956 (2d Cir. 1976), where it was held that a federal agency employing a consulting firm for preparation of an environmental impact statement must bear responsibility for the ultimate work product.
The Beaver County Planning Commission, the Redevelopment Authority, and Direction Associates, Inc., must therefore be dismissed from this suit.
B. Federal Responsibility to File an Impact Statement
The HCDA makes very clear that NEPA duties are transferred from the federal agency to the grant applicant. However, the plaintiff argues that although a federal impact statement for an individual HCDA project is rendered unnecessary, the fact that HUD is approving large numbers of applications for funds for urban development projects creates a separate responsibility to consider the aggregate environmental effects of these projects. We cannot agree.
There is substantial case law establishing that large projects may not be artificially segmented into smaller ones for the purpose of avoiding NEPA or minimizing the appearance of adverse environmental impact. City of Rochester v. U. S. Postal Service, 541 F.2d 967 (2d Cir. 1976); Alpine Lakes Protection Soc. v. Schlapfer, 518 F.2d 1089 (9th Cir. 1975). A major federal project may require an impact statement for itself and still be part of a larger federal scheme requiring a separate, more encompassing impact statement. Sierra Club v. Morton, 169 U.S.App.D.C. 20, 514 F.2d 856 (D.C. Cir. 1975) rev'd on other grounds, 427 U.S. 390, 96 S. Ct. 2718, 49 L. Ed. 2d 576 (1977). Many of the cases which have ordered programmatic impact statements to cover the cumulative effects of a series of government projects have involved highway construction. E. g., Indian Lookout Alliance v. Volpe, 484 F.2d 11 (6th Cir. 1973); Patterson v. Exon, 415 F. Supp. 1276 (D.Neb.1976); Appalachian Mountain Club v. Brinegar, 394 F. Supp. 105 (D.N.H.1975). In the Appalachian Mountain Club case, the New Hampshire District Court held that the "piecemealing" of highway projects, without an overall assessment of the effects of the completed highway, violated "the spirit and letter" of NEPA. A North Carolina District Court held another environmental impact study inadequate where it dealt with a watershed project and failed to consider future downstream flooding or the cumulative effect of several adjoining stream projects. National Resources Defense Council, Inc. v. Grant, 355 F. Supp. 280 (S.D.N.C.1973). Similarly, the Department of Agriculture failed to meet NEPA standards in its analysis of the effect of commercial logging in a wilderness area when it ignored what future sites would be logged and at what rate. Minnesota Public Interest Research Group v. Butz, 541 F.2d 1292 (8th Cir. 1976).
These cases establish that federal projects may not be viewed myopically where they will have a cumulative or aggregate impact on the human environment. This is obviously true where separate projects are close in geographical proximity or where they combine as links in a chain, as in the highway cases. However, the fact that a centralized agency of the government, such as HUD, approves numerous urban redevelopment projects all across the country does not, of itself, require that HUD prepare a programmatic preview to comply with NEPA. There has been no allegation that there are other projects closely related to this one which will combine with this one to make the whole effect greater than the sum of the parts. In Environmental Defense Fund v. Armstrong, 356 F. Supp. 131 (N.D.Calif.1973), where the environmental study preceding construction of a dam was challenged, a California District Judge wrote, "(so) long as each major federal action is undertaken individually and not as an indivisible, integral part" of a larger system, NEPA requirements may be met on an individual basis rather than on a comprehensive one. While we might not go so far as to say that a series of projects must be indivisible before a combined statement will be required, we believe that precedent requires the projects to be substantially related to one another before a programmatic federal impact statement will be required. Although it might be wise or useful for HUD to analyze the environmental changes wrought by many separate redevelopment projects under Urban Redevelopment Action Grant funding across the country, it is certainly not required by NEPA. Therefore, we hold that neither HUD nor its Secretary abused their discretion in failing to file a comprehensive federal impact statement on the effects of this project. However, we cannot dismiss these defendants without reviewing further responsibilities imposed by APA.
C. Federal Responsibility to Evaluate or Monitor the Environmental Review and Procedures of the County
The last three issues concern the extent of the federal defendants' duties under HCDA and APA to critically evaluate the grant applicants' environmental review and to monitor compliance with HUD and NEPA regulations.
As we noted earlier, the HCDA intended to provide federal monies for projects which would be primarily planned and executed by local authorities, minimizing red tape and administrative delay. To require HUD to make an independent environmental analysis, where the grant applicant has assumed that duty, would be duplicative, wasteful, and contrary to the spirit as well as the explicit provisions of the act. The question, then, is how much of a critical evaluation the federal agency must make in order to comply with its APA responsibilities but without duplicating the efforts of the County.
The plaintiff attacks specific findings of the County's environmental analysis, including lack of consideration of the chronic particulate count in air quality, omission of increased vehicular traffic and increased noise levels, insufficient documentation that there are no historic properties in the area, characterization of the area as "blighted," and so on. While in no way minimizing the importance of these factors to the community, we cannot see how these factors could be critically reviewed by HUD without that agency performing its own independent study. This is particularly true where a grant applicant submits a detailed and documented review record that is at least facially consistent and in compliance with the applicable rules. In Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F. Supp. 238 (E.D.Pa.1970), where a state had fully investigated the impact of a secondary highway project and certified its recommendation to the Secretary of Transportation, the Secretary was not required to make an independent evaluation that would simply duplicate the state's efforts. This holding makes good sense where another agency has explicitly agreed to be responsible for its environmental findings to the extent of agreeing to be sued in federal court in place of the federal agency. See 42 U.S.C. § 5304(h)(3)(D)(ii). Although a "pro forma" environmental review is not sufficient under NEPA where the federal agency bears the primary responsibility, Sierra Club v. Lynn, 502 F.2d 43 (5th Cir. 1974), Cert. denied 421 U.S. 994, 95 S. Ct. 2001, 44 L. Ed. 2d 484 (1975), the environmental record is no longer the burden of the federal agency under HCDA. Therefore, we hold that neither the Secretary nor HUD has an independent duty to evaluate the conclusions of an environmental review record where such a record is facially complete and in accord with HUD regulations. We also note that NEPA has never required that federal decisions turn on the extent of impact to the environment, only that the environment be considered objectively and in good faith. Sierra Club v. Morton, 510 F.2d 813 (4th Cir. 1975).
However, the APA requires administrative agents and agencies to be vigilant that regulations are followed. Here, it appears from the plaintiff's allegations that the County failed to adequately comply with a HUD regulation requiring notice to "interested parties" involved in an Urban Development Action grant project.
Federal regulations implementing the HCDA, published at 24 C.F.R. § 5817(b) provide:
Public and dissemination. Copies of the Notice of Intent to File an (environmental impact statement) shall be sent to the local news media, Individuals and groups known to be interested in the applicant's activities, local, state, and Federal agencies, the A-95 clearinghouse and others believed appropriate by the applicant. Such notice shall be published at least once in a newspaper of general circulation in the affected community, and shall be filed with the HUD official authorized to receive the application. (emphasis added).
Although the county did publish notices concerning this project in the local newspaper on two separate occasions, the plaintiff claims that it never notified the individuals most directly interested in, and affected by, the proposed project those whose properties would ultimately be condemned.
Citizen participation is a vital ingredient in the success of NEPA. Many cases have reviewed the extent of public participation provided by federal agencies before deciding to proceed with a federal project adversely affecting the environment. E. g., Hanly 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); National Helium Corp. v. Morton, 486 F.2d 995 (10th Cir. 1973), Cert. denied 416 U.S. 993, 94 S. Ct. 2405, 40 L. Ed. 2d 772 (1973). An opportunity for local citizens or other interested parties to participate in the preparation of the environmental analysis is Mandatory under NEPA. National Ass'n. of Government Emp. v. Rumsfeld, 418 F. Supp. 1302, 1307 (E.D.Pa.1976). We agree with Colony that the property owners in the redevelopment area are arguably the most interested parties to be found.
It may be that failure to provide proof of notice of the project to these landowners pursuant to 24 C.F.R. § 5817(b) rendered the application submitted by the county facially incomplete and in violation of the applicable regulations so that the federal agency's responsibility under the APA, 5 U.S.C. § 706(2)(B), (C) to be sure that statutory and procedural requirements have been met was triggered. However, we need not decide that because even if the grant application appeared complete and in compliance with all the applicable regulations, the federal agency has since been put on notice by Colony that an important procedural step may have been omitted. One district court has held that it is appropriate for a federal court to review the propriety of urban redevelopment grants where agency action is attacked under the APA, 5 U.S.C. § 706(2). City of Hartford v. Hills, 408 F. Supp. 889 (D.Conn.1976). That case held that the approval by the Secretary of HUD of a grant application without considering generally available information which may have contradicted the application was an abuse of discretion. Here, we need hold only that the failure of the federal defendants to review the sufficiency of notice to interested parties and to require notice, once such a serious omission was alleged, requires that the federal defendants remain parties to this suit until such allegation can be aired at a hearing. Failure to respond to these allegations may be a violation of the federal duty to monitor the project to see that all procedural steps were properly followed. We need not reach the question of the actual sufficiency of the 24 C.F.R. § 5817(b) notice on the motion to dismiss.
To summarize: we hold that neither HUD nor its Secretary had a legal obligation under NEPA to prepare a separate environmental impact statement; nor did they have a duty to critically evaluate the Substance of the environmental analysis prepared by the County as a grant applicant under the HCDA. However, the federal defendants did have a duty under the HCDA, 42 U.S.C. § 5304(c)(3), and the APA, 5 U.S.C. § 706(2)(B), (C), to review the grant applicant to see that Procedural requirements were met and that applicable federal regulations were followed. Once put on notice that a serious procedural omission may have occurred, the federal defendants had a duty to monitor compliance with the regulation allegedly omitted. Failure to notify such interested parties as the affected property owners in the area covered by the environmental analysis where they are relatively few in number and the plan contemplates condemnation of their properties is a sufficient allegation of a procedural omission to require action by the federal entities as the overseers of an urban redevelopment project.
The motion of the federal defendants to dismiss the claims against them will therefore be denied. An appropriate order will be entered.
© 1992-2004 VersusLaw Inc.