East 63rd Street Association v. Coleman

No. 76-6083 (538 F.2d 309) (2d Cir. May 18, 1976)

The Second Circuit affirms the district court's rejection, 7 ELR 20459, of appellants' challenge to the adequacy of an environmental impact statement prepared for a proposed subway construction project. The lower court did not abuse its discretion by denying injunctive relief to the claimants on the basis of laches.

Counsel are listed at 7 ELR 20459.

[7 ELR 20465]

Per curiam:

This case came on for an expedited hearing on the merits on May 18, 1976. It is an appeal from an order of the United States District Court for the Southern District of New York, Marvin Frankel, Judge, denying the appellants' motion for a preliminary injunction against certain excavation work along East 63rd Street between Park and Third Avenues in Manhattan. Injunction was sought on the basis of failure on the part of the appellees to comply with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., on the basis that the environmental impact statement filed in April, 1973, inadequately considered certain impacts pending construction including particularly so-called "cut-and-cover" construction along 63rd Street, particularly between Lexington and Third Avenues, and incidental removal of existing trees, as well as, following construction, an extensive grating system substituting for much of the sidewalk along 63rd Street. Appellants also allege that the impact statement gave insufficient consideration to alternatives including alternative station configurations and construction methods that might reduce such impacts.

We affirm the judgment essentially on the 34-page decision and order of Judge Frankel issued on May 17, 1976. Among other factors carefully weighed by Judge Frankel were the relatively temporary nature of the construction impacts, it being estimated that the entire cut-and-cover operation will be completed in two years and thereafter all construction will be proceeding underground; the rather considerable information in the impact statement and recounted at page 10 of Judge Frankel's opinion relative to temporary construction disruptions; and the extensive measures to be taken for minimization of the adverse effects of the construction process, noted at pages 14 and 15 of Judge Frankel's opinion. This court notes from the argument that these include concrete decking over the Second Avenue subway construction above 100th Street; the use of an elevator (complained of by the appellants) to withdraw excavated rubble from the ultimate excavation; and the compliance with assorted criteria relative to noise, sound, dust and other construction inconvenience.

Appellants argue that Judge Frankel erred in concluding that the environmental impact statement was adequate on the basis that the statement was insufficiently detailed and inadequately considered alternative locations of the station. The appellants also argue that the district court erred because the environmental impact statement was as a practical matter authored by the Transit Authority rather than the Department of Transportation. Finally, the appellants argue that the district court erred in concluding that they were not entitled to injunctive relief because of their tardiness in filing suit. We note, however, that here suit was not brought until after the contract for construction had been let. We also note that even if there were violations of the National Environmental Policy Act, which we by no means find, the district court has substantial discretion to determine whether an injunction should issue. See, Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927, 935 [5 ELR 20068] (2d Cir. 1974), vacated on other grounds and remanded, 423 U.S. 809 [6 ELR 20068] (1975). At the very least, plans showing the extent of the cut-and-cover excavation have been available since November, 1975, when the New York City Transit Authority met with Community Board No. 8, so that by that time appellants had or could have had precise knowledge of the exact construction that was contemplated. While appellants claim that originally they were misled as to the extent of the cut-and-cover excavation, the map at page 14 of the environmental impact statement rather clearly indicates that the station location extends from Third Avenue beyond Lexington Avenue, sufficiently, we think, to have put appellants on inquiry.

Weighing the equities in the light of the public interest in the improvement of mass transportation as well as the other benefits from the subway referred to by Judge Frankel, including the improvement of air quality, see Friends of the Earth v. Carey, No. 75-7497 [6 ELR 20448] (2d Cir. Apr. 26, 1976), we cannot say that Judge Frankel abused his discretion. The denial of the preliminary injunction is hereby affirmed.