Image of Greater San Antonio v. Brown

No. 76-2251 (5th Cir. March 30, 1978)

The court affirms a lower court's dismissal of a suit challenging, on the grounds of alleged violations of the National Environmental Policy Act (NEPA) and Title VII of the Civil Rights Act, proposed personnel reductions at Kelly Air Force Base. The Air Force's decision that preparation of an environmental impact statement was not required because the proposed force reduction would not have a significant effect on the "quality of the human environment" passes the test of reasonableness. Plaintiffs presented evidence of significant socioeconomic impacts on the area but made no showing of potential primary effects on the physical environment. The court rules that socioeconomic effects, standing alone, are insufficient to trigger NEPA's environmental impact statement requirement. Such effects may, however, be considered under the statute where the proposed action will have a primary impact on the natural environment and an impact statement is thus required.

Counsel for Plaintiffs-Appellants
James M. Heidelberg, Jr.
P.O. Box 1223, San Antonio TX 78212
(512) 736-2471

Counsel for Defendants-Appellees
Hugh T. Shovlin, Ass't U.S. Attorney
655 E. Durango Blvd., San Antonio TX 78206
(512) 229-6500

Before INGRAHAM, GEE and TJOFLAT, Circuit Judges.

[8 ELR 20324]

GEE, Circuit Judge:

Plaintiffs Image of Greater San Antonio and American Federation of Government Employees, A.F.L., C.I.O., Local 1617, filed separate suits against the Secretary of Defense and others challenging a proposed reduction in force (RIF) at Kelly Air Force Base. Plaintiffs alleged in their complaints that the Air Force's failure to file an Environmental Impact Statement (EIS) violated the National Environmental Policy Act of 1969 (NEPA) § 102, 42 U.S.C. § 4332 (1970), and that the proposed discharge of a substantial number of Mexican-Americans violated Title VII, 42 U.S.C. § 2000e-2 et seq. (1970). The district judge consolidated the cases. After a hearing on plaintiffs' motion for a preliminary injunction, the district court denied plaintiffs' motion and granted defendants' motion to dismiss.¹ Plaintiffs appeal.

The facts are not in dispute. The RIF at Kelly AFB is the result of a series of events and decisions originating with the congressional decree that the number of civilian employees within the Department of Defense be reduced by 22,500 in fiscal 1976. Department of Defense Appropriation Authorization Act of 1976, Pub.L.No. 94-106, 89 Stat. 531 (1975). In compliance with the Act, the Secretary of Defense allocated reductions among the Army, Navy and Air Force. Within the Air Force, the Air Force Logistics Command (AFLC) was directed to reduce its manpower by 6,142 employees. The major part of this reduction was achieved by means other than involuntary discharge. In the end only about 2,500 employees had to be fired. Of these, about one-half had been employed at Kelly.

In determining how the cutbacks would be distributed among the five AFLC centers, the Air Force analyzed its mission requirements and compared them with the skills of the civilian employees at the various centers. A "skills imbalance" had developed since 1970 as the Air Force had achieved previously mandated reductions by a combination of natural attrition and a freeze on hiring. Since the flying time of planes for which Kelly AFB had primary maintenance responsibility had been reduced significantly, the Air Force decided that the greatest number of terminations would take place at Kelly. Once that decision was made, the Air Force eliminated those job [8 ELR 20325] positions at Kelly which it considered unnecessary. This was done solely on the basis of job classification. The Air Force had no knowledge of the names or identities of the employees in those positions until after the termination decision had been made. Approximately 250 of the employees ultimately discharged refused offers of lateral transfers to other Air Force bases.

[Discussion of Title VII claim omitted — Ed.]

NEPA

Before implementing a major federal action which will have a significant effect on the quality of the human environment, a federal agency must prepare an Environmental Impact Statement, 42 U.S.C. § 4332(2)(C). As a result of an informal assessment, the Air Force concluded that no EIS was necessary with respect to this RIF because it would not have a significant effect on the "quality of the human environment" as those terms are used in the statute.

The initial determination concerning the need for an EIS lies with the agency. 42 U.S.C. § 4332(2)(C). In Save Our Ten Acres v. Kreger, 472 F.2d 463 (5th Cir. 1973), this court held that an agency's decision that no EIS is necessary should be reviewed under a standard of reasonableness. However, a court should proceed to full hearing on the merits only if the plaintiff raises substantial environmental issues. Hiram Clarke Civic Club, Inc. v. Lynn, 476 F.2d 421, 425 (5th Cir. 1973).

Plaintiffs presented evidence below tending to show that the discharge of some 1,200 civilian employees from Kelly AFB would have significant socio-economic effects on the discharged employees specifically and on San Antonio generally. Plaintiffs presented no evidence of any significant effects on natural resources. Except for a broad allegation in the complaint that the RIF would have a "profound effect upon the environment, the health and welfare of man, and the natural resources of the greater San Antonio area," plaintiffs have said nothing about effects on the physical environment except that they are not an essential prerequisite to an agency's obligation to prepare an EIS. Thus, the question before this court is whether socio-economic effects, standing alone, can trigger NEPA's EIS requirement.

Although the language and legislative history of NEPA are somewhat less than clear,⁷ we are convinced that Congress did not intend that a managerial decision to discharge a number of employees would require preparation of an EIS. NEPA was enacted in recognition of the effect that man's activities — his technological advances, industrial expansion, resource exploitation, and urban development — have on the "natural environment." 42 U.S.C. § 4331. The primary concern was with the physical environmental resources of the nation. National Association of Government Employees v. Rumsfeld, 413 F. Supp. 1224, 1229 (D.D.C.1976), aff'd sub nom., National Association of Government Employees v. Brown, 181 U.S. App. D.C. 199, 556 F.2d 76 (1977).

We do not mean to say that socio-economic effects can never be considered under NEPA. When an action will have a primary impact on the natural environment, secondary socio-economic effects may also be considered. See, e.g., Hanly v. Mitchell, 460 F.2d 640 (2d Cir.), cert. denied, 409 U.S. 990, 93 S. Ct. 313, 34 L. Ed. 2d 256 (1972); Council on Environmental Quality Guidelines, 40 C.F.R. § 1500.8(a)(3)(ii) (1975). But when the threshold requirement of a primary impact on the physical environment is missing, socio-economic effects are insufficient to trigger an agency's obligation to prepare an EIS. Breckinridge v. Rumsfeld, 537 F.2d 864 (6th Cir. 1976), cert. denied, 429 U.S. 1061, 97 S. Ct. 785, 50 L. Ed. 2d 777 (1977); Metlakatla Community v. Adams, 427 F. Supp. 871 (D.D.C. 1977); National Association of Government Employees v. Rumsfeld, 418 F. Supp. 1302 (E.D.Pa.1976); National Association of Government Employees v. Rumsfeld, 413 F. Supp. 1224 (D.D.C.1976), aff'd sub nom., National Association of Government Employees v. Brown, 181 U.S. App. D.C. 199, 556 F.2d 76 (1977); but see McDowell v. Schlesinger, 404 F. Supp. 221 (W.D.Mo.1975).⁸ Since plaintiffs have come forward with no evidence of a primary impact on the physical environment, as indeed they cannot, the Air Force's decision that no EIS was necessary clearly passes the reasonableness standard of Save Our Ten Acres, supra.

Plaintiffs argue on appeal that in deciding that no EIS was necessary the Air Force failed to comply with its own regulations. There is nothing in the record on appeal to indicate that this issue was ever presented to the court below. It is not included in the complaints filed by the plaintiffs, nor is there any reference to it in the trial judge's findings of facts and conclusions of law. Thus, the issue cannot properly be considered by this court. See D.H. Overmyer Co. v. Loflin, 440 F.2d 1213 (5th Cir.), cert. denied, 404 U.S. 851, 92 S. Ct. 87, 30 L. Ed. 2d 90 (1971).

AFFIRMED.

1. Defendants' nonspecific motion to dismiss raised both subject-matter jurisdiction and failure to state a claim issues. Although the district court decided that plaintiffs' claims lacked merit, he also held that he lacked subject-matter jurisdiction. We thus view his dismissal of the action as based on alternative holdings. Since the district court and the parties have focused on the merits of plaintiffs' claim and since the district court made extensive findings of fact and conclusions of law relative to the merits of plaintiffs' claims, we think it prudent to treat the dismissal as one for failure to state a claim. However, because the district court considered matters outside the pleadings, we must review the dismissal under summary judgment standards. See Fed.R.Civ.P. 12(b); Tuley v. Heyd, 482 F.2d 590 (5th Cir. 1973).

7. As the Second Circuit noted in Hanley v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert. denied, 412 U.S. 908, 93 S. Ct. 2290, 36 L. Ed. 2d 974 (1973), the language of NEPA "has been characterized as 'opaque' and 'woefully ambiguous.'" 471 F.2d at 825 (footnotes omitted). Compare the use of statutory history in Breckinridge v. Rumsfeld, 537 F.2d 864 (6th Cir. 1976), cert. denied, 429 U.S. 1061, 97 S. Ct. 785, 50 L. Ed. 2d 777 (1977), with the interpretation of congressional policy as expressed in the body of the Act in McDowell v. Schlesinger, 404 F. Supp. 221 (W.D.Mo.1975).

8. To the extent it holds that socio-economic effects standing alone can trigger NEPA, McDowell itself stands alone. All other cases we have found have taken the contrary position. McDowell, however, is not free from ambiguity. The Court in Breckinridge read McDowell to say that socio-economic effects by themselves are sufficient. 537 F.2d at 867 n.7. Metlakatla, supra, seems to read McDowell as involving a primary impact on the physical environment along with extensive adverse socio-economic effects. 427 F. Supp. at 875.