Crosley Building Corporation v. Sampson

No. 75-1043 (D.D.C. September 29, 1975)

NEPA does not require the General Services Administration to file an impact statement in conjunction with its submission to the House and Senate Public Works Committees of a prospectus for the lease of office building space in Jackson, Mississippi. Plaintiffs, owners of two office buildings in Jackson currently occupied by various federal agencies, have standing to maintain this action despite the fact that they failed to comment on the draft EIS, but are not entitled to a preliminary injunction because they have failed to demonstrate a likelihood of success on the merits. In the factual context of this case, the submission of the prospectus pursuant to the Public Building Act of 1959 was not a proposal for legislation within the meaning of NEPA. In addition, at the time of the submission, the GSA proposal was not sufficiently definite to require an EIS. The congressional committees ultimately approved construction of a new federal office building in Jackson, rather than the lease arrangement proposed in the prospectus.

Counsel for Plaintiffs
Edward C. Berkowitz
Frosh, Lane & Edson
1025 Connecticut Ave., N.W., Suite 707
Washington, D.C. 20036

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

[5 ELR 20711]

Pratt, J.:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Findings of Fact

1. This lawsuit was brought by the Crosley Building Corp., a corporation of the State of Texas, and the Crosley Building Corporation, an Indiana Corporation.

2. The defendants are Arthur F. Sampson, sued in his official capacity as the Administrator of the General Services Administration, and the General Services Administration (GSA).

3. The plaintiffs seek to enjoin the defendants from entering into a contract for land acquisition and construction of a proposed federal office building to be located in Jackson, Mississippi, because, they allege, the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., had been violated. Specifically, plaintiffs claim that an environmental impact statement (EIS) should have been presented to the Public Works Committees of the House of Representatives and the Senate at the time GSA presented a lease prospectus to the Committees for their approval pursuant to the Public Buildings Act of 1959, as amended, 40 U.S.C. § 606(a).

4. The plaintiffs own and operate two office buildings in Jackson, Mississippi, which are partially occupied by various federal agencies which would be relocated to the proposed federal office building.

5. On May 7, 1975, the GSA, pursuant to § 7(a) of the Public Buildings Act of 1959, as amended, 40 U.S.C. § 606(a), transmitted to the Committees on Public Works of the Senate and of the House of Representatives a prospectus for a proposed lease of 277,000 square feet of space in an office building to be constructed by a private developer in Jackson, Mississippi. The prospectus does not describe any specific site in Jackson, Mississippi, on which the proposed office building would be located, nor at the time of the submission of the prospectus had a proposed site been selected.

6. As recited in the lease prospectus, GSA had determined that the proposed new facility was required to consolidate and provide modern, functional space for the Department of the Treasury, the Department of Agriculture, and 16 other federal agencies then located in 20 separate leased locations of varying quality scattered throughout the Jackson metropolitan area with resulting impairment of agency operations, increased operating costs and duplication of facilities. As further recited in the lease prospectus, existing rental space was not then available in Jackson in sufficient quantity [5 ELR 20712] in one location to permit the desired consolidation of federal space, and such existing space generally failed to meet federal quality standards.

7. Under GSA leasing procedures, following approval of the Committees, GSA would advertise for offers to lease and these would be submitted to GSA for evaluation and selection of the low responsive and responsible offeror.

8. On July 31, 1974, the Committee on Public Works of the Senate, pursuant to § 5(f) of the Public Buildings Amendments of 1972, P.L. 92-313, 86 Stat 216 (40 U.S.C. § 602a(f)), and § 7 of the Public Buildings Act of 1959, as amended, 40 U.S.C. § 606(a), approved for construction, under a purchase contract arrangement and not on a lease arrangement, a federal office building in Jackson, Mississippi (the "Jackson FOB"), containing approximately 277,000 square feet of occupiable space, as described in the prospectus.

9. On October 10, 1974, the Committee on Public Works of the House of Representatives took action substantially identical to the action of the Committee on Public Works of the Senate, similarly approving the proposal on a purchase contract arrangement.

10. On October 29, 1974, GSA filed with the Council on Environmental Quality (CEQ) a draft environmental impact statement dated October 21, 1974, and pertaining to the proposed Jackson FOB. Notice of filing of said draft environmental impact statement, and of its availability for public review, was published on November 8, 1974, in the Federal Register, Volume 39, No. 217, at pages 39599-39600. Neither plaintiff ever commented to GSA on the draft EIS in accordance with NEPA procedures.

11. The GSA final EIS was filed with CEQ on August 22, 1975. On August 29, 1975, notice of the filing of the final EIS was published in the Federal Register.

12. On April 21, 1975, GSA selected as a proposed site for the construction of the new Jackson FOB an 82,853 square foot tract in Jackson, Mississippi, bounded by West Capitol Street on the south, by North Roach Street on the west, by West Amite Street on the north, and by North Farish Street on the east. This proposed site is located approximately 1,000 feet to the northwest of the Petroleum Building and the Milner Building, which buildings are owned by plaintiffs.

Conclusions of Law

1. On the basis of the allegations of the complaint, the plaintiffs have standing to maintain the action.

2. The plaintiffs can bring this action even though they did not comment on the draft EIS.

3. For this court to issue a preliminary injunction, plaintiffs would have to meet four strict criteria:

(1) A likelihood that that would prevail on the merits;

(2) Imminent and irreparable harm to themselves unless the injunction is granted;

(3) Absence of substantial harm to other interested parties;

(4) Absence of harm to the public interest.

See, e.g., Virginia Petroleum Jobbers Association v. FPC, 259 F.2d 921, 925 (C.A.D.C. 1958); Canal Authority of the State of Florida v. Callaway (Cross-Florida Canal, 489 F.2d 567 (C.A. 5 1975).

4. Plaintiffs have failed to show a likelihood that they would prevail at a hearing on the merits.Therefore, their motion for a preliminary injunction is denied. Accordingly, the court will not make findings and conclusions with respect to the other prerequisites for the issuance of a preliminary injunction.

5. NEPA does not require that GSA, as a matter of law, had to file an EIS with its prospectus for a lease of space in Jackson, Mississippi, at the time it submitted such prospectus to the House and Senate Public Works Committees. In the factual context of this case, the submission of the prospectus by GSA pursuant to 40 U.S.C. § 606, was not a proposal for legislation within the intendment of NEPA.

6. Before a meaningful EIS can be prepared, the agency must have first formulated a proposal of sufficient definiteness upon which the EIS can be based.

7. As to the timing of the preparation of an EIS, the project or proposal must be of sufficient definiteness to make meaningful an evaluation of its environmental impact and alternatives. Similarly, in Scientists' Institute for Public Information v. Atomic Energy Commission (SIPI), 481 F.2d 1079, 1094 (C.A.D.C. 1973), the court observed that "Statements must be written late enough in the development process to contain meaningful information, but they must be written early enough so that whatever information is contained can practically serve as an input into the decisionmaking process." The court further noted that questions as to timing of an EIS "require agency expertise, and therefore the initial and primary responsibility for striking a balance between the competing concerns must rest with the agency itself, not with the courts" (footnote omitted). 481 F.2d at 1094. In the recent Supreme Court decision in Aberdeen and Rockfish R. Co. v. SCRAP, 43 L.W. 4845 (June 24, 1975), the Supreme Court, in commenting that the sentence in NEPA which provides that the EIS shall accompany the proposal through the existing agency review processes does not affect the time when the EIS must be prepared, stated, "It simply says what must be done with the 'statement' one it is prepared — it must accompany the 'proposal.'"

8. At the time GSA submitted the lease prospectus to the congressional public works committees in this case, the proposal was not sufficiently definite so as to require an EIS. GSA had made no irrevocable commitments with regard to the proposal for a federal office building, and under lease procedures, no commitment to lease could be made until, in accordance with GSA procedure, GSA received proposals to lease from offerors pursuant to formal solicition of such proposals.

9. The times at which the draft EIS and the final EIS were filed by GSA were not contrary to NEPA and were not arbitrary and capricious.

An Order consistent with the foregoing has been entered this date.

ORDER

This matter having come before court on plaintiffs' Motion for a Preliminary Injunction, and the court having considered the memoranda in support of and in opposition thereto, and having heard oral argument on September 4, 1975, for the reasons assigned in the court's Findings of Fact and Conclusions of Law filed herein, this 29th day of September, 1975, it is

ORDERED, that plaintiffs' Motion for a Preliminary Injunction be, and the same hereby is, denied.