L.S.S. Leasing Corp. v. United States General Services Administration

No. 83 Civ. 6952 (GLG) (579 F. Supp. 1565, 20 ERC 1581) (S.D.N.Y. February 16, 1984)

ELR Digest

Because plaintiffs have failed to show the possibility of irreparable harm or the probability that defendants violated the National Environmental Policy Act (NEPA) and other federal laws in the planning of a new federal office building in Queens, New York, the court denies plaintiffs a preliminary injunction. The federal government proposes to build a new office building to house Social Security Administration workers presently in four separate buildings. Plaintiffs, landlords and neighbors of the presently used buildings, seek an injunction against the project, claiming that the environmental impact statement (EIS) for the project violates NEPA; that the project violates Executive Order (E.O.) 12411, which requires agencies to reduce the amount of work space per employee; and that the project violates the Public Buildings Act (PBA).

The court first rules that to merit a preliminary injunction, plaintiffs must demonstrate irreparable harm and either a likelihood of success on the merits or both serious questions going to the merits and a balance of harms decidedly favoring plaintiffs. The court holds that because an injunction delaying the project would harm the public's interest by increasing the project's cost, plaintiffs must meet the more stringent "likelihood of success" test.

The court holds that plaintiffs have failed to show that the project will cause them irreparable harm if not stopped immediately. The present buildings will not be vacated for at least two and a half years. Allowing the project to proceed will not affect the plaintiffs directly and immediately. No evidence suggests the move will hurt the neighborhood.

Turning to the merits, the court first holds that the EIS is adequate. The court notes that the purpose of the NEPA process is to insure a well-considered decision, and that the court's role on review is to examine whether the EIS clearly discloses all the major environmental concerns and addresses them in an appropriate and forthright manner. Applying this standard, the court holds that the EIS adequately discussed the impact of the project on the plaintiffs' neighborhood, the alternatives to construction of a new building, and the impact of the new building on its surroundings. In a footnote, the court speculates that because plaintiffs inexcusably delayed two years before challenging the EIS and because defendants would suffer undue prejudice if plaintiffs were granted relief, plaintiffs' claims against the adequacy of the EIS may be barred by laches. The court further holds that neither an alleged, but undocumented surplus of federal office space in the area nor E.O. 12411 constitute "significant new circumstances or information" requiring a supplemental EIS under the Council on Environmental Quality's NEPA regulations.

Considering the other legal challenges to the project, the court holds that plaintiffs have failed to prove that construction of the new building will cause the government to exceed the E.O. 12411 space standards for employees, either in the new building or in other federal buildings in the area. Also, the PBA does not obligate the government to continue to use the present building for federal offices, and even if it did, such obligation would not come due before the actual move.

The full text of this opinion is available from ELR (12 pp. $2.00, ELR Order No. C-1323).

Counsel for Plaintiffs
Stephen L. Kass, Robert S. Davis, Carol A. Buckler
Berle, Butzel, Kass & Case
45 Rockefeller Ctr., New York NY 10111
(212) 765-1800

Counsel for Defendants
Ralph W. Giulani, U.S. Attorney; Kathleen A. Roberts
One St. Andrews Plaza, New York NY 10007
(212) 791-0055

Patricia R. Kruger, Ass't Corp. Counsel
Municipal Bldg., 100 Church St., New York NY 10007
(212) 566-3929

Goettel, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]