738 F. Supp. 1454 (1990) | Cited 0 times | S.D. New York | June 8, 1990


Plaintiff John D'Agnillo commenced this pro se action toenjoin defendants from complying with this Court's consentdecrees and related orders in the "Yonkers case," United Statesv. Yonkers, 80 Civ. 6761 (LBS), until the federal defendantsand the FHIO had performed environmental studies whichplaintiff claimed were mandated by federal statutes andregulations. In a Memorandum Opinion and Order dated April 4,1990, familiarity with which is assumed, the Court addressedcertain defendants' motion to dismiss the complaint for lack ofstanding, plaintiff's motion to amend his complaint, andplaintiff's motion for a preliminary injunction. 738 F. Supp. 1443.

The April 4, 1990 opinion directed further briefing oncertain issues. Those briefs were furnished. The Court heardoral argument on May 9 and at its conclusion permitted afurther round of written submissions. Those are also at hand.The Court is now in a position to decide the motion for apreliminary injunction and related issues.


At the outset it is appropriate to recognize the City ofYonkers' transformation from a nominal defendant into afull-fledged plaintiff. That transformation, noted at thebeginning of the May 9 hearing, Tr. 2-3, finds furtherexpression in the post-hearing submissions. For the first time,the City offers affidavits of its engineers and other employeesin an effort to show irreparable environmental harm if theCourt does not, inter alia, stay all construction under theconsent decree and related orders.

I am not critical of the City's failure to offer suchevidentiary material at an earlier date. The federaldefendants' suggestions notwithstanding, it is not clear to methat environmental concerns were fully litigated before JudgeSand. On the contrary, his orders seem to preserve the rightsof the parties, and the obligation of the federal defendants,to address them in the context of specific housing proposals.The City's witnesses say without contradiction that they werenot consulted by the federal defendants with respect to theenvironmental concerns those witnesses now raise. There isaccordingly no question of laches or issue preclusion. While itseems likely that the City would have been receptive to arequest by plaintiff D'Agnillo for technical reinforcements atan earlier stage in this litigation, the procedural posture ofthe case was somewhat strained until more recent events causedthe City to run up its true colors.

Accordingly I have considered the City's affidavits as partof the post-hearing submissions. The question arose whether HUDand the FHIO, confronting these factual assertions for thefirst time, should be given an opportunity to answer them. Butin the view I take of the case that is not necessary atpresent.


Plaintiff D'Agnillo contends that NEPA and the regulationsrequire HUD to perform "a programmatic EIS on the 4,000 units,taking into effect the 200 units as a whole, plus a sitespecific EIS on the 200 units." Post-hearing brief at 18. Inthe interim plaintiff asks that all actions of HUD and FHIO toimplement the consentdecree be enjoined. The City asks that "actual construction bestayed," pending a cumulative impact analysis of the first 200units together with the additional 4,000 units, oralternatively a stay of construction until an EIS on the 200units has been done. Post-hearing brief at 1-2.

A stay of "actual construction" refers as a practical matteronly to the 200 units of public housing on the seven designatedsites, since no proposals have been obtained for any of the4,000 subsidized units. The City's present request forinjunctive relief is thus of a more limited nature. Theimmediate issue is whether the record justifies a stay ofconstruction of the 200 units.

Plaintiff and the City criticize HUD's environmental reviews.They contend that the EA's are inadequate, and that acomprehensive EIS is required now, either for all 4,200 unitsor at least for the 200. Assuming without deciding that thosecriticisms are sound, "injunctive relief does not followautomatically upon a finding of statutory violations, includingenvironmental violations." Town of Huntington v. Marsh,884 F.2d 648, 651 (2d Cir. 1989), cert. denied, ___ U.S. ___, 110S.Ct. 1296, 108 L.Ed.2d 473 (1990) (construing NEPA).1 Inenvironmental cases as elsewhere, "the basis for injunctiverelief is irreparable injury and the inadequacy of legalremedies." Huntington at 651 (citing cases). The Second Circuitwent on to observe:

In applying these general equitable standards for the issuance of injunctions in the area of environmental statutes, the Supreme Court has explicitly rejected the notion that an injunction follows as a matter of course upon a finding of statutory violation.


See also Sierra Club v. Hennessy, 695 F.2d 643, 649 (2d Cir.1982) ("A violation of NEPA does not necessarily require areflexive resort to the drastic remedy of an injunction.");Conservation Society of Southern Vermont v. Secretary ofTransportation, 508 F.2d 927, 933-34 (2d Cir. 1974), vac. onother grounds, 423 U.S. 809, 96 S.Ct. 19, 46 L.Ed.2d 29 (1975)(". . . it remains within the discretion of a district court todecline an injunction, even where deviations from prescribedNEPA procedures have occurred.").

Therefore the question is whether plaintiff and the City haveshown imminent irreparable injury as contemplated by NEPA:namely, significant adverse impact upon the quality of thehuman environment. They have not.

Their effort to do so is buttressed for the first time in thepost-hearing affidavits by expert opinions. Richard A.Aglietti, the City Engineer, deals with the sewer system.Robert Leonetti, the City Traffic Engineer, deals withvehicular traffic.

Aglietti discusses the sewer situation within the context ofthe 4,200 units. He nowhere suggests that construction of the200 units would cause a sewage disposal problem. It would bedifficult for him to do so, given the City's prior response toHUD that bringing the 200 units on line would be manageable.

Leonetti states that the 200 units alone "will result insignificant traffic impacts," ¶ 10. The two specific problemsoffered to support that conclusion both relate to the WrexhamRoad site. It is said that traffic generated by that site willhave to enter Midland Avenue at an intersection where "lefthand turns already pose a significant problem." HUD estimatesthe 28 Wrexham Road units "will result in 17 A.M. Peak vehicletrips and 18 P.M. Peak vehicle trips on Midland Avenue."Leonetti assumes that half of those vehicles will need to turnleft at the Midland Avenue intersection. ¶ 11. The result(rounding the morning figure up to 18) is an additional nineleft hand turns in both morning and evening peak traffic hours.That does not rise to the level of irreparable harm. I reachthe same conclusion with respect to Leonetti's observation thatthe present RFP forthe Wrexham Road site apparently does not call for enoughparking spaces (24 spaces for 28 units). ¶ 12. Assuming moreparking spaces should be provided, given the narrow dimensionsof the access road, that should be possible. No problems aresuggested with respect to any other site.

Counsel for the City reiterate a concern that demolition ofthe School 4 building will cause an asbestos hazard which HUDhas not addressed. Affidavit of Sy Gruza, Esq., at ¶ 4. WhileD'Agnillo echoes that concern, no expert opinion evidence of anasbestos hazard is offered, and it is incorrect to say that HUDhas taken no steps with respect to asbestos at School 4. AtHUD's insistence, the developer has retained an asbestosremoval contractor and is arranging an appropriate subcontract.HUD Post-Hearing Brief at 16 and Appendix D.

There is no basis in fact or law to stay the construction ofthe 200 units.


As for the 4,000 subsidized units, I reach the sameconclusion but for somewhat different reasons.

The sites for these units have not yet been selected. No RFPshave been drawn up and sent to contractors. No proposals havebeen made. No construction is on the planning board, let aloneimminent. The possibility of immediate irreparable harm doesnot arise.

Nevertheless, plaintiff and the City argue that the impactsupon the sewer system and traffic can and should be evaluatedat this time. All the 4,200 units (200 public and 4,000subsidized) will be in Yonkers, although we do not now know thestreet addresses of the 4,000 units. Therefore all the sewagegenerated by the units will eventually pass into WestchesterCounty's sewage treatment plant located in Yonkers. Agliettihas made calculations of the increase in daily volume ingallons that the residents of 4,200 units would generate,Affidavit at ¶ 15. He expresses this opinion:

In my professional opinion, the City sewer system may not able [sic] to handle a 4,200,000 gallon increase in daily volume in areas, like the Northeast and Southeast areas, designed to accommodate primarily single and two family homes. The cumulative effect of the construction of 4200 new housing unites would overwhelm the sanitary systems creating back-ups and sewer collapse problems, especially if all such developments were to come "on line" in the space of four years. The cumulative effect of that much housing in the geographic areas listed will almost certainly cause adverse environmental problems, creating "back ups" and raising the potential for harm to the Grassy Sprain Reservoir and Saw Mill River. ¶ 16.

I read this opinion to express the possibility that the sewersystem could not handle the increased load ("may not"), andthen to describe the consequences if that inability manifesteditself.

Aglietti also describes as a "serious situation" themoratorium which at the time of his affidavit was in effect onnew sewer extensions, that moratorium being "traceable to thesewage treatment plant exceeding its permit capacity andbecause of allegations that the county is dumping raw sewageinto the Hudson River." Id. at ¶ 14.

There is no basis in Aglietti's affidavit for an orderenjoining HUD and the FHIO from entering into theplanning of the 4,000 subsidized units at this time, as opposedto actual construction. One cannot predict with certainty howlong the processes of site selections, requests for proposals,and approval of those proposals will take. In the interim, thesituation with respect to the sewage system may change. Thatpossibility is illustrated by the reports in the press on May26, 1990, that the New York State Department of EnvironmentalConservation (DEC) had on May 25 lifted the moratorium on theconstruction of new sewer mains to which Aglietti referred inhis affidavit. The DEC Commissioner, Thomas Jorling, expressedsatisfactionwith assurances given by the Westchester County Executive,Andrew P. O'Rourke, that the county would require communitiesto take corrective actions "to protect the receiving waters ofthe Yonkers Joint Sewage Treatment Plant." The New York Times,May 26, 1990, at p. 26.

For essentially the same reasons, potential trafficcongestion resulting from a total of 4,200 units does not posea sufficiently imminent threat of irreparable harm to theenvironment to justify enjoining planning of the 4,000 units.

Plaintiff complains that HUD's alleged violations of NEPAmight visit upon Yonkers and its taxpayers liability forthird-party environmental claims. That theory of damage is onlyspeculative. In any event, plaintiff cites not authority forthe proposition that such concerns fall within the risks NEPAaddresses, namely, "substantial damage to the environment."Town of Huntington v. Marsh, supra 884 F.2d at 653 (emphasisadded). Plaintiff's economic concerns, while understandable,are not cognizable under NEPA.

For the foregoing reasons the motion of plaintiff, supportedby the City, for a preliminary injunction will be denied onthis record and at this time.


While no injunction will issue, it remains to considerwhether plaintiff is entitled to declaratory relief withrespect to these defendants' compliance with NEPA.

Plaintiff's amended complaint prays for declaratory relief atp. 11, subparagraphs (a)-(c). While the Declaratory JudgmentAct, 28 U.S.C. § 2201, 2202, does not confer subject matterjurisdiction over defendants, the statute does create a remedyavailable in actions where jurisdiction over the United Statesor one of its agencies derives from other sources. Garcia v.United States, 538 F. Supp. 814, 816-17 (S.D.Tex. 1982). Thefederal defendants at bar do not dispute subject matterjurisdiction.

Environmental cases reflect the inter-workings of prayers fordeclaratory and injunctive relief. Kleppe v. Sierra Club,427 U.S. 390, 96 S.Ct. 2718, 49 L.Ed.2d 576 (1976), the seminalSupreme Court case on the necessity for comprehensiveenvironmental impact statements under NEPA, involvedapplications for "declaratory and injunctive relief," id. at395, 96 S.Ct. at 2723; the court of appeals in Kleppecharacterized the suit as seeking, inter alia, "a declaratoryjudgment that NEPA was being violated." 514 F.2d 856, 867 (D.C.Cir. 1975). Similarly, in Town of Huntington v. Marsh, supra, acase involving the dumping of dredged materials in Long IslandSound under permits issued by the Corps of Engineers, theSecond Circuit held that the Corps had violated NEPA butreversed the district court's granting of an injunction. Thusit is possible for district courts to declare obligations whiledenying injunctions. Indeed, as plaintiff stresses, it isdesirable to do so, in order that the agency's statutoryobligations be judicially defined as early in the developmentand construction process as the circumstances allow. SeeHuntington I at 1143.

As noted, plaintiff and the City contend that NEPA and thepertinent regulations require HUD at this time to prepare acomprehensive EIS for all 4,200 units. They also contend thatan EIS on the 200 units is required. In the Court's view, it isappropriate to address those issues now. The 200 Public HousingUnits

Under the funding arrangements for the 200 public housingunits, HUD itself is directly responsible for compliance withNEPA. In the Court's prior opinion and order, I ordered furtherbriefing on the question whether HUD must comprehensivelyreview the environmental impact of the seven public housingsites. 738 F. Supp. at 1451-53.

HUD's position has been and remains that no comprehensivereview of the seven sites was required. The question is one of"aggregation." The HUD regulation applicable to theseparticular housing units is 24 C.F.R. § 50.21(a), whichprovides in part:

Individual actions which are geographically related and are logical parts of a composite of contemplated actions shall be evaluated together.

HUD contends that the seven public housing projects need not beevaluated together because they are not "geographicallyrelated" within the meaning of that aggregation rule.

However, perhaps entertaining some inner doubts that theCourt would accept that argument, HUD responded to the prioropinion by conducting a Supplemental Environment Review ("SER")which constitutes a comprehensive assessment of the potentialcumulative environmental impacts of the seven projects.

The SER pinpoints the seven sites on a map of Yonkers, andargues that they are not "geographically related" because they"are essentially located in different neighborhoods as can bedefined by established city planning criteria." SER dated April30, 1990 at 1. Nonetheless, the SER goes on to assess the"aggregation of relative environmental factors." Sensiblyenough, the SER is concerned not with the impact upon theenvironment of a particular site standing alone — this is thefunction of the EA's — but rather upon conditions to which allseven sites, once the units are built, would contribute in theaggregate. HUD identified five such areas: (a) water supply;(b) waste water/sewage system; (c) traffic implications; (d)air quality implications; and (e) impacts upon the publicschool system. Id. at 2.

As to water supply and the waste water/sewage system, HUDrelied upon the City's prior acknowledgement, following anaggregate analysis of its own, that existing City utilities inthe immediate area of all seven housing sites would adequatelyservice the proposed developments. The City's engineer, Mr.Aglietti, reached a comparable conclusion with respect to theadequacy of the existing sewer systems to accept sewerhook-ups. After the City's first evaluation one of the sevensites, the Valentine Street site, was withdrawn by the CatholicChurch and replaced by the Grammercy site on Central ParkAvenue. The Grammercy site required the extension of a sewerline, not simply a hook-up. The State's moratorium was ineffect at the time, but this Court (Judge Sand) obtained anexemption to the moratorium. Based upon the City's ownevaluations, there is no reason to believe that construction ofthe 200 public housing units pose water supply or wastewater/sewage system problems. SER at 3-4.

As to impacts upon the public school system, the SER observedthat Yonkers is currently under a court order to desegregateits school system. Thus any change in school attendancenecessitated by the development by the public housing would bereflected in a modification to the desegregation order. Inthose circumstances, HUD concluded that no submission from theYonkers Board of Education discussing the impact of the projecton school enrollment was necessary, and HUD undertook no suchstudy of its own, concluding that: "Based upon thedesegregation order, an aggregated evaluation is achieved."Id. at 4.

As to air quality impacts, the HUD Environmental ClearanceOfficer, Douglas R. Manley, conferred with an environmentalengineer from the United States Environmental Protection Agencyand made calculations of the impacts of present vehicularemissions based upon miles per year. HUD reached thisconclusion:

Conclusion: In discussing with U.S.E. P.A. Staff the nature of these 7 scattered Public Housing Sites and the fact that these sites range from 14 units to a maximum of 48 units (an average of 28-29 units per site), it was concluded that the contributions of vehicle trips, in the aggregate, are not significant in adding to levels of pollutants. Reaching this conclusion is also based upon the fact that the 7 scattered housing sites are not geographically related and their contributions to air quality levels affect different sectors of the City. Note: The above air quality impacts are based upon the "worst case scenario" that have summed AM & PM generated trips; since AM & PM peaks are separated in time, contributions to existing pollutant level should be further reduced.

SER at 5-6.

As to traffic implications, HUD received data from the NewYork State Department of Transportation and the WestchesterCounty Department of Public Works — Traffic and HighwaySafety. Manley also consulted a New York Regional Data Map fromHUD's Office of Environment and Energy; previous HUD noiseassessments; a report of the Institute of Traffic Engineers;and conferred with a traffic engineer. HUD made sitecalculations based upon "trip generations" at each of the sevensites, and compared the trip generations resulting fromconstruction of the public housing with the demonstratedpresent vehicular traffic flow in each of the particular areas.Although the public housing units would additional traffic,"the impacts are considered to be minor in nature." Id. at 7.The SER stated:

Conclusion: Considering the scatteration of the 7 sites, the estimated trips generated, and their proximity, generally, to major traffic flows in this part of the City, it is my opinion, in the aggregate, that overall traffic volumes should be adversely affected by the limited vehicles from these sites entering the total stream of vehicular traffic. It must be recognized, however, that two of the sites (Whitman School and Helena Ave.) will need to traverse local streets and will add, what it is believed to be, minor impacts to these areas. Ibid.

This SER is the functional equivalent of a comprehensiveFONSI. Accordingly there is no purpose in entering adeclaratory judgment that an EIS should be performed. Plaintiffand the City are not satisfied with HUD's methodology or theenvironmental conclusions HUD reaches. But the court's power toreview such matters is limited. That is the teaching ofStrycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223,100 S.Ct. 497, 62 L.Ed.2d 433 (1980)(per curiam).

Karlen involved HUD's redesignation of a proposed site formiddle-income housing as one for low-income housing. Partiesinterested in the middle-income housing development claimed,inter alia, that HUD had violated NEPA. The district courtrejected the claim. The court of appeals, while agreeing thatHUD was not required to prepare a full-scale EIS under §102(2)(C), faulted the agency for noncompliance with §102(2)(E), which requires consideration of "appropriatealternatives." On remand, HUD prepared a lengthy reportentitled "Special Environmental Clearance," 444 U.S. at 225,100 S.Ct. at 499, which conceded that the agency might not haveconsidered all possible alternatives, but concluded that anyenvironmental costs resulting from implementing the projectwere insufficient to justify further studies or a mandatedsubstitution of sites. The district court accepted HUD'sconclusions, but the Second Circuit vacated and remanded againwith directions, in effect, to go back to the drawing board.

The Supreme Court reversed per curiam. The Court said thatthe court of appeals "purported to recognize that its role inreviewing HUD's decision was defined" by the AdministrativeProcedure Act, 5 U.S.C. § 706(2)(A) which provides that agencyactions should be set aside if found to be "arbitrary,capricious, an abuse of discretion, or otherwise not inaccordance with law . . .," but then looked to NEPA for "thesubstantive standards necessary to review the merits of agencydecisions . . ." Karlin v. Harris, 590 F.2d 39, 43 (2nd Cir.1978), quoted at 444 U.S. at 227, 100 S.Ct. at 499.

Proceeding in that fashion constituted error, the Court heldin Karlen. While NEPA establishes "significant substantivegoals for the Nation," it imposes upon agencies duties that are"essentially procedural." Ibid. (citing and quoting VermontYankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct.1197, 1219, 55 L.Ed.2d 460 (1978)). NEPA's function is "toinsure a fully informed and well-considered decision," but notone with which judges would agree had they been making theagency decisions. Karlen concludes: . . . once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot "interject itself within the area of discretion of the executive as to the choice of the action to be taken." Kleppe v. Sierra Club, 427 U.S. 390, 410, n. 21 [96 S.Ct. 2718, 2730, n. 21, 49 L.Ed.2d 576] (1976). See also FPC v. Transcontinental Gas Pipe Line Corp., 423 U.S. 326 [96 S.Ct. 579, 46 L.Ed.2d 533] (1976). In the present litigation there is no doubt that HUD considered the environmental consequences of its decision to redesignate the proposed site for low-income housing. NEPA requires no more. Id. at 227-28, 100 S.Ct. at 500 (footnote omitted).

See also Huntington I at 1143 ("NEPA mandates no substantiveoutcomes".)

In the case at bar, HUD has satisfied, however grudgingly,the "essentially procedural" requirements of NEPA by performingthe SER. In the SER, to paraphrase Karlen, "HUD considered theenvironmental consequences of its decision to build thedesignated number of public housing units at the sevendesignated sites. NEPA requires no more." As is the case withinjunctive relief, plaintiff is not entitled to declaratoryrelief in respect of the 200 public housing units.

The 4,000 Subsidized Housing Units

Under the statutory funding provisions, the 4,000 subsidizedhousing units will be constructed under the CommunityDevelopment Block Grant ("CDBG") Program created by the Housingand Community Development Act of 1974, 42 U.S.C. § 5301 etseq. Defendant FHIO has been created as a separate grantee ofCDBG funds. Accordingly FHIO is the entity responsible forcompliance with NEPA prior to committing funds to anyparticular project. HUD has reminded FHIO of that obligation ina letter dated September 30, 1988, which reads in part:

Please be advised that funds for activities subject to the provisions of 24 CFR Part 58 (Environmental Review Procedures for the Community Development Block Grant Program) may not be obligated or expended unless a release of funds has been approved in writing by Environmental Certification.

24 C.F.R. Part 58 contains HUD's regulations governingenvironmental review procedures for CDBG grants. The questionof aggregation is addressed in 24 C.F.R. § 58.32(a), whichprovides:

Project aggregation. (a) A recipient must group together and evaluate as a single project all individual activities which are related either geographically or functionally, or are logical parts of a composite of contemplated actions. The environmental review of a multi-year project shall encompass the entire multi-year scope of activities. This applies even if some of the activities are to be funded by other than Title I or Section 17 funds or carried out by someone else.

In addition, the Council on Environmental Quality haspromulgated regulations binding upon all federal agencies whichaddress the question of "connected" actions for environmentalimpact purposes. The CEQ regulations at 40 C.F.R. §1508.25(a)(1) provide that actions are "connected if they: . .. (iii) Are interdependent parts of a larger action and dependon the larger action for their justification." The SecondCircuit has looked to this regulation in determining whether asingle EIS is required under NEPA. Huntington I at 1142; HudsonRiver Sloop Clearwater v. Department of the Navy, 836 F.2d 760,763 (2d Cir. 1988).

In the case at bar, HUD and FHIO contend that for variousreasons a comprehensive EIS for the 4,000 units (or those unitsin conjunction with the 200 public housing units) is notrequired. Karlen is not applicable to that contention. Karlenholds that if the responsible agency has consideredcomprehensive environmental consequences, thereby fulfillingthe procedural requirements of NEPA, the courts cannot secondguess the substantive conclusions. On this aspect of the caseat bar, however, the agencies contend that no comprehensiveevaluation is possible or required. The issue is whether thatcontention conformsto NEPA's procedural requirements. On that question the leadingSupreme Court case is Kleppe v. Sierra Club, supra.

In Kleppe environmental groups challenged the action of theSecretary of the Interior in issuing coal leases, approvingmining plans, and taking other actions to enable privatecompanies and public utilities to develop coal reserves onfederally owned or controlled land. They claimed that §102(2)(C) of NEPA required the preparation of a comprehensiveEIS in respect of the coal reserves of the "Northern GreatPlains region," which embraced parts of Wyoming, Montana, NorthDakota, and South Dakota. The Court rejected the claim. Thefirst point of decision was that NEPA required an impactstatement only in respect of a "recommendation or report onproposals for . . . major Federal actions significantlyaffecting the quality of the human environment," and there wasno evidence in the record of an "existing or proposed plan orprogram on the part of the federal government for the regionaldevelopment of the area described in [plaintiff's] complaint."427 U.S. at 399-400, 96 S.Ct. at 2725-26.

Secondly, the Court held that plaintiff's "desire for aregional environmental impact statement cannot be met forpractical reasons. In the absence of a proposal for a regionalplan of development, there is nothing that could be the subjectof the analysis envisioned by the statute for an impactstatement." Id. at 401, 96 S.Ct. at 2726.

Up to that point in its opinion, the Court had dealt onlywith the reasoning of the court of appeals, which the Courtreversed. A time came, however, when the Court addressed anargument plaintiffs made to the court of appeals but that courtdid not reach. Plaintiffs in Kleppe argued that even without acomprehensive federal plan for the development of the NorthernGreat Plains, "a `regional' impact statement nevertheless [was]required on all coal-related projects in the region becausethey are intimately related." The Court addressed that argument"as an attack upon the decision of the [federal defendants] notto prepare one comprehensive impact statement on all proposedprojects in the region." Id. at 408-09, 96 S.Ct. at 2729-30.

The Court began its analysis by generally agreeing withplaintiffs' "basic premise that § 102(2)(C) may require acomprehensive impact statement in certain situations whereseveral proposed actions are pending at the same time."Construing § 102(2)(C) of NEPA, the Court said:

By requiring an impact statement Congress intended to assure such consideration during the development of a proposal or — as in this case — during the formulation of a position on a proposal submitted by private parties. A comprehensive impact statement may be necessary in some cases for an agency to meet this duty. Thus, when several proposals for coal-related actions that will have cumulative or synergistic environmental impact upon a region are pending concurrently before an agency, their environmental consequences must be considered together. Only through comprehensive consideration of pending proposals can the agency evaluate different courses of action.

Id. at 409-10, 96 S.Ct. at 2730 (footnotes omitted).

At that point in the text the Court dropped footnote 20:

At some points in their brief [plaintiffs] appear to seek a comprehensive impact statement covering contemplated projects in the region as well as those that already have been proposed. The statute, however, speaks solely in terms of proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions. Should contemplated actions later reach the stage of actual proposals, impact statements on them will take into account the effect of their approval upon the existing environment; and the condition of that environment presumably will reflect earlier proposed actions and their effects. (emphasis in original).

The Court rejected plaintiffs' alternative theory. It couldnot be said that the federaldefendants' choices of procedure were "arbitrary," as apractical matter. "Even if environmental interrelationshipscould be shown conclusively to extend across basins anddrainage areas, practical considerations of feasibility mightwell necessitate restricting the scope of comprehensivestatements." The Court concluded that plaintiffs' "contentionas to the relationships between all proposed coal-relatedprojects in the Northern Great Plains region does not requirethat [defendants] prepare one comprehensive impact statementcovering all before proceeding to approve specific pendingapplications." Id. at 414, 96 S.Ct. at 2732. At that point intext, the Court dropped footnote 26:

Nor is it necessary that [defendants] always complete a comprehensive impact statement on all proposed actions in an appropriate region before approving any of the projects. As [defendants] have emphasized, and [plaintiffs] have not disputed, approval of one lease or mining plan does not commit the Secretary to approval of any others; nor, apparently, do single approvals by the other petitioners commit them to subsequent approvals. Thus, an agency could approve one pending project that is fully covered by an impact statement, then take into consideration the environmental effects of that existing project when preparing the comprehensive statement on the cumulative impact of the remaining proposals. Cf. n. 20, supra.

More recently, the Second Circuit has considered the need forcomprehensive impact statements within the context of theregulations. The Second Circuit construed 40 C.F.R. §1508.25(a)(1)(iii) in Huntington I and Sloop Clearwater. Thetest in this circuit of "relatedness" under the regulation "iswhether the project has independent utility." Huntington I at1142. In that case, the Corps of Engineers conceived of its"project" as the designation of a disposal site, with theissuance of permits to use the site constituting a distinct andunrelated action. The court of appeals rejected that argumentas "merely a variant of `segmentation' which has been uniformlyrejected by courts," and held:

The designation of WLIS III clearly has no utility apart from its planned usage as a disposal site. Designation of a site to contain a contemplated load of 646,000 cys of waste material surely was related to the then-pending applications to dump 86,000 cys and the Corps' own plans to dump the remaining 560,000 cys. It is simply untenable to view site designation as distinct from issuing permits to use the site. We therefore agree with the district court that the Corps violated NEPA by not including a particularized discussion of the types and quantities of sediments to be dumped at WLIS III. Ibid.

In Sloop Clearwater, environmentalists sought to enjoindredging and pier construction by the Navy with respect to theproposed Staten Island homeport for a battleship group, pendingcompliance with NEPA. The Navy had complied with NEPA withrespect to dredging and pier construction, but had not yetcomplied with the statute in its plans for housing for homeport personnel and their families. Plaintiffs contended thatthe housing and operational aspects of the proposed homeportwere connected actions which had to be considered in a singleEIS. The Second Circuit disagreed. In addition to considering40 C.F.R. § 1508.25(a)(1)(iii), the court of appeals consideredsubsection (ii), which provides that actions are connected ifthey: "Cannot or will not proceed unless other actions aretaken previously or simultaneously."

The proposed federal actions were not "connected" undersubsection (ii) because, as the district court found, "[e]venif the Navy is unable to provide any family housing . . .military necessity requires it to proceed with the project."Given that finding, the court of appeals concluded that it wasinappropriate for the housing and the operational aspects ofthe homeport to be deemed "connected" under subdivision (ii).836 F.2d at 763. That same finding barred a conclusion ofconnection under subdivision (iii), since "the proper test forinterdependence is one of independent utility", and "it isclear that the two actions are notinterdependent under subdivision (iii), since the operationalaspect of the homeport has the requisite dependent utility."Id. at 764.

HUD and FHIO stress that no sites have been selected and noconstruction plans drawn up for any of the 4,000 subsidizedhousing units. Consequently, they contend, there are no"proposals" presently in being, and a comprehensive EIS is notrequired under the holding of Kleppe. HUD and FHIO also arguethat since no sites have been selected, an evaluation ofaggregate environmental impact is not feasible, relying uponNucleus of Chicago Home Owners Association v. Lynn,524 F.2d 225 (7th Cir. 1975), cert. denied, 424 U.S. 967, 96 S.Ct. 1462,47 L.Ed.2d 734 (1976). See this Court's prior opinion at 738F. Supp. at 1450-51.

The matter is complicated, however, by the particularcircumstances of the case at bar, from which HUD derives analternative argument. HUD observes correctly that since nosites for the long-term project of 4,000 subsidized units haveyet been identified, the only type of comprehensiveenvironmental assessment that "could conceivably be conductedwould be one focusing exclusively on those cumulativeenvironmental impacts that are solely a function of the numberof units." Federal defendants' reply brief to City brief at 9.The waste water disposal system falls within that category,since all sanitary sewers within the City of Yonkers feedeventually into the Westchester County sewage treatment plantlocated in Yonkers (which also treats sewage from otherWestchester communities). Increased vehicular traffic withinthe Yonkers streets is another environmental impact which is"solely a function of the number of units." But HUD argues thatthe number of 4,200 units is mandated by this Court's priorremedial orders, and HUD could not reduce it, citing for thatproposition Nucleus of Chicago Home Owners Association, supra,and Sworob v. Harris, 451 F. Supp. 96 (E.D.Pa. 1978). From thatpremise HUD argues:

Thus, the only alternative that could be studied in an environmental assessment or an EIS would be to reduce the total number of units. That option, however, is legally unavailable and, therefore, it would be utterly pointless to study it. Reply brief at 10.

At oral argument HUD's counsel, responding to a hypotheticalposed by the Court, which assumed (there is no presentevidence) that the addition of 4,200 units "would cause thesewage disposal system of the City of Yonkers to break downentirely and the City would become awash with sewage,"responded: "If the 4,000 unit number turns out to be too muchthen the problem should be addressed to Judge Sand not to HUD."Tr. 42-43.

In this litigation I will assume that the remedial ordersmandate the construction of 4,200 additional housing units inYonkers. But that mandate has practical consequences in theenvironmental context. It means that, at least with respect tothe number of additional units, one can identify the functionalequivalent of a single "proposal." Particular, site-orientedimpacts upon the immediately surrounding environment mustnecessarily await the designation of the sites themselves.Until sites are selected, there can be no proposals sufficientunder Kleppe to trigger an appraisal of those environmentalfactors. But the case at bar differs from Kleppe, since thetotal number of additional units is now known, and cumulativeenvironmental impacts resulting solely from that number can beidentified. Certainly that is so with respect to sewagedisposal; arguably it is so with respect to traffic.

Kleppe holds that when "several proposals" will have a"cumulative or synergistic environmental impact," theirenvironmental consequences "must be considered together." TheSecond Circuit cited that language in Huntington I in holdingthat the disposal site and the wastes to be deposited theremust be considered in a single EIS. 859 F.2d at 1142. The CEQguidelines provide that an EIS should analyze cumulativeimpacts when to do so is "the best way to assess adequately thecombined impacts of similar actions." 40 C.F.R. §1508.25(a)(3). The HUD regulation governing CDBG grants differsfrom its counterpart in the public housing context. 24C.F.R. § 58.32(a) requires evaluation "as a single project" of"all individual activities which are related eithergeographically or functionally, or are logical parts of acomposite of contemplated actions." (emphasis added). Thecommand is in the disjunctive. The scattered sites of the 4,000subsidized units may not prove to be "geographically" related;but, together with the 200 public housing units, they willcertainly be "functionally" related, at least with respect tothe production of sewage. Each subsidized housing unit may wellhave "independent utility," so that the units would not beregarded as related under 40 C.F.R. § 1508.25(a)(1)(iii); butthe requirement of a comprehensive EIS may be derived fromvarious strands in the statutory and regulatory tapestry, and Ifind sufficient basis for the requirement in the case at bar,given HUD's position that all 4,200 units must be built withinthe boundaries of the City.

Since the mandated construction of 4,200 units may fairly beanalogized to a single proposal for federal action of the sorttriggering NEPA, at least with respect to some identifiableconditions, there is Second Circuit authority for conducting acomprehensive EIS sooner rather than later, at least to theextent that environmental impacts are reasonably foreseeable.In the Huntington litigation, the Corps of Engineers arguedthat the EIS of a dumpsite need not and could not includeconsideration of the types, quantities and cumulative effectsof dredged wastes to be deposited there. The court of appealsrejected that argument. It accepted that the agency was notrequired to "ferret out every possible alternative," or includein the EIS "mere speculation as to future events," but stressedthat "the possibility that the WLIS III site would be utilizedby two federal projects involving 560,000 cys of waste wascertainly foreseeable." Huntington I, 859 F.2d at 1141. Thecourt also said:

We do not take issue with particular conclusions reached by an agency after it has taken a "hard look" at environmental factors involved. See City of New York v. U.S. Dep't of Transp., 715 F.2d [732] at 748 (2nd Cir. 1983) (NEPA mandates no particular substantive outcomes).

However, it is improper to defer analysis of the types, quantities and cumulative effects of waste dumping when designating a new waste disposal site.

Id. at 1143 (emphasis in original).

The prospective additional waste of Yonkers stands in in parimateria with the prospective waste in Huntington. We do notknow where the scattered-site subsidized housing units will bebuilt in the City, but we do know that, under presentconditions at least, all the sanitary waste their residentsgenerate will flow to one disposal site.

HUD makes an alternative argument with respect to the sewageproblem. The Federal Clean Water Act, 33 U.S.C. § 1251 et seq.,requires the governors of each state, following publication offederal guidelines, to identify each area within the state"which, as a result of urban-industrial concentrations or otherfactors, has substantial water quality control problems," and,in respect of each such area, to designate its boundaries andan organization "capable of developing effective areawide wastetreatment management plans . . ." § 1288(a)(2). The statutealso creates a National Pollutant Discharge Elimination Systemwhich requires a permit for the discharge of pollutants intonavigable waters. The federal Environmental Protection Agency("EPA") is authorized to delegate permit issuing responsibilityto the states; in New York that delegation has in fact beenmade to the New York State DEC. Thus the waste water treatmentfacility serving Yonkers and a number of other WestchesterCounty communities, operates under a permit issued by DEC.

In these circumstances, HUD argues that "it would be bothinappropriate and wasteful" for HUD to undertake "anindependent analysis of the capacity of the water treatmentfacility." Post-argument brief at 7. HUD relies upon NewEngland Coalition v. United States Nuclear RegulatoryCommission, 582 F.2d 87 (1st Cir. 1978), which involved theNRC's proposal to construct a nuclear power plant at Seabrook,New Hampshire. The NRC bore the responsibility for complyingwithNEPA, but the EPA was also involved, because the statutoryscheme required that before the plant could be put intooperation it must get a license from the EPA to dischargethermal pollution into the waters around Seabrook. The EPAcould not issue such a license unless it at first determinedthat the plant's design could assure "the protection andpropagation of a balanced, indigenous population of shellfish,fish, and wildlife in and on the body of water into which thedischarge is to be made." 33 U.S.C. § 1326(a); see discussion582 F.2d at 98.

In those particular circumstances, the First Circuit acceptedthe NRC's argument that NEPA did not require that agency toperform an independent evaluation of the plant's environmentalimpact upon the navigable waters. The First Circuit said onthat point:

There is no dispute that NEPA requires the NRC to factor any anticipated marine pollution into its cost-benefit analysis of the Seabrook application. The NRC accepts this duty but argues that it is justified in refusing to reach an independent judgment about matters determined by the EPA because those matters are committed by law to the special expertise of the EPA and because repetitious adjudication of the issue would be wasteful. The NRC argues, and we agree, that it can properly limit its concern to deciding whether permits should be issued given the aquatic impact as determined by EPA and other environmental impacts as determined by NRC.


HUD analogizes the federal EPA in New England Coalition tothe state DEC in the case at bar, and argues from that analogythat neither HUD nor the FHIO are required to give any separateconsideration to the cumulative effect of sewage resulting fromthe 4,200 units. I agree that the circumstances in New EnglandCollation are somewhat similar, but I do not think that casecarries HUD to the conclusion of its argument. The licensingauthority exercised by the EPA in New England Coalitionsquarely and fully addressed the environmental concern whichthe NRC would otherwise have been required to confront. In thecase at bar, the permit authority delegated to DEC addressesonly the problem of discharge of pollutants into the navigablewaters. See 33 U.S.C. § 1311, 1312, 1342. But a legitimateconcern arises with respect to a potential "back-up" ofwastewater into the streets and homes of Yonkers: pollution, asit were, at the other end of the pipeline. The problems may berelated within the broader context of waste treatmentmanagement, but they have separate elements, beyond the scopeof the single issue presented in New England Coalition.

Therefore I reject HUD's argument that no consideration needbe given to the comprehensive environmental impact of sewage atthis time. That is not to say that, in beginning to address theissue, FHIO and HUD cannot consult with the DEC, as indeed HUDconsulted with other state agencies on the analysis of trafficimpact in the SER.

I conclude that plaintiff is entitled to a declaratoryjudgment that NEPA and the pertinent regulations requirepreparation of an EIS at this time with respect to the impactof 4,200 additional housing units in the City of Yonkers uponthe City's waste disposal system.

Plaintiff and the City make the same argument with respect totraffic. There the argument is less clear-cut. As the SER onthe 200 public housing units shows, analysis of traffic impactinvolves the streets in the immediate vicinity of theparticular site, and also the impact upon the City's mainthoroughfares. It is not possible to conduct the first analysisuntil the sites have been chosen. But the affidavit of trafficengineer Leonetti focuses upon Central Park Avenue, which hedescribes as "the major North-South thoroughfare in the City."Affidavit at ¶ 5. Leonetti calculates that at presentapproximately 36,000 vehicle trips are made on Central ParkAvenue daily. He further calculates that the development of4,200 new housing units within the City boundaries would resultin a 35% increase intraffic volume on Central Park Avenue. Id. at 5-7. At firstblush this would seem to be a high estimate, given the overallpopulation of the City; I would be surprised if the residentsof the contemplated 4,200 units would increase the overallcar-driving population of Yonkers by 35%. However, the presentstate of the record permits no more informed judicial analysisthan that; and the point presently at issue is HUD's refusal toeven consider the matter.

I conclude that plaintiff is entitled to a declaratoryjudgment that NEPA and the pertinent regulations require theFHIO and HUD to attempt an EIS with respect to the cumulativeimpact of 4,200 additional housing units upon vehicular trafficin the main thoroughfares of Yonkers (as opposed to the streetsand intersections in the immediate vicinity of sites yet to beselected). Such an EIS may ultimately prove to be impractical.But I conclude that the agencies are required to try, and totry at this time.

In reaching these conclusions, I reject HUD's argument thatthe mandated number of housing units relieves it and the FHIOfrom any obligation to prepare any cumulative environmentalimpact statements with respect to numbers-related conditions.

The Yonkers litigation, began ten years ago and augmented bythe case at bar, involves two areas of public policy: fairhousing, and protection of the environment. Assumingarguendo that full implementation of the remedial housing orderwould have a significant adverse impact upon the environment,it does not follow that environmental concerns wouldpredominate. In Amoco Production Co. v. Village of Gambell,480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542, the Supreme Courtsaid of an analogous environmental statute:

Congress clearly did not state in ANILCA that subsistence uses are always more important than development of energy resources, or other uses of federal lands; rather, it expressly declared that preservation of subsistence resources is a public interest and established a framework for reconciliation, where possible, of competing public interests.

480 U.S. at 545-46, 107 S.Ct. at 1404 (footnote omitted) (emphasis in original).

NEPA does not require that a federal agency, "in selecting acourse of action, must elevate environmental concerns overother appropriate considerations." Karlen, supra, at 227, 100S.Ct. at 500. Still less need a district court do so. In everycase, the Chancellor in equity "must balance the competingclaims of injury and must consider the effect on each party ofthe granting or withholding of the requested relief." Amoco,supra, at 542. "Where plaintiff and defendant present competingclaims of injury, the traditional function of equity has beento arrive at a `nice adjustment and reconciliation' between thecompeting claims." Weinberger v. Romero-Barcelo, 456 U.S. 305,312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1982) (citing andquoting Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587,591-92, 88 L.Ed. 754 (1944)) (Federal Water Pollution ControlAct gives district court discretion to grant or deny aninjunction for statutory violations). "The essence of equityjurisdiction has been the power of the Chancellor to do equityand to mould each decree to the necessities of the particularcase. Flexibility rather than rigidity has distinguished it."Hecht Co. v. Bowles, supra, at 329, 64 S.Ct. at 592.

While these cases for the most part consider the propriety ofa particular injunctive order, their rationale will inform thisCourt in the case at bar, should it eventually become necessaryto reconcile or choose between competing public interests.

This case contains at least the potential — I put it nohigher than that — of competition between the public interestsof fair housing and environmental protection. The presentprocedural posture is awkward, with one judge of the Courtpresiding over the fair housing aspect of the litigation, andanother over the environmental aspect. Clearly only one judgecan reconcile or resolve any conflict between those competingpublic interests. In my view, at least, that must be the judgewhohas presided over the fair housing litigation for the pastdecade. But to provide the background for an informedevaluation of potentially competing public interests, it isnecessary that the cumulative environment impact assessmentscontemplated by NEPA and the regulations be timely performed.It is in aid of that objective that I grant plaintiff relief tothe extent indicated in this Opinion. In all other respects,his motion is denied.

Settle Order and Judgment consistent with this Opinion on ten(10) days' notice.


1. The cited case ("Huntington II") reversed the districtcourt's injunctive order. An earlier opinion, Town ofHuntington v. Marsh, 859 F.2d 1134 (2d Cir. 1988) ("HuntingtgnI"), affirmed the district court's grant of declaratory relief.

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