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NAGE v. RUMSFELD

July 30, 1976

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, et al
v.
DONALD M. RUMSFELD, et al



The opinion of the court was delivered by: CLARENCE C. NEWCOMER

MEMORANDUM AND ORDER

 Newcomer, J.

 July 30, 1976.

 This action was brought by the National Association of Government Employees, the City of Philadelphia, and numerous individuals, to enjoin the closing of the Frankford Arsenal because the Department of the Army had not complied with the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. ("NEPA"). The defendants have filed a motion to dismiss the action on the grounds that the plaintiffs lack standing, that they fail to state a claim for relief under NEPA, and that they are barred from obtaining equitable relief by laches. On May 24, 1976, we held a hearing on the defendants' motion to dismiss and the plaintiffs' motion for preliminary injunction. By agreement of the parties, this hearing was consolidated with the trial on the merits pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure. We hold that the plaintiffs have failed to state a claim for relief under NEPA, and that their action must be dismissed.

 FACTUAL BACKGROUND

 On November 22, 1974, the United States Department of Defense and the Department of the Army announced their decision to close Frankford Arsenal, and to transfer its missions and functions to other Federal facilities. The closing is to be completed by July, 1977, and will result in the elimination of approximately 3,500 civilian jobs in Philadelphia. The Army expects that the closing of the Frankford Arsenal will accomplish savings of approximately $ 24 million per years, after the one-time costs associated with the closing are incurred. The closing of the Frankford Arsenal is an integral party of the Army's plan to realign and restructure the entire armanent community, which was approved on December 2, 1975.

 The defendants have admitted that the closing of the Frankford Arsenal is a major Federal action, and that it is part of a major realignment of components involving numerous installations and activities. The defendants have also admitted that no Environmental Impact Statements was ever prepared, and that the studies and reports used in arriving at the decision to close Frankford Arsenal were designed "For Official Use Only - Close Hold." This designation was intended to prevent persons who were not actually involved in the decision making process from examining the studies and reports. The decision to close Frankford Arsenal was made without consulting State or local agencies or private groups, and no outside group was informed of the Army's plans to close Frankford Arsenal until that decision was announced on November 22, 1974.

 Both before and after November 22, 1974, numerous studies were made concerning the closing of the Frankford Arsenal. The initial study (Defendants' Exhibit 2) had concluded that the closing would have no significant impact on the environmental, although it might be controversial for social and economic reasons. This study was reviewed by various offices in the Department of the Army, and was updated in November, 1974 (Defendants' Exhibit 4). The Army also contracted with Arthur D. Little, Inc. to perform a study of the impact on the Philadelphia area of the closing of the Frankford Arsenal (Defendants' Exhibit 5). This study concluded that the closing would have no adverse environmental effects, and would have a negligible impact on the overall economy of Philadelphia, due to the size of the City. These studies (Defendants Exhibits 2 through 7) were in existence prior to the Army's decision to close Frankford Arsenal, and they show that the Army did consider environmental and economic impacts of the decision.

 After the initial decision to close Frankford Arsenal was announced on November 22, 1974, the Army continued to reevaluate the effects of the closing. (Defendants' Exhibits 8 through 11). The more recent environmental assessment (Defendants' Exhibit 10) concluded that there would be no significant adverse environmental effects, but noted that there could be adverse effects on law enforcement, fire protection, judicial services, child care, mental health services, and transportation. The earlier environmental assessments had not discussed these possible impacts. The more recent study also concluded that the closing of the Frankford Arsenal could have a significant socio-economic impact, and again this issue was not discussed in the initial environmental assessment.

 Frankford Arsenal comprises 264 buildings on 110 acres, bounded on one side by the Delaware River. At trial the plaintiffs presented testimony from representatives of the police and fire departments of Philadelphia that if the Frankford Arsenal were completely abandoned, the City would have to provide additional fire and police services because vacated buildings can become a major source of crime and fire problems. The increased costs for fire protection have been estimated as approximately $ 550,000 per year, and for police protection, approximately $ 1.4 million per year. However, a witness for the Army testified that a caretaker force would remain at Frankford Arsenal after it was closed, and would include the present fire company and a guard force. This would reduce or possibly eliminate the cost increases projected by the plaintiffs.

 The closing of the Frankford Arsenal undoubtedly will have an important economic impact on the Philadelphia area. The Army estimated that the area would incur losses of more than $ 107 million in wages, purchases of goods and services, school subsidies and taxes. Moreover, the total impact of the loss will be much greater due to the multiplier effect. The loss of 3,500 jobs will aggravate unemployment in an area where unemployment is already over 10%.

 Any delay of the Army's decision to close Frankford Arsenal would delay the entire process of restructuring the armament community that has already begun. Any such delay would entail lost savings of approximately $ 3 million per month. In addition, substantial sums have already been spent to implement the decision to close Frankford Arsenal, and several hundred employees have been terminated or transferred.

 Finally, the plaintiffs in this action have been involved in two prior lawsuits to prevent the closing of the Frankford Arsenal. National Association of Government Employees v. Schlesinger & Hoffmann, 397 F. Supp. 894 (E.D. Pa. 1975), aff'd, 523 F.2d 1051 (3d Cir. 1975); City of Philadelphia & Brown v. Rumsfeld, C.A. No. 75-1405 (E.D. Pa. November 3, 1975), aff'd C.A. No. 76-1090 (3d Cir. April 15, 1976). The plaintiffs had ample opportunity to present ...


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