Save Our Ten Acres v. Kreger

Civil No. 7080-72-T (S.D. Ala. April 10, 1972)

The General Services Administration did not abuse its discretion in finding that the construction of a new Federal office building in downtown Mobile would not have substantial enough an adverse effect on the environment to warrant the preparation of a detailed environmental impact statement. Plaintiffs' motion for a preliminary injunction is denied.

Counsel for Plaintiffs
Alex Boskoff
615 Perpetual Bldg.
1111 E St., N.W.
Washington, D.C. 20004

Counsel for Defendants
William Cohen
Dept. of Justice
Washington, D.C. 20530

Charles White-Spunner United States Attorney
Mobile, Alabama 36602

[2 ELR 20305]

Thomas, J.

This is a suit filed by an unincorporated association known as "Save Our Ten Acres" seeking to enjoin and restrain the General Services Administration (hereinafter GSA), a federal agency, from carrying into effect its present plan to construct and erect a new Federal office building in the downtown business district in the City of Mobile. The membership of the plaintiff organization consists entirely of persons employed by the United States Army Corps of Engineers at its office in Mobile, Alabama. The thrust of the suit is a charge by the plaintiffs that the GAS has failed or refused to prepare and publicize an "environmental impact" study alleged to be required by Section 102 (2) (c) of the National Environmental Policy Act of 1969, Title 42, U.S.C.A., Section 4331, et seq., hereafter referred to as NEPA.

The construction of a new Federal office building in the Mobile area has been under study since 1964. In that year, a detailed site investigation report was prepared by GSA in an effort to determine which of at least three proposed or available land sites in the Mobile city area would be best for the construction of the new office building. (See GSA Attachment "C", Defendants' Exhibit #5). The three sites considered in the 1964 investigation consisted of real property owned entirely or substantially by the United States Government.¹ One of the proposed sites (Site #1) is located in the downtown central business district in the City of Mobile. In 1964, Site #1 was occupied by a United States Post [2 ELR 20306] Office Building. This site is contiguous to land whereon there presently exists the United States Courthouse and Customhouse, and, when the decision was reached in February of 1965 to use this site for the erection of the new Federal office building, the old Federal Post Office Building was torn down to clear the land. (See GSA Attachment "C", Exhibit E therein, Defendants' Exhibit #5).

The two remaining available sites (Sites #2 and #3) are located approximately five miles from the downtown business district. Both of these sites are situated on land which is presently occupied by the United States Army Corps of Engineers. The Engineers reservation, as it is sometimes referred to, covers an area totaling some 10.67 acres. The reason two sites were considered on this acreage is because the reservation fronts on two major traffic arteries. (See GSA Attachment "C", Exhibit E therein, Defendants' Exhibit #5).

The prospectus for said Federal office building prepared and submitted by the GSA to the Committees on Public Works of the United States Senate and House of Representatives, as required by the Public Buildings Act of 1959, 40 U.S.C.A., Sections 601, 606 (a), was approved by the said committees in 1964 and provided for erection of a Federal office building in the City of Mobile which would have for its primary purpose the providing of office space for the Mobile District Office of the Corps of Engineers. Subsequent to the approval of the building prospectus, the GSA requested from the Congress funds for the construction of the aforesaid Federal office building, and, by Public Law 92-49, 84 Stat. 108, approved July 9, 1971, funds in the sum of $8,339,000 were appropriated for the construction of the new office building.

Of the approximate 950 Federal employees intended to occupy the working spaces in the new office building, more than 80% of these will be employees of the Mobile District Office of the Corps of Engineers. The remaining 20% employee compliment will consist of persons employed by the other various federal agencies intended to be housed in the new office building. As planned, the new office building will be nine stories in height, with the ninth floor constituting space allotted for the building operations systems. The proposed building will contain about 225,580 net assignable square feet and will have a gross area of 311,680 square feet.

The nature of the task requested of the court by the plaintiffs requires some historical back-tracking to properly determine if the relief prayed for should be granted. The initial prospectus submitted to and approved by the Committees on Public Works of the United States Congress in 1964 dealt with and centered entirely on the erection of the new Federal Office Building on the downtown site (Site #1). The prospectus, as mentioned earlier, was approved in April of 1964. Subsequent to the approval, the Commissioner of the Public Buildings Service brought to the attention of the Regional Director of the GSA that both the officials of the City of Mobile and the employees of the Mobile District Office of the Corps of Engineers had requested that alternate sites be considered for the construction of the new building. The city officials requested that consideration be given to locating the new building in a downtown urban renewal project. After the Regional Director of the GSA conferred with the city officials concerning their request, a report and prospectus was caused to be prepared on the urban renewal site, the result of which was the withdrawal of the request for the urban renewal location of the new building.The report indicated that the city officials preferred the Site #1 location if the urban renewal location should prove unfavorable. The Engineer employees requested that the 10.67 acre Corps reservation be considered. Due to these requests, the Commissioner of Public Buildings Services directed the Regional Administrator of GSA to draw and prepare a site investigation report covering the downtown site and the Engineers reservation site. The site investigation report is now contained in the GSA Attachment "C" and is the 1964 report mentioned earlier in this opinion. As also mentioned above, in early 1965 it was made public that the downtown site (Site #1) had been chosen for the new building.

In 1969, the United States Congress passed the National Environmental Policy Act which became effective January 1, 1970. This Act requires all federal agencies to consider environmental values in their spheres of operation, and it prescribes certain procedures to be followed to insure that such values are in fact fully respected. In "furtherance of the purpose and policy" of the Act, the President issued Executive Order No. 11514, 35 F.R. 4247, on March 5, 1970. That order, among other things, directed federal agencies to "initiate measures needed to direct their policies, plans and programs so as to meet national environmental goals," and instructed the Council on Environmental Quality (CEQ), created by the Act, to issue guidelines to federal agencies for the preparation of environmental impact statements required by Section 102 (2) (c) of the Act.

Pursuant to the President's Order, the GSA promulgated PBS 1095.1 outlining procedures for implementing Section 102 (2) (c) of NEPA. (See GSA Attachment "B", Defendants' Exhibit #4). Procedurally, PBS 1095.1 requires, as a general principle, that the responsible official provide an environmental statement in accordance with Section 102 (2) (c) when he concludes that a Federal action will have a significant (by itself or cumulatively) impact on the environment. Dollar value alone was not to be a sufficient indicator of the required statement.

In accordance with the GSA PBS 1095.1 directive which was issued December 11, 1970, a preliminary environmental statement was prepared for the proposed Federal office building on July 12, 1971. (See GSA Attachment "A", Exhibit F therein, Defendants' Exhibit #3). The preliminary environmental statement prepared followed to the letter the required content of such a statement as set forth in PBS 1095.1 and resulted in a finding that a detailed environmental impact statement need not be developed with respect to the decision to build the new building.

The Complaint alleges that the proposed building is a major Federal action significantly affecting the quality of human environment, thus requiring the defendant to take certain preliminary steps before beginning the construction. Those steps are specified in the National Environmental Policy Act of 1969, Section 102(2)(c), 42 U.S.C. Section 4331, Et seq. ("NEPA").

It must be conceded that the defendants have not prepared the detailed environmental statement nor have they taken the other steps called for by Section 102(2)(c). On the contrary, the defendants argue that the environmental impact statement was not required in this case because although the building is perhaps a major Federal action within the meaning of the statute, it does not significantly affect the quality of the human environment, which finding they contend is a condition precedent to any requirement to preparing a 102 (2) (c) statement. While the plaintiffs have provided the Court with a list of so-called reasons why the building will have a significant adverse environmental impact, their so-called reasons do not appear to the Court to be legitimate environmental factors, but on the contrary, motives personal to the plaintiffs.

It is of some significance that no ecological group has joined with the plaintiffs or sought to intervene in this case. Defendants' Exhibit 4 is a certified true copy of GSA Order PBS 1095.1. In accordance with the terms of PBS 1095.1, the study, as shown by Defendants' Exhibit 3, was conducted, and, pursuant to Section 3 (b) thereof, it was concluded by J. E. Smith, the Regional Director, Public Buildings Service, that the building in question would have no adverse affect on the environment and he specifically found "a detailed environmental impact statement need not be developed prior to GSA's decision and accompany the proposal through the GSA review process." Having made those conclusions, he was not required under GSA Order PBS 1095.1, Para. 3 (b) (which had been promulgated by GSA to implement Section 102 (2) (c) of NEPA) to provide an environmental statement.

The plaintiffs have argued throughout that the defendants have violated NEPA, Para. 102 (2) (c) since they have not prepared an environmental impact statement or performed the other activities required of an agency proposing a major federal action which will significantly affect the quality of human environment. The plain meaning of the statute makes it clear that there must be a determination that a particular federal action is both major and will significantly affect the environment prior to the requirement of the environmental statement. It is clear that NEPA "does not require an environmental impact statement in every case in which a federal agency plans or finances a project." [2 ELR 20307] Echo Park Residence Committee v. Romney, __ F. Supp. __, C.A. 71-340 (C.D. Calif. 1971).

"Statements are required by the Act if the proposed project is major and if it will have a significant affect upon the quality of the environment.", Goose Hollow Foot Hills League v. Romney, 334 F. Supp. 877. "Thus, if it be found that the project is major, as this one perhaps is, then the only question is whether . . . (the agency) acted arbitrarily, in determining that the project would not have a significant affect upon the quality of human environment." Goose Hollow Foothills League v. Romney, supra.

Although the guidelines of the Council on environment quality, paragraph 5 (b), 36 Federal Regulation 7724-7729 (April 23, 1971) suggests that an environmental statement pursuant to NEPA, para 102 (2)(c), 42 U.S.C., Sec. 4332, be prepared for all "proposed action the environmental impact of which is likely to be highly controversial", these guidelines are advisory only. Greene County Planning Board v. Federal Power Commission at 1410 Docket Nos. 71-1991 and 71-1995, Second Circuit denied, January 17, 1972. Given the limited review this Court may take of the defendants decision, which is whether the action of the defendants appear to have been "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law," 5 U.S.C., Para. 706, Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, there is clearly a sufficient record in Defendants' Exhibits 3, 4, and 6 to demonstrate that the agency's decision was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. While it is an unnecessary finding, it would even appear that there is substantial evidence to support the conclusion. Thus, it is clear that plaintiffs cannot show a likelihood of success on the merits, an essential prerequisite to the issue of preliminary injunction. Citizens Commission for the Hudson Valley v. Volpe, 297 F. Supp. 804.

I therefore find that all of the environmental factors relevant to the construction of the building in question have been considered by the proper authorities and that the conclusion that the building will not have a significant adverse impact on the environment is not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.

For the foregoing reasons, the plaintiffs' motion for a preliminary injunction is in all respects DENIED. This opinion and the reasons set out therein make it unnecessary for a further hearing on a permanent injunction and plaintiffs' motion for a permanent injunction has been considered by the Court and is also DENIED in all respects.

In the hearing on these motions it was the Government's position that neitherthe plaintiffs nor the defendants were entitled to put on any testimony or file any exhibits and that the matter should be decided purely on the record which was introduced by the defendants. The plaintiffs insisted on introducing 13 affidavits which were attached to the plaintiffs' complaint as well as introducing testimony of two witnesses. The Court then felt, and feels now, that the Government's position was correct, but allowed the introduction of the testimony through an over abundance of caution.

1. Since 1964, all of land sites have become the exclusive property of the United States Government through purchase agreements entered into with the then private owners.