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COLONY FED. S&L ASSN. v. HARRIS

January 8, 1980

COLONY FEDERAL SAVINGS & LOAN ASSOCIATION, Plaintiff,
v.
PATRICIA ROBERTS HARRIS, Secretary, Department of Housing and Urban Development and DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT and COUNTY OF BEAVER, PENNSYLVANIA and BEAVER COUNTY PLANNING COMMISSION and BEAVER COUNTY REDEVELOPMENT AUTHORITY and DIRECTION ASSOCIATES INC., Defendants.



The opinion of the court was delivered by: COHILL

This Court has before it the motions to dismiss filed by five of the six defendants in this action for declaratory and injunctive relief under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 Et seq., the Administrative Procedure Act ("APA"), 5 U.S.C. § 501 Et seq. and the Housing and Community Development Act ("HCDA"), 42 U.S.C. § 5301 Et seq. Resolution of these motions turns on an assessment of the defendants' various legal responsibilities to the plaintiff, the public and the environment under these acts.

The plaintiff is Colony Federal Savings and Loan Association ("Colony"), a banking institution with offices in Monaca, Pennsylvania. The defendants are the United States Department of Housing and Urban Development ("HUD"), and its Secretary, the County of Beaver, the Beaver Planning Commission, the Beaver County Redevelopment Authority, and Direction Associates, Inc., a consulting firm. Only Beaver County did not move to dismiss.

 The Acts and Regulations

 The National Environmental Policy Act, passed in 1969, reflects our country's increased awareness that routine decisions of government agencies may have profound and irreversible effects on the natural environment. Since our physical environment cannot speak for itself and might otherwise be overlooked, NEPA mandates that an environmental analysis precede every major federal project. The analysis must be formalized in an "Environmental Impact Statement" pursuant to section 102(2)(C) of NEPA, 42 U.S.C. § 4332(2)(C), which requires federal agencies:

 
(to) include in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment, a detailed statement . . . by the responsible official.

 Case law reaffirms that NEPA was enacted to protect the environmental interests of all citizens by making consideration of environmental factors a Primary duty of all federal agencies. City of Davis v. Coleman, 521 F.2d 661, 678 (9th Cir. 1975); Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1182-83 (6th Cir. 1972). The purpose of § 4332(2)(C) is to assure that agencies will be fully aware of the impact of their decisions before implementing them; it has been called the "environmental full disclosure law." Sierra Club v. Froehlke, 359 F. Supp. 1289 (D.Tex.1973).

 HCDA was enacted for purposes somewhat different from NEPA. In § 5301(c) Congress provided:

 
The primary objective of this chapter is the development of viable urban communities, by providing decent housing and a suitable living environment and expanding economic opportunities, principally for persons of low and moderate income.

 Although preservation of a healthy urban environment was an integral part of the statutory scheme, the primary thrust of the new legislation was economic. See § 5301(a)(1) and (2), § 5301(b), § 5301(c)(6). There is another difference between the acts: whereas NEPA is centripetal, directing the responsibility for environmental analysis to the federal agencies involved in projects subject to its terms, HCDA operates by centrifugal force, directing the responsibility for urban redevelopment to the local communities which benefit under its provisions. Sections 5303 and 5304 authorize the Secretary of HUD to approve grant applications by states or local communities pursuant to enumerated procedures. Limited discretion in disapproving applications is given to the Secretary under 42 U.S.C. § 5304(c), which provides:

 
The Secretary Shall approve an application for an amount which does not exceed the amount determined in accordance with section 5306(a) of this title unless
 
(1) on the basis of significant facts and data, generally available and pertaining to community and housing needs and objectives, the Secretary determines that the applicant's description of such needs and objectives is plainly inconsistent with such facts or data; or
 
(2) on the basis of the application, the Secretary determines that the activities to be undertaken are plainly inappropriate to meeting the needs and objectives identified by the applicant pursuant to subsection (a) of this section; or
 
(3) the Secretary determines that the application does not comply with the requirements of this chapter or other applicable law or proposes activities which are ineligible under this chapter. (Emphasis added.)

 Several sections of the Act emphasize that procedures are "streamlined" to provide assistance quickly and efficiently. See § 5301(b)(3) ("continuing effort at all levels of government to streamline programs"); § 5301(d)(1) ("provides assistance . . . with maximum certainty and minimum delay"); § 5304(b) (cutting red tape).

 The relationship between NEPA and HCDA was considered by Congress and explicitly provided for in § 5304(h)(1) of the latter. That section states:

 
In order to assure that the policies of the National Environmental Policy Act of 1969 are most effectively implemented in connection with the expenditure of funds under this chapter, and to assure to the public undiminished protection of the environment, the Secretary, in lieu of the environmental protection procedures otherwise applicable, may under regulations provide for the release of funds for particular projects to applicants who assume all of the responsibilities for environmental review, decisionmaking, and action pursuant to such Act that would apply to the Secretary were he to undertake such ...

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