Maryland National Park and Planning Commission v. Schultz

No. 255-72 (D.D.C. May 11, 1973)

The court finds that the environmental impact statement for the Consolidated Law Enforcement Training Center in Beltsville, Maryland, satisfies the procedural requirements of NEPA § 102 as a matter of law. The final impact statement, which was circulated in draft for comment by interested agencies including the plaintiffs, incorporates adverse comments in an appendix. Plaintiffs' motion for preliminary injunction, challenging the statement as "after the fact rationalization", is denied and defendant's motion for summary judgment granted; the court's function is not to review conclusions but to ensure that the statement gives full consideration to the factors embraced in § 102 of the Act.

Counsel for Plaintiff
Robert H. Levan
6600 Kenilworth Ave.
Riverdale, Maryland 20840

Counsel for Intervenor, Calverton Citizens Assoc.
Michael S. Yaroschuk
900 17th Street, N.W.
Washington, D.C. 20006

Counsel for Defendant
Arthur D. Smith
Room 2137
Department of Justice
Washington, D.C. 20530

[3 ELR 20661]

Corcoran, J.

MEMORANDUM AND ORDER

In dispute in this case is the adequacy of an environmental impact statement prepared jointly by the Department of Treasury and the General Services Administration filed pursuant to the National Environmental Policy Act (NEPA) 42 U.S.C. 4332 in connection with the proposed construction of a "Consolidated Law Enforcement Training Center" in Beltsville, Maryland. The plaintiff, Maryland NationalCapital Park and Planning Commission (herein MNCPPC) seeks a preliminary injunction against further activities in connection with the project and the government agencies have filed a cross motion for summary judgment.

The Court concludes that there are no material issues of fact in dispute, that only questions of law are presented and on those questions judgment must be granted to the defendant government agencies.¹

[3 ELR 20662]

A brief review of the history of this controversy is necessary to place the issues in perspective.

The Warren Commission Report on the assassination of President Kennedy gave impetus to proposals within the Department of the Treasury to establish a new training facility for the Secret Service to replace those then in use at the National Arboretum. The Treasury proposal recommended that the facility be located on approximately 61 acres to be transferred from the Agricultural Department's Research Center at Beltsville, Maryland, and that it consist of a training center building, outdoor firing ranges, and a motorcade training area.

In April, 1965 the House and Senate Public Works Committees approved the prospectus for the new training center and in August 1965 $117,000 was appropriated by Congress for design work, P.L. 89-128, 79 Stat. 526. Pursuant to 40 U.S.C. 71d, a master plan for the center was submitted to the National Capital Planning Commission (NCPC) and, following a favorable recommendation by plaintiff MNCPPC, NCPC approved the master plan in February, 1968. In June, 1968, $800,000 was appropriated for construction of the firing ranges, P.L. 90-350, 82 Stat. 192.

Thereafter, it was deemed expedient to develop a more comprehensive training center — one that could accommodate the training of substantially all Federal law enforcement officers, with the exception of the FBI, and which would avoid unnecessary duplication of facilities. It was proposed that this new, expanded and so-called Consolidated Center be established at the site of the still to be completed Secret Service Training Center in Beltsville.

The Consolidated Center would serve many more trainees, require a larger staff and cover 8 times as much area.

In December, 1968, NCPC approved the prospectus for the Consolidated Center and the following May the prospectus was approved by House and Senate Public Works Committees. In September, 1969, $700,000.00 was appropriated for completion of the firing ranges, and $1,000,000.00 was appropriated for designing the Consolidated Center facility, P.L. 91-74, 83 Stat. 116, 118.

Since March 2, 1970, $26,000,000.00 has been appropriated for design and construction of the Consolidated Center, P.L. 91-442, 84 Stat. 872; P.L. 92-49, 85 Stat. 108. A special training building, outdoor firing ranges and a motorcade training area are complete and in use primarily by the Secret Service. Farm buildings existing on the additional acreage transferred to the Consolidated Center are being used by the Treasury Law Enforcement School as a crowd control demonstration area. Firing ranges are also being used by cooperating law enforcement agencies.

In July, 1970, a preliminary master plan covering the Consolidated Center was submitted to the National Capital Planning Commission (NCPC). At the same time a draft impact statement was filed with the Council on Environmental Quality (CEQ) and circulated for agency comment.² In accordance with referral procedures, the master plan for the Consolidated Center was supplied to the plaintiff MNCPPC by NCPC. At this juncture, the Prince Georges County Planning Board (consisting of the Prince Georges County representatives on the MNCPPC) first expressed concern about the proposed Center. Following meetings with GSA officials in August, MNCPPC submitted unfavorable comments which were principally concerned with the lack of a long-range master plan for the Agriculture Research Center as a whole³ and possible socioeconomic effects of the Consolidated Center. In addition the Metropolitan Washington Council of Governments (COG) raised questions concerning the consistency of the planning for the Consolidated Center with prevalent concepts of development in the capital area which envision the general principle of radial corridors of commercial, residential, industrial development separated by "wedges" of undeveloped open space (the "wedges and corridors" concept), and the possible impact of the Center on the surrounding area from noise emissions and sewerage requirements.

In October 1971 NCPC, in the face of adverse comments from the plaintiff and other groups, concluded that the Consolidated Center would not adversely affect the quality of the environment in the National Capital Region and that such development was consistent with regional land planningl It accordingly approved the final master plan for the Consolidated Center. In November 1971 the Senate Public Works Committee approved the revised prospectus for the Center which had earlier been approved by the House.

In February 1972 this action was commenced by the plaintiff.

Conceding that the Impact Statement extant at that time did not meet the requirements of NEPA, the defendants halted work on the project until a new statement could be prepared. A draft statement was completed on August 1, 1972, and filed with CEQ and circulated to various federal agencies and local groups with an interest in its subject matter. After comments had been received, a final statement which incorporated and discussed most of the comments received was prepared. This statement dated November 24, 1972, was circulated for further comment to those groups and agencies that had previously commented on the draft. The distribution list was as follows:

Soil Conservation Service of the Department of Agriculture

Department of Defense

Corps of Engineers, Department of the Army

Department of Health, Education and Welfare

Department of Housing and Urban Development

Department of the Interior

Patuxent Wildlife Research Center of the Department of the Interior

National Capital Planning Commission

Department of Transportation

United States Environmental Protection Agency comments from the Department of Natural Resources and Prince George's County Planning Board of the Maryland-National Capital Park and Planning Commission

Fiscal and Planning Committee of the Prince George's County Council

Calverton Citizens Association and Oakland Citizens Association (joint communication)

Beltsville-Vansville District Citizens Association

It is this statement, dated November 24, 1972, and published after comments received from the above named agencies, that is now under attack.

III

The thrust of the plaintiff's action is that the defendants as "agencies of the United States" have failed to comply with the procedural requirements of the National Environmental Policy Act of 1970 (NEPA) 42 U.S.C. 4332 et seq.⁴

Section 4332 (C) of NEPA requires that, with respect to proposals for "major Federal actions significantly affecting the quality of the human environment," Federal officials consult with Federal agencies having expertise regarding the environmental impacts involved and that such proposals be accompanied through the agency review process by a detailed statement which sets forth the following:

(i) "the environmental impact of the proposed action;

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented;

(iii) alternatives to the proposed action;

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity;

[3 ELR 20663]

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented."

CEQ Guidelines for Federal Agencies, 36 Fed. Reg. 7724-7729 (April 23, 1971) provide for circulation of a draft statement as a mechanism to achieve appropriate consultation with Federal agencies, as well as receiving input from the public, prior to preparation of the detailed statement required by the Act.

The end to be secured by these procedures is the assurance that Federal agencies will consider environmental costs and benefits along with more traditional factors in the execution of their responsibilities. Thus NEPA "takes the major step of requiring all Federal agencies to consider values of environmental preservation in their spheres of activity, and it prescribescertain procedures to ensure that those values are in fact fully respected." Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 449 F.2d 1109, 1111 (C.A. D.C. 1971)."Congress contemplated that the Impact Statement would constitute the environmental source material for the information of the Congress as well as the Executive in connection with the making of relevant decisions, and would be available to enhance enlightenment of - and by - the public." NRDC v. Morton, 458 F.2d 827, 833 (C.A. D.C. 1971).

The function of this Court in reviewing the sufficiency of such an Impact Statement is a limited one. It is not for the Court to substitute its own judgment for that of the preparing agency.On the contrary, "[I]t's function is only to assure that the (Impact) statement sets forth the opposing scientific views, and does not take the arbitrary and impermissible approach of completely omitting from the statement, and hence from the focus that the statement was intended to provide for the deciding officials, any reference whatever to the existence of responsible scientific opinions concerning possible environmental effects." Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783, 787 (C.A. D.C. 1971). It is further clear that "So long as the officials or agencies have taken a 'hard look' at environmental consequences mandated by Congress, the Court does not seek to . . . inject itself within the area of discretion of the executive as to the choice of action to be taken." NRDC v. Morton, supra at 838.

With these principles as a guide the Court looks briefly at the impact statement and the procedures followed by defendants in preparing it. The document is on its face both complete and detailed. Source material relied upon in compiling the statement is referenced therein and in order to facilitate review and comment by interested persons it has been available for public inspection at the Center's administrative office since the circulation of the draft statement on August 1, 1972. Both plaintiff and intervenor plaintiff were given an opportunity to study and comment on the draft statement. Competing points of view are discussed in the statement and the agency's assessment, in cases of divergent views, is fully articulated.

Adverse comments, including those made by plaintiffs, have been set out, in full, in "Appendix E" to the final impact statement. In fact every opportunity was given to all interested parties to put their opinions before the official responsible for deciding whether to proceed with the project⁵ before final determination was made on January 5, 1973 to go ahead with the expansion of the Consolidated Center.⁶ It is not fatal that ". . . the decisionmaker, in order to fully comprehend the objections and arguments advanced by the plaintiffs and other who oppose the project, will have to look to the 'back pages' and appendices of the [Impact Statement]." Environmental Defense Fund v. Corps of Engineers, [2 ELR 20353] 4 ERC 1097, 1101 (E.D. Ark. 1972).

The plaintiffs have ably dissected the statement and have directed their attack to many of the conclusions reached therein and, because the conclusions are not to their liking, have suggested that the statement is in the nature of an "after the fact rationalization" rather than a good faith effort at weighing the various environmental consequences. That the plaintiffs do disagree with some of the conclusions comes as no surprise. On the contrary it would be surprising if any concerned party could concur fully in all the conclusions reached in a document comprising more than 300 pages requiring subjective assessments of each problem involved. That, however, is hardly ground to disregard the pro and con discussions in the statement of the various issues involved in the project. It is certainly not grounds for assuming that the subjective conclusions are merely after-the-fact rationalizations. In the eyes of many proponents of various points of view which have been downgraded or discarded in an impact statement that statement may well seem to be imperfect, but "[I]t is doubtful that any agency, however objective, however sincere, however well staffed, and however well financed, could come up with a perfect environmental impact statement in connection with any major project." Environmental Defense Fund v. Corps of Engineers, supra, [20355] 1101. NEPA "must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible, given the obvious, that the resources of energy and research — and time — available to meet the Nation's needs are not infinite." NRDC v. Morton, supra, 837. Otherwise the statute, which was intended to ensure the consideration of environmental consequences in the performance of government activities will become perverted into a convenient roadblock to throw in the path of any — even worthwhile — project with which a citizen disagrees.

It is not the function of this Court to review every conclusion found in a NEPA statement brought before it. Rather it suffices to ensure that the statement fairly considers the five general factors embraced in Section 4332 (2) (c): i.e.: (1) the environmental impact of the program; (2) unavoidable adverse effects; (3) alternatives; (4) relationship between short term use of the environment and maintenance and enhancement of long-term productivity; (5) irretrievable and irreversible commitments of resources. A study of the statement establishes that each of these factors was given full consideration.

However the question of alternatives deserves further brief comment since it is specifically mentioned in Section 4332 (D), and our discussion to this point has been directed for the most part to Section 4332 (C). Section 4332 (D) provides that the preparing Federal agency shall: "Study, develop and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources." This requirement obviously overlaps Sec. 4332 (C) (iii). The Court is persuaded that compliance with that requirement is accomplished at pp. 189-227 of the Impact Statement and is conclusive demonstration that the mandate of subsection (D) (as well as C) has been followed.

In sum, in the opinion of this Court, defendants have done everything Sec. 4332 of the NEPA requires them to do before proceeding with this "major Federal action significantly affecting the environment."

Accordingly it is this 11th day of May, 1973 ordered that

(1) plaintiff's motion for preliminary injunction be denied; and

(2) defendant's motion for summary judgment be granted, there being no material facts in dispute as to defendants' compliance with Section 4332 of the National Environmental Policy Act of 1970.

The foregoing constitutes the Court's findings of fact and conclusions of law as required by Rule 56 FRCP.

1. This suit is brought under 42 U.S.C. Sec. 4332 (Section 102 of NEPA) and accordingly the Court addresses itself only to the question of whether the defendants have complied with the procedural requirements of the Act. Substantive questions must be answered with reference to 42 U.S.C. 4331 (Section 101 of NEPA) not here in issue, and conclusions reached thereunder can be reversed only upon a showing that the actual balances of costs and benefits that was struck was "arbitrary" or that it "clearly gave insufficient weight to environmental issues." Calvert Cliffs' Coord. Com. v. United States AEC, 449 F.2d 1109, 1115 (D.C. C.A. 1971). Obviously what may be material in determining whether a conclusion of the defendants is "arbitrary" is not necessarily material in determining whether the procedural requirements of NEPA have been met.

2. NEPA had become effective January 1, 1970, thus requiring an impact statement for further activity. This was the first statement prepared by defendants. It is conceded that it was inadequate.

3. The Agricultural Research Center occupies some 11,400 acres, most of which is undeveloped. The proposed Consolidated Center would embrace some 480 acres. Opponents of the plan here under consideration are concerned with the possible piecemeal development of the acreage not devoted to the Consolidated Center. The whole question of use of the agricultural land holdings and the interrelation with other area plans is dealt with in Part III, Sections A, B & C (pp. 67-143) of the Impact Statement.

4. The Court here considers primarily subsections (C) and (D) in this discussion. Subsections (E), (F), (G) and (H) are not immediately pertinent to this dispute while subsections (A) and (B) are mandates general in nature.

5. In this case Asst. Treasury Secretary Eugene Rossides.

6. See distribution list at 3 ELR 20662, supra. Plaintiff MNCPPC alleges in paragraph 15 (b) that its comments were not sought in the preparation of the final impact statement of November 24, 1972. The record shows that not only were its comments sought, they were printed in Appendix E to the statement. Such an allegation — clearly at variance with the record — will not be considered in weighing the question of whether there exist material questions of fact in dispute between the parties.