite sides of the urban renewal area, since this would not be consistent with the purposes of the plan. Yet the court stopped short of ordering a specific solution, emphasizing that such a decision would exceed its judicial powers.

After remand, HUD came back with a 200-page study of alternative means of increasing the low-income units in the area. It had examined nine other sites which could be converted to low-income units, and despite the warning of the court of appeals, concluded that none were preferable to Site 30. The leading contender, Site 9, was found to be "very appropriate" and indeed "superior" when viewed solely from an environmental standpoint. Nevertheless, a shift to Site 9 might have added two years to the construction schedule. Because of the adverse social, economic, and other risks associated with this alternative, HUD rejected it. The trial judge, after reciting the findings of the study in great detail, declared it impressive in its exhaustiveness and found it to demonstrate that the agency had carefully weighed and sifted the extensive data.³⁷ He declared HUD to have complied fully with NEPA and lifted the injunction against the project.

Once again, the court of appeals was of a different view.³⁸ It also reviewed HUD's study in detail and quoted it at some length with respect to the social and environmental impacts of adhering to the original project plan. Significantly, the court never faulted the study itself; its objection was with the outcome of the ultimate decision. Running up the flag of the "arbitrary and capricious" test under the APA, the court then turned to § 101 of NEPA for "the substantive standards necessary to review the merits of agency decisions under the APA." Focusing on Congress' stated objective of "fulfill[ing] the responsibilities of each generation as trustee of the environment [10 ELR 10043] for each succeeding generation … ," it found HUD to have violated this substantive obligation by opting for an alternative that would have had the effect of concentrating the area's low-income residents.³⁹ It also ruled that the agency had neglected its duties under the 1968 Fair Housing Act, which includes economic integration among the official objectives of federal housing programs.

The key decision for the project planners had pitted a two-year delay in the project against the adverse social effects of building one more low-income building amidst a group of several others. Because HUD had chosen to accept these social harms over the risk of delay, the court found it "quite evident that delay (outranking all other environmental factors) was a paramount factor in HUD's decision."⁴⁰ Not only was it error to make delay a paramount factor, the court ruled, it was error to heed it at all. In fact, HUD's duty was to give adverse environmental and social effects "determinative" weight; delay was an entirely "impermissible" factor in the decisional equation. Significantly, although the court of appeals disagreed with the agency's balancing of the various considerations, it never explicitly reversed the district court's conclusion that the decision to convert Site 30 was not arbitrary and capricious.

Finally, apparently to eliminate any doubts as to the strength or nature of the court's views on the matter, it stated with emphasis "what [was] not to be done, namely, the construction of a high-rise apartment building exclusively for low-income families on Site 30." The court's opinion was that such a decision would not lead to "the integration contemplated by NEPA."⁴¹

The Supreme Court found the ruling to be so patently erroneous that it declined to entertain oral argument in the case. In Strycker's Bay Neighborhood Council, Inc. v. Karlen⁴² it overruled the court of appeals' decision in a cursory, per curiam opinion all but two paragraphs of which summarized the history of the litigation. Hitting on a favorite theme, that courts are not to substitute their views on discretionary matters for those of agency experts,⁴³ the Court implied that the Second Circuit had violated this stricture when setting the priority to be given environmental considerations vis-a-vis the possibility of delay in completing the urban renewal project. The Court made it clear that NEPA does not require agencies to attach overriding importance to the environmental implications of proposed actions. Correspondingly, questions of construction delay are legitimate and need not be deemphasized because of NEPA.

The key concept in the Strycker's Bay decision is embodied in the term "consideration." The court noted that both of the lower courts were of the view that HUD had at least "considered" the environmental consequences of the proposed action. In this finding the Supreme Court concurred, and added that this was the end of the analysis because "NEPA requires no more." The Court suggested that further inquiry might be appropriate if there were reason to believe that HUD's decision had been arbitrary and capricious and thus presumably reversible under the APA. It observed, however, that this had not been the conclusion below and declined to pursue it further.

Justice Marshall's dissent,⁴⁴ at least on its face, was from the Court's refusal to schedule argument in the case rather than its ruling on the merits. Nevertheless, the Justice was quite evidently troubled by what he viewed as indications in the record that HUD had abandoned the goal of integrated housing in order to expedite business as usual. Characterizing the Second Circuit's opinion as having found the agency's decision to be arbitrary and capricious, he opined that adequate review of that decision required plenary argument. Nothing in the dissent, however, espouses that decisions under NEPA may be judicially invalidated unless arbitrary under the Overton Park standard.

Discussion

Until it was overturned, the Second Circuit's decision in Karlen v. Harris stood as the high water mark among the "substantive NEPA cases." It is apparently the first and only time in which a court has enjoined an agency from taking a certain course of action on the ground that it would conflict with § 101's goals of environmental protection. Even more startling it that the court halted the project for failing to effect "the integration contemplated by NEPA"; it thus appeared to attribute to the drafters of the statute an affirmative sociological objective. Moreover, the court's flat prohibition against the use of Site 30 was obviously a "substitution of judicial for administrative judgment."

The Second Circuit's opinion was notable in two other respects. Though it declined to articulate the legal standard on the basis of which it reversed the agency decision, whatever standard it had in mind was quite clearly less forgiving than the arbitrary and capricious test. It demonstrated no deference to the agency's judgment. Second, there appears to be little evidence that HUD had in fact given environmental factors short shrift in reaching its decision; it simply found them to be outweighed by another valid factor — the need for additional low-income housing.⁴⁵ The Second Circuit, however, wielded NEPA not to restore environmental considerations to a position of equality relative to other agency objectives, but to elevate them to a position of preeminence to the total elimination of other project goals. This is a strained reading of the Act that is supported neither by the statutory language⁴⁶ nor the regulations of the Council on Environmental Quality.⁴⁷

[10 ELR 10044]

It is understandable, therefore, that the Supreme Court would view the lower court's ruling as an aberration and dispose of it summarily. Though the legal essence of the opinion consists of only seven sentences, the decision is important for what it says both explicitly and implicitly.

First, the Court has enshrined the term "consideration" as the unadorned benchmark of the agencies' duty to protect environmental values under NEPA. Yet while agencies must consider environmental factors, they are not obligated to give them special treatment. It is worth noting briefly that this is far from a landmark ruling.The same language was used to describe NEPA's substantive mandate by both the D.C. Circuit in Calvert Cliffs⁴⁸ and the Eighth Circuit in the Gillham Dam decision.⁴⁹ Unfortunately, little has been done to clarify the meaning of this standard in the intervening nine years.

The factual setting in Strycker's Bay also bears significantly on the implications of the result. At issue was an action the environmental effects of which were exclusively socioeconomic and insignificant for purposes of § 102(2)(C). The Court has thus ruled, at least by implication, that projects affecting the cultural and social environment are fully subject to § 102(2)(E), a statement that cannot be made with respect to § 102(2)(C).⁵⁰ Strycker's Bay also reaffirms the vitality of § 102(2)(E) with respect to relatively insignificant federal actions.

Finally, the Court's opinion is notable as its first attempt, albeit halting, to interpret NEPA's substantive commands. Even though the Court used only one word to do so — "consideration" — it has at least confirmed that agencies must do more than conduct "butterfly counts" and circulate "telephone books" for public comment. This view of the Act, though it represents an advance of sorts over the cryptic statement in Vermont Yankee that NEPA's commands are "essentially procedural," is well established in the decisions of the lower courts and will not lead a future court to overturn on environmental grounds an agency decision it would otherwise have sustained. By the same token, however, Strycker's Bay will not prove a shield with which agencies may fend off charges that they have unnecessarily sacrificed environmental values in favor of routine agency objectives.

1. 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009.

2. See Sax, The (Unhappy) Truth About NEPA, 26 OKLA. L. REV. 239, 248 (1973). See also Carpenter, The Scientific Basis of NEPA — Is It Adequate?, 6 ELR 50015, 50027-28 (1976); Robie, Recognition of Substantive Rights Under NEPA, 8 NAT. RESOURCES J. 387, 436 (1974); NOTE, Substance and Procedure in the Construction of the National Environmental Policy Act, 6 U. MICH. J.L. REF. 491, 509, 510 (1973).

3. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY 1978 at 409. But see Karlen v. Harris, 590 F.2d 39, 9 ELR 20001 (2d Cir. 1978), discussed infra.

4. See, for example, § 7 of the Endangered Species Act, 16 U.S.C. § 1536, ELR STAT. & REG. 41830, which forbids federal agencies from taking actions likely to jeopardize the existence or habitat of an endangered species, unless granted a special exemption. See also the Michigan Environmental Protection Act, MICH. COMP. LAWS ANN. §§ 691.1201-691.1207 (Supp. 1976), ELR STAT. & REG. 43001, which, like several state laws patterned upon it, establishes a presumption against the legality of any private or public action likely to pollute, impair, or destroy the air, water, other natural resources, or the public trust therein.

5. 435 U.S. 519, 8 ELR 20288 (1978).

6. 435 U.S. at 558, 8 ELR at 20297 (1978).

7. 48 U.S.L.W. 3433, 10 ELR 20079 (Jan. 7, 1980).

8. Karlen v. Harris, 590 F.2d 39, 44, 9 ELR 20001, 20003 (2d Cir. 1978).

9. 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

10. Section 2 provides:

The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.

42 U.S.C. § 4321, ELR STAT. & REG. 41009.

11. 42 U.S.C. § 4331(b), ELR STAT. & REG. 41009.

12. 42 U.S.C. § 4332(1), ELR STAT. & REG. 41010.

13. 42 U.S.C. § 4333, ELR STAT. & REG. 41010.

14. NEPA was conceived principally as a statement of national policy; the procedural requirements of § 102(2)(C) were added later in the legislative process, much as an afterthought, and their importance was drastically underestimated. See F. ANDERSON, NEPA IN THE COURTS 4-13 (1973). See also 115 CONG. REC. 29087 (1969) (remarks of Sen. Jackson) cited in Environmental Defense Fund v. Corps of Engineers, 470 F.2d 289, 298 n.13, 2 ELR 20740, 20744 n.13 (8th Cir. 1972).

15. See, e.g., Morningside-Lenox Park Ass'n v. Volpe, 334 F. Supp. 132, 1 ELR 20629 (N.D. Ga. 1971); National Helium Corp. v. Morton, 326 F. Supp. 151, 1 ELR 20478 (D. Kan. 1971); Environmental Defense Fund v. Hardin, 325 F. Supp. 1401, 1 ELR 20207 (D.D.C. 1971); Environmental Defense Fund v. Corps of Engineers (Gillham Dam), 325 F. Supp. 728, 1 ELR 20130 (E.D. Ark. 1971); Ely v. Velde, 321 F. Supp. 1088, 1 ELR 20082 (E.D. Va. 1971); Bucklein v. Volpe, __ F. Supp. __, 1 ELR 20043 (N.D. Cal. 1970); Brooks v. Volpe, 319 F. Supp. 90, 1 ELR 20045 (W.D. Wash. 1970).

16. See, e.g., EDF v. Corps of Engineers, 325 F. Supp. 728, 755, 1 ELR 20130, 20140 (E.D. Ark. 1971). One commentator has noted that § 101(c) of NEPA, which provides "that each person should enjoy a healthful environment," is actually a watered-down version of a precursor that would have recognized that "each person has a fundamental and inalienable right to a healthful environment." Evidently this change was made to avoid creating court-enforceable rights. F. ANDERSON, NEPA IN THE COURTS 5-6 (1973).

17. 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971).

18. 449 F.2d at 1115, 1 ELR at 20349.

19. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-414, 1 ELR 20110, 20112 (1971), decided four months prior to the decision in Calvert Cliffs in which the Supreme Court declared that the standard of judicial review of informal agency decision making was the "arbitrary and capricious" standard set out in the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), ELR STAT. & REG. 41005. The Court added that an adjunct to this test was the question whether there had been a "clear error of judgment." Id.

20. 470 F.2d 289, 2 ELR 20740 (8th Cir. 1972).

21. 470 F.2d at 298, 2 ELR at 20744.

22. According to the court, it was required to inquire as to whether the agency failed to "consider all relevant factors," whether the final decision represents a "clear error of judgment," whether the decision was based on a "good faith consideration" of environmental factors, and whether the Calvert Cliffs standard of "clearly insufficient weighting of environmental values" has been met. 470 F.2d at 300, 2 ELR at 20744.

23. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971).

24. See Natural Resources Defense Council, Inc. v. Securities and Exchange Comm'n, 606 F.2d 1031, 9 ELR 20367 (D.C. Cir. 1979); Conservation Council of North Carolina v. Froehlke, 591 F.2d 1339, 9 ELR 20105 (4th Cir. 1979); Karlen v. Harris, 590 F.2d 39, 9 ELR 20001 (2d Cir. 1978), rev'd sub nom. Strycker's Bay Neighborhood Council v. Karlen, 48 U.S.L.W. 3433, 10 ELR 20079 (1980); Jackson County v. Jones, 571 F.2d 1004, 8 ELR 20300 (8th Cir. 1978); Environmental Defense Fund v. Tennessee Valley Authority, 492 F.2d 466, 4 ELR 20225 (6th Cir. 1974), aff'g per curiam, 371 F. Supp. 1004, 4 ELR 20120 (E.D. Tenn. 1973); Sierra Club v. Froehlke, 486 F.2d 946, 3 ELR 20823 (7th Cir. 1973); Silva v. Lynn, 482 F.2d 1282, 3 ELR 20698 (1st Cir. 1973).

25. Compare Lathan v. Brinegar, 506 F.2d 677, 4 ELR 20802 (9th Cir. 1974) and Pizitz v. Volpe, 467 F.2d 208, 2 ELR 20379, as modified, 467 F.2d 208, 2 ELR 20635 (5th Cir. 1972) with Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 8 ELR 20065 (9th Cir. 1977) and Environmental Defense Fund v. Corps of Engineers (Tennessee-Tombigbee Waterway), 492 F.2d 1123, 4 ELR 20329 (5th Cir. 1974).

26. National Helium Corp. v. Morton, 455 F.2d 650, 1 ELR 20478 (10th Cir. 1971).

27. Andrus v. Sierra Club, 99 S. Ct. 2335, 60 L. Ed 2d 943, 947, 9 ELR 20390-91 (1979).

28. Id.

29. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558, 8 ELR 20288, 20297 (1978) (emphasis added).

30. See Note 3, supra.

31. See 42 U.S.C. §§ 3601 and 3608.

32. Trinity Episcopal School Corp. v. Romney, 387 F. Supp. 1044 (S.D.N.Y. 1974).

33. 42 U.S.C. § 4332(2)(E), ELR STAT. & REG. 41010. At the time the suit was instituted the section was designated 102(2)(D) and codified at 42 U.S.C. § 4332(2)(D).

34. Trinity Episcopal School Corp. v. Romney, 523 F.2d 88, 5 ELR 20497 (2d Cir. 1975).

35. See W. RODGERS, ENVIRONMENTAL LAW § 7.4 at 724, § 7.9 at 795-797 (1977) and authorities cited therein.

36. 523 F.2d at 94, 5 ELR at 20500.

37. Trinity Episcopal School Corp. v. Harris, 445 F. Supp. 204, 8 ELR 20394 (S.D.N.Y. 1978).

38. Karlen v. Harris, 590 F.2d 39, 9 ELR 20001 (2d Cir. 1978).

39. Throughout this litigation the courts have considered racial, cultural, and socioeconomic effects as environmental effects for purposes of NEPA. See Hanly v. Mitchell (Hanly I), 460 F.2d 640, 647, 2 ELR 20216, 20220 (2d Cir.), cert. denied, 409 U.S. 990 (1972). See also 40 C.F.R. § 1508.14.

40. 590 F.2d at 44, 9 ELR at 20003 (emphasis added).

41. 590 F.2d at 43, 9 ELR at 20002.

42. 48 U.S.L.W. 3433, 10 ELR 20079 (Jan. 7, 1980).

43. See, e.g., Kleppe v. Sierra Club, 429 U.S. 390, 410 n.21, 6 ELR 20532, 20537 n.21 (1976).

44. 48 U.S.L.W. at 3434, 10 ELR at 20080.

45. Taking for granted HUD's statutory obligation to assist in the creation of integrated housing, that obligation must also favor the avoidance of delay once a need for housing has been determined. It is thus difficult to see how the court could have declared delay to be an "impermissible" factor.

46. The Act states quite clearly that environmental protection is a goal to be pursued "consistent with other essential considerations of national policy." 42 U.S.C. § 4331(b). See also 42 U.S.C. §§ 4331(a) and 4332(2)(B).

47. See 40 C.F.R. §§ 1500.2(f), 1501.2(b), 1505.2(b).

48. Perhaps the greatest importance of NEPA is to require … agencies to consider environmental issues just as they consider other matters within their mandates.

449 F.2d 1109, 1112, 1 ELR at 20346, 30347 (emphasis in original).

49. The unequivocal intent of NEPA is to require agencies to consider and give effect to the environmental goals set forth in the Act.

470 F.2d 289, 298, 2 ELR 20740, 20744.

50. See Image of Greater San Antonio v. Brown, 570 F.2d 517, 8 ELR 20324 (5th Cir. 1978) (socioeconomic effects, when unaccompanied by direct physical effects on the natural environment, cannot rise to a level of "significance" requiring preparation of an EIS).