11 ELR 21056 | Environmental Law Reporter | copyright © 1981 | All rights reserved
Committee for Charter Protection for Parks v. WeinbergerNo. 80-0009-E (S.D. Cal. September 2, 1981)
The court denies a motion for a preliminary injunction against the Navy's selecton of a parkland site for construction of a hospital. Under the Ninth Circuit Court of Appeal's tripartite test for deciding preliminary injunction requests in cases challenging compliance with the National Environmental Policy Act (NEPA) the court finds first that a strong likelihood of success on the merits was now shown. The court rejects a claim that a supplemental environmental impact statement (SEIS), prepared after discovery of an earthquake fault at the site, was not motivated by a desire to justify a previously made decision and thus defective. The SEIS shows that there has been a good faith attempt to identify and discuss all foreseeable environmental consequences. The court also holds that the Navy's report to Congress expressing a tentative selection of the site prior to completion of the SEIS was not a premature "final decision" prejudging the outcome of the NEPA process. An agency may establish a preference prior to completion of the final EIS, and may properly make a tentative decision. In addition, even if the Navy's findings under Executive Order No. 12072, which requires consideration of urban areas in the planning and location of federal facilities, were subject to a private right of action, they would not be overturned since the appropriate considerations were fairly addressed. After considering the balance of irreparable harms and the public interest, the court holds that a permanent loss of the parkland has not been shown to outweigh a delay in availability of the hospital's service to a population of 400,000 people and a delay-caused escalation of $20,000 a day in the hospital's construction cost.
[The denial of an earlier motion for a preliminary injunction against the project is reported at 10 ELR 20246 — Ed.]
Counsel for Plaintiffs
Judith M. Copeland
Garfield, Schwartz & Copeland
360 Bank of Cal. Plaza, 110 W. A St., San Diego CA 92101
Counsel for Defendants
Ronald G. Gluck, Gary W. Wilburn
Land and Natural Resources Division
Department of Justice, Washington DC 20530
[11 ELR 21056]
The original complaint in this action was filed on January 3, 1980. Plaintiffs' first preliminary injunction motion, to enjoin soil testing, was denied on February 11, 1980. Thereafter, an investigation of the Florida Canyon site revealed an earthquake fault at the site. The Navy abandoned its prior plans and continued investigations, redesigning the Florida Canyon plans and investigating Helix Heights as an alternative site. On December 5, 1980, the Secretary of the Navy gave a report to Congress in which he expressed a tentative selection of the Florida Canyon site, but also stated that reports on the tentative sites and justifications for the decision would be required, along with a Supplemental Environmental Impact Statement (SEIS) on either site. In March 1981 a draft SEIS was prepared and in June 1981 the final SEIS was prepared. On July 14, 1981 the Secretary of the Navy concluded that Florida Canyon will be the site for the new Navy hospital. Plaintiffs have now filed this motion for a preliminaryinjunction, contending the selection process was conducted in bad faith, in violation of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., and in violation of Executive Order No. 12072 (1978).
Legal Standard for Preliminary Injunction Requests Based on NEPA Challenges
The traditional Ninth Circuit standard for issuance of a preliminary injunction requires a showing of either 1) probable success on the merits and possible irreparable injury or 2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief. Agurre v. Chula Vista Sanitary Service, 542 F.2d 779, 781 (9th Cir. 1976). The Ninth Circuit has employed these factors in a slightly different manner when deciding preliminary injunction requests based on NEPA or other environmental acts. In these cases, the Ninth Circuit has consistently approved a tripartite test for determining the propriety of injunctive relief:
1) Have the movants established a strong likelihood of success on the merits?
2) Does the balance of irreparable harm favor the movants?
3) Does the public interest favor granting the injunction?
National Wildlife Federation v. Adams, 629 F.2d 587, 590 [[11 ELR 21057]10 ELR 20959] (9th Cir. 1980); Warm Springs Dam Task Force v. Gribble, 565 F.2d 549, 551 [8 ELR 20065] (9th Cir. 1977).
Discussion of Merits
Initially, the court notes that plaintiffs' motion requests that the court consider all documents and declarations filed in this case, including two recently filed declarations. The general rule is that judicial review of administrative actions such as in this case are confined to the administrative record. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 [8 ELR 20288] (1978); Camp v. Pitts, 411 U.S. 138 (1973). The exception to this rule is found where the administrative record is seriously lacking, such as where the record fails to show the basis for the decision and the complaining parties have had no opportunity for input. Such circumstances do not exist in the instant case. However, the court finds that these documents and declarations, even if considered, would be insufficient to alter the court's decision under the following standards and analysis.
1. Navy Compliance With NEPA
In reviewing a NEPA decision, the role of the reviewing court is essentially one of determining whether the administrative agency in question has taken a "hard look" at the environmental consequences of a decision; the courts may not set aside a decision because they differ with the result reached. Vermont Yankee Nuclear Power Corp. v. NRDC, supra, at 558; Kleppe v. Sierra Club, 427 U.S. 390, 410 [6 ELR 20532] (1976). Plaintiffs suspect that the final decision may have been affected by the prior decisions and expenditures. However, plaintiffs fail to offer any specific challenges or critiques of the procedures of draft SEIS or final SEIS (which incorporates the draft SEIS). At the time the earthquake fault was discovered, the Navy may have had a predisposition toward the Florida Canyon site. However, a review of the SEIS, to which this court is limited, evidences a full and fair review of foreseeable consequences. To restate, plaintiffs charge defendants' SEIS was motivated by the desire to justify a previously made decision and the document is thus defective. Plaintiffs specifically point to the consideration of traffic, noise and air quality. However, there is nothing in the allegations or in the two rather lengthy SEIS volumes to show lack of compliance with NEPA procedures. The Ninth Circuit has stated:
[T]he test of EIS adequacy is pragmatic and the document will be examined to see if there has been a good faith attempt to identify and to discuss all foreseeable environmental consequences.
Warm springs Dam Task Force v. Gribble, supra, at 552. The record convinces the court defendants have met this test.
2. The Secretary of the Navy's Substantive Decision: In Bad Faith?
Plaintiffs argue that the Secretary of the Navy's decision to locate in Florida Canyon is in bad faith and tainted by earlier decisions. However, there is no evidence within the record to suggest this was true; the contention is merely inferential. The Secretary reached a decision on a controversial issue, and the personal bias he may have had calls for speculation which is beyond the scope of the court's review.
Furthermore, a major premise of plaintiffs' argument seems to be that the Congressional Report of December 5, 1980 was a "final decision" made prematurely. As discussed above, "final decision" is an incorrect interpretation of the report. Plaintiffs characterize the report as a "decision to build" and an "absolute decision," implying that all else was superfluity. The report indicates a preference for the Florida Canyon site, but includes the statement that reports on tentative sites and justifications for the actual decision will be required, as well as an SEIS on either site. The case law shows an agency may establish a preference prior to the final EIS, and there is nothing irregular about the making of a tentative decision. Concerned About Trident v. Schlesinger, 400 F. Supp. 454, 491 [6 ELR 20047] (D.D.C. 1975).
3. Executive Order No. 12072
Executive Order No. 12072 (1978) is an order which requires consideration of urban areas in the planning and location of federal facilities. Plaintiffs claim defendants did not follow the mandates of this order. As defendants point out, there is nothing to indicate there is a private right of action to enforce this order and no court has so held. Assuming there was such a right of action, the SEIS specifically mentions and addreses the mandate of the order. This court does not believe defendants' findings are subject to challenge so long as the considerations are fairly addressed.
Public Interest and Balance of Irreparable Harms
In considering the public interest and potential irreparable harms, the court is cognizant that the use of the Florida Canyon site implies that this segment of parkland "will be forever lost." On the other hand, defendants estimate there is a service population of 400,000 people who will be denied the hospital's service during any period of delay. Defendants also point out that the delay translates to a cost escalation factor of about $20,000 per day. All of the above concerns are substantial. Weighing of these factors is difficult and presents close questions. However, plaintiff, which by law must shoulder the burden in this case, has failed to meet that burden on either the second or third aspects of the test.
Application of the tripartite test set out above leads this court to the conclusion that the preliminary injunction should be denied. Plaintiffs' lack of a case on the merits is the decisive factor in reaching this conclusion, along with plaintiffs' failure to show that the balance of irreparable harms or public interest favor the entry of preliminary relief.
11 ELR 21056 | Environmental Law Reporter | copyright © 1981 | All rights reserved