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CITIZENS ADVY. COMM. ON PRIV. PRIS. v. U.S. D.O.J.

August 7, 2001

CITIZENS ADVISORY COMMITTEE ON PRIVATE PRISONS, INC., PLAINTIFF,
v.
UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF PRISONS, DEFENDANTS.



The opinion of the court was delivered by: D. Brooks Smith, Chief United States District Judge.

MEMORANDUM OPINION AND ORDER

In December 1998, Cornell Corrections Inc. ("Cornell") submitted a proposal to the Federal Bureau of Prisons ("Bureau") to house over 1,000 federal inmates in a private prison that it hoped to build in Clearfield County, Pennsylvania. In April 1999, the Bureau awarded Cornell the contract and Cornell moved forward with construction of the new facility. Within weeks, plaintiff Citizens Advisory Committee on Private Prisons, Inc. ("CACOPP" or "plaintiff")*fn1 sued the Bureau and the United States Department of Justice ("defendants"), seeking to enjoin the construction of this new prison. In particular, plaintiff claimed that defendants had failed to comply with the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321-4327 (1994), a statute that requires federal agencies to consider environmental consequences before committing significant resources to a project. Basically admitting that it had violated NEPA, the Bureau ordered a halt to all work on the new facility and began to re-examine the environmental impact of the project. In March 2000, it issued an environmental assessment ("EA") in which it concluded that construction of the new prison would not have a significant effect on the environment.

The question before me is whether this conclusion, and the process employed to reach it, satisfies NEPA's requirements. My own conclusion comes in three (3) parts. First, I conclude that the Bureau violated NEPA when it initially awarded the contract to Cornell and allowed construction on the project to proceed without taking a "hard look" at the environmental consequences of the project. Second, I consider whether the Bureau cured this initial violation by stopping work on the project and re-evaluating the project's environmental consequences. While I acknowledge that this is a question not susceptible of easy resolution, I ultimately conclude that the Bureau did cure its initial violation.

Finally, I examine the Final EA prepared by the Bureau in March 2000 and uphold the Bureau's decision that the Clearfield County project will not have a significant effect on the environment. Accordingly, I hold that the defendants have satisfied NEPA's requirements, and I will allow the Clearfield County project to proceed.

I

On August 5, 1997, the United States Congress enacted the National Capital Revitalization and Self-Government Improvement Act of 1997, Pub.L. No. 105-33, 111 Stat. 251. Among other things, the Act required the Bureau to house at least 2,200 District of Columbia Department of Corrections (DCDC) sentenced felons in private contract facilities by December 31, 1999. A.R. Vol. I, tab. 1.*fn2 In addition, the Act mandated that the Bureau place 50% of all DCDC inmates in private prison facilities by September 30, 2002. Id. Vol. I, tab 4, at 5.

In an effort to meet its obligations under the Act, the Bureau took two (2) immediate steps. First, it started to broadly consider the environmental consequences of this mandate to house DCDC inmates in private correctional facilities. On January 26, 1998, it published a notice in the Federal Register, in which it stated that it was going to prepare a Draft Program Environmental Impact Statement ("EIS"). Id. Vol. I, tab 4, App. A. The purpose of this Draft Program EIS was to analyze the environmental effects of moving 2,200 prisoners from public to private prison facilities. On January 28, 1998, the Bureau held a public meeting to discuss the substance of this Draft Program EIS. And in March 1998, it published this document. Id. Vol I, tab 4. In the Draft Program EIS, the Bureau concluded that housing prisoners in private facilities would not have an adverse effect on the environment. Id. Vol I, tab 4, Abstract. Accordingly, it decided to forge ahead with plans to find private contractors to house approximately 2,200 DCDC inmates by December 31, 1999. Id. After a brief public comment period, the Bureau issued a Final Program EIS that drew the same conclusions. Id. Vol. II, tab 5. Although the Final Program EIS discussed a broad range of environmental issues that might arise during the construction and operation of a private prison, it did not discuss any site in particular.

The second step taken by the Bureau was to issue a request for proposals for the housing of 2,200 DCDC sentenced felons in private institutions. Id. Vol. I, tabs 2 and 3. After a series of amendments, this solicitation was narrowed down to 1,000 inmates. Id. The solicitation stated that private institutions must begin accepting inmates by December 31, 1999. Finally, it required that each proposal be accompanied by a Draft EA. A.R. Vol I, tab 2, § J, Attach. 6. "In mandating the preparation of the [Draft] EA, the Bureau sought to ensure that each contractor/offeror understood" the need to consider alternative sites and to analyze the full-range of potential environmental impacts on any site that it proposed. Final EA, at I-3.*fn3

History has not been kind to the Clearfield County site. Past mining activities have taken their toll on much of the site, id. at III-1, 6-7, 29, and past disturbance to the vegetation is obvious. Id. at III-18. Additionally, past use for state-approved sludge nutrient recycling has left portions of the site with arsenic concentrations that exceed the applicable Pennsylvania health standard. Id. at III-30.*fn4

This history, however, can be deceiving. In fact, a picture of the area reveals a typical rural setting, for the most part sparsely covered with vegetation but thick with trees in limited areas. A.R. Vol. XI, tab 128. A diverse array of animal species, including birds, rabbits, squirrels, and even black bears live in the area and may venture into the site at any time. Final EA, at III-30.*fn5

Like the site itself, the surrounding area is rural. Clearfield County is Pennsylvania's fourth-largest county in total land area (1,144 square miles). Id. at III-31. Over three-quarters of the county is wooded and approximately six (6) percent is farmland. Id. at III-31-32. In 1990, the population of Clearfield County stood at 78,101, and was up to 79,724 by 1995. Id. at III-34. Philipsburg is just a mile from the proposed site across the border in Centre County and is one of the major centers of industry and mining in the northwest portion of Centre County. Id. Clearfield County has seen economic trouble over the past twenty (20) years. In 1999, its unemployment rate was 9.3%, well above the statewide and national averages. Id. at III-38-39. Between December 1998 and

April 1999, the Bureau's Contracting Officer, Mr. Scott P. Stermer, reviewed Cornell's proposal to build a prison on the Clearfield County site, along with a number of other proposals received by the agency. Dkt. no. 67, Ex. A, ¶ 7. In particular, he examined the following: (1) the alternative sites considered by the offerors; (2) the letters of support and opposition, if any, to the proposed projects; (3) any information that the offerors supplied to or received from federal, state, and local environmental authorities; (4) the proposed mitigation and environmental permit requirements; (5) any demographic studies on the proposed sites; and (6) the provision of emergency services at the proposed sites. Id.

As soon as residents from the Clearfield County area learned that Cornell had received a contract to build a prison in their area, letters for and against the proposed facility began pouring into the Bureau's Washington, D.C. office. Plaintiff's organization took the lead in expressing opposition to the project, gathering over 1,000 signatures of those opposed to the project and mailing letters to the Bureau on a daily basis. A.R. Vol. IV, tabs 18-29, 31-33, 35-43; id. Vol. V, tabs 55 & 57; id. Vol. VI, tab 57. Opponents of the project focused on the lack of public participation in the selection of the Clearfield County site, the environmental consequences of building on the proposed site, the impact that the site would have on local services, and health and safety concerns. Id. Vol. IV, tabs 18-29, 31-33, 35-43; id. Vol. V, tabs 55 & 57; id. Vol. VI, tab 57. While opposition to the project was vigorous, the more vocal response from members of the Clearfield County community was one of support. Id. Vol IV, tabs 44-52; id. Vol V, tab 53 (2,649 signatures in favor of the proposed project); id. Vol VII, tab 89 (575 signatures in favor of the project). In contrast to the opponents of the project, the supporters focused on one thing: jobs. Time and again, they explained their dire economic plight and noted that the prison would boost the County's sagging economy. Id. Vol IV, tabs 44-52; id. Vol V, tab 53; id. Vol VII, tab 89.

At the end of the day, neither public opposition nor support for the project altered Cornell's plans to move ahead with its contract. According to the contract, Cornell had to have the prison finished within 270 days, id. Vol. III, tab 12, at 40, and it moved quickly to achieve this goal. Within days of receiving its contract from the Bureau, Cornell applied for a building permit which it received on April 7, 1999. Final EA, at VIII, doc. no. 35, Attachs. B & C. A groundbreaking ceremony was held on May 24, 1999 and construction began the following day. Final EA, Ex. I-1. In the local newspapers, David Cornell, Chief Executive Officer of Cornell, claimed that the new facility would be built and ready for business by "the first quarter of 2000." Dkt. no. 1, Ex. 2.

On May 28, 1999, plaintiff filed a Complaint in this case, alleging violations of NEPA dkt. no. 1, and sought an order enjoining the construction of the new facility. Dkt. no. 2. NEPA requires federal agencies, like the Bureau, to take the environmental factors into account before proceeding with major federal actions. 42 U.S.C. § 4332; 40 C.F.R. § 1501.1 (2000); Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 371 (1989). In addition, NEPA mandates that agencies prepare an EIS for any major federal project that will "significantly affect[] the quality of the human environment." 42 U.S.C. § 4332(2)(C)(i). In its Complaint, plaintiff argued that the Bureau had failed to comply with NEPA on two fronts. First, it claimed that the Bureau failed to consider environmental issues before awarding the prison contract to Cornell. Second, it argued that the Bureau failed to prepare an EIS. Dkt. no. 1.

For the most part, plaintiff was right. At the time construction began on the Clearfield County facility, the Bureau's compliance with NEPA was lacking. First, the Bureau awarded the contract before it adequately examined the environmental effects of the Clearfield County project. For instance, it awarded the contract without receiving complete information about whether any endangered species lived on or near the site, A.R., Vol. IV, tab 13, at III-9-11, without fully examining wetlands on the proposed site, id.; see also id. Vol. IV, tab 15, without performing geotechnical testing or taking soil samples, id. Vol. IV, tabs 13 & 15, and without receiving any comments or suggestions from the EPA, the Department of Agriculture, or the Fish and Wildlife Service. Id. Second, the Bureau completely failed to consider alternative sites for the private prison. Id. Vol. IV, tab 13, at II-1. Finally, the Bureau never made its finding of no significant impact ("FONSI") available to the public before it awarded the contract to Cornell.

No doubt recognizing that it had failed to follow the letter and the spirit of NEPA, the Bureau issued a Stop-Work Order on the Cornell contract on June 11, 1999. Final EA, at I-15.*fn6 The purpose of this Order was to allow the Bureau to re-evaluate the environmental documentation supporting the award of the contract. Dkt. no. 9, Ex. 1, ¶ 11; Final EA, at I-15. At that time, the Bureau indicated that it would conduct its re-evaluation in accordance with its regulations and the regulations of the Council on Environmental Quality ("CEQ") which implement NEPA. Dkt. no. 9, ¶ 12. The Bureau further promised that it would prepare an EA and, based on this EA, decide whether it should prepare an EIS or whether the project could go ahead based on a FONSI. Id. Finally, the Bureau noted that if it determined that "a FONSI is appropriate and that preparation of an EIS is not warranted," it would "cancel the Stop-Work Order, thereby allowing resumption of the work under the contract." Id. ¶ 13.

True to its word, the Bureau began re-evaluating the environmental impact of the Cornell project in June 1999. By August, it had prepared and published a Draft EA for public consumption. A.R. Vol VIII, tab 111. In this Draft EA, the Bureau concluded that the construction of a prison on the Clearfield County site would not significantly affect the environment. Id. Vol. VIII, tab 111, Abstract. It analyzed, but rejected, other alternatives, such as cancelling the contract to Cornell and awarding it to another contractor, cancelling the contract and re-initiating the solicitation process, or abandoning the project altogether. Id. Vol. VIII, tab 111, at III-1-3. Following the publication of the Draft EA, the Bureau allowed a public comment period of thirty (30) days. Final EA, at I-5. And on September 9, 1999, it held a public hearing in Philipsburg, Pennsylvania to discuss the contents of the Draft EA. Id. This public comment period resulted in a number of objections to the Draft EA from members of the public, the Commonwealth of Pennsylvania, and various federal agencies. The most vocal opposition came from members of plaintiff's organization. For example, on September 9, 1999, Mr. Chris Bungo, plaintiff's Chairman sent a lengthy letter to the Bureau commenting on the inadequacy of the Draft EA. Id. at VIII, doc. no. 35, at 1. Bungo explained that, as of the submission of the Draft EA, there was no public involvement in the NEPA process. Id. "Despite numerous attempts by our group to have questions answered on this subject," Bungo wrote, "the group has been ignored and to date our questions and concerns have not been addressed." Id. Bungo then detailed the plaintiff's objections to the adequacy of the Draft EA. For one, Bungo believed that Cornell did not have the legal authority to run a private prison in Pennsylvania. Id. at VIII, doc. no. 35, at 5 & Attach. C. Second, he claimed that the Bureau performed an inadequate analysis of the environmental consequences of the proposed project. Id. at VIII, doc. no. 35, at 2. Additionally, he demanded further studies on water supply, id. at 14, transportation, id. at 15, geology, id. at 16, and aesthetics, id. at 17.

The Commonwealth of Pennsylvania also raised objections to the proposed facility. On September 2, 1999, Martin Horn, the Secretary of the Department of Corrections for the Commonwealth, expressed his concerns with the Draft EA. In particular, he explained that "a single, free-standing correctional facility is hardly ever equipped to handle prison disturbances such as riots and escapes, let alone natural disasters." Id. at VIII, doc. no. 5. Secretary Horn also commented that such a correctional facility was illegal under Pennsylvania law. Id. "[T]here is no provision under PA law for such a correctional institution to hold individuals from outside the Commonwealth of Pennsylvania against their will," he explained. "Only institutions authorized by the General Assembly to act as correctional institutions . . . may operate as prisons." Id. Pennsylvania Attorney General Mike Fisher also expressed his view that private prisons were illegal in Pennsylvania. Id. at VIII, doc. no. 35, Attach. C.

Finally, the EPA raised serious concerns about the adequacy of the Draft EA. Id. VIII, doc. no. 26. In a September 17, 1999 letter to the Bureau, Richard Pepino, the Director of the Office of Environmental Programs at the EPA succinctly stated the following: "[w]e believe that the process that has been pursued by the Bureau for this project is seriously deficient." Id. For one, Pepino noted that the Bureau had not acted in the spirit of "full disclosure" throughout the awarding and implementation of its contract. Id. Phone calls and letters from the EPA requesting information about the Clearfield County facility routinely went unanswered. Id. Second, Pepino stated that "[i]f construction of the prison was . . . commenced in Philipsburg, then this fact alone renders the Draft EA very seriously flawed. Such action represents a significant commitment of resources by your agency and casts the alternatives analysis in an entirely different light. . . ." Id. Third, the EPA noted that the Draft EA did "not demonstrate NEPA compliance with the initial award of the contract. . . . The obvious implication here is that the Clearfield County site was already selected before release of this Draft EA, and therefore selected in the absence of NEPA compliance." Id. Finally, the EPA stated its opinion that a FONSI was inappropriate in this case and it recommended that the Bureau withdraw its Draft EA and issue a Draft Environmental Impact Statement. Id. The EPA reiterated these concerns in a letter that it wrote to the Bureau on December 16, 1999. Id. VIII, doc. no. 40.

After considering the public comments on its Draft EA, the Bureau issued a Final EA and a FONSI on March 21, 2000. FONSI, at 1-2.*fn7 This Final EA addressed most of the environmental concerns raised during the public comment period. For instance, it discussed topography, geology, soils, hydrology, biological resources, cultural resources, hazardous substances, aesthetics, community services, land use, utilities, transportation, noise, and air quality. Final EA, at III-IV. It also discussed various alternatives to proceeding with the Clearfield County facility, including abandoning the project altogether or beginning the bidding process all over again. Id. at II.

The Bureau again set aside a thirty (30) day period for public comments, FONSI, at 1-2, and as expected, it received a number of objections to the project. Plaintiff objected to the Bureau's Final EA and claimed that further study was needed before the project could proceed. A.R. Vol. X, tab 125. And the EPA renewed its objections to the Bureau's NEPA compliance, id. Vol. XI, tab 127, explaining that the Bureau had not followed the procedural requirements of NEPA and that the consideration of alternatives contained in the Final EA was inadequate. Id. After taking these and other public comments into consideration, the Bureau decided to go ahead with the Clearfield County project. On August 7, 2000, it issued a Record of Decision ("ROD") in order to implement its decision to proceed with the contract awarded to Cornell. Id. Vol. XI, tab 138. According to the ROD, the Bureau had determined that lifting the Stop Work Order "does not significantly affect endangered species, cultural resources, air quality, traffic, noise, land use or the quality of the human environment and therefore, an Environmental Impact Statement will not be prepared." Id. Vol. XI, tab 138, at 5. Despite its FONSI, and the ROD implementing that decision, to date, the Bureau has not lifted its Stop-Work Order and work on the project has not resumed. Dkt. no. 67, at 20.

Apparently still not satisfied, plaintiff filed an Amended Complaint in September 2000, reasserting the allegations in its original Complaint and adding a few more. Dkt. no. 45. Once again, it sought an order enjoining the Bureau from proceeding with the Clearfield County project until it prepared an adequate EIS. Id. at 43-45. After the Bureau filed the Complete Administrative Record concerning its decision to build the Clearfield County facility, the parties filed cross-motions for summary judgment. Dkt. nos. 58 & 66. It is these summary judgment motions that are before me today.

II

Although the legal questions posed by this case are complex, the statutory framework is simple. NEPA sets forth a "broad national commitment to protecting and promoting environmental quality." Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 (1989) (citing 42 U.S.C. § 4331).*fn8 Prior to NEPA's passage, "environmental considerations were systematically underrepresented in the federal agency decision-making process." North Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1539-40 (11th Cir. 1990). Accordingly, to ensure that environmental considerations become a part of agency decision-making, NEPA places certain procedural duties upon federal agencies. First, it requires agencies to take a "`hard look' at [the] environmental consequences" of their actions, Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21 (1976) (citation omitted), so "that environmental concerns are integrated into the very process of agency decision-making." Morris County Trust for Historic Preservation v. Pierce, 714 F.2d 271, 274-75 (3d Cir. 1983) (citing Andrus v. Sierra Club, 442 U.S. 347, 350 (1978)). Second, it requires agencies to inform the public of the environmental consequences of their decisions, Limerick Ecology Action v. NRC, 869 F.2d 719, 725 (3d Cir. 1989), thereby guaranteeing that the public is involved in and aware of agency processes. Id.; see also State of New Jersey Dep't of Envtl. Prot. v. Long Island, 30 F.3d 403, 409 (3d Cir. 1994) (noting that NEPA assures that agencies consider environmental impacts and make this information available to the public); Concerned Citizens Alliance v. Slater, 176 F.3d 686, 705 (3d Cir. 1999) (same). NEPA is essentially a procedural statute. While NEPA's procedural requirements are specific and important, the statute "itself does not mandate particular results." Robertson, 490 U.S. at 350; Concerned Citizens Alliance, 176 F.3d at 705 ("NEPA exists to ensure a process, not to ensure any result") (citation omitted).

If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs. . . . Other statutes may impose substantive environmental obligations on federal agencies, but NEPA merely prohibits uninformed — rather than unwise — agency action.

Robertson, 490 U.S. at 350-51. Stated another way, "an environmental review under NEPA does not necessarily dictate any substantive outcome: the statute is merely intended to make decision makers aware of the potential environmental ramifications of their actions." Morris County Trust, 714 F.2d at 274-75.

The "heart and soul" of NEPA's procedural requirements is the environmental impact statement or EIS. Id. at 274. Under the terms of the Act, all federal agencies must prepare an EIS for major federal actions "significantly affecting the quality of the human environment. . . ." 42 U.S.C. § 4332(C).*fn9 The EIS "`insures the integrity of the agency process by forcing it to face those stubborn, difficult-to-answer objections without ignoring them or sweeping them under the rug' and serves as an `environmental full disclosure law so that the public can weigh a project's benefits against its environmental costs.'" National Audubon Society v. Hoffman, 132 F.3d 7, 12 (2d Cir. 1997) (citation omitted).

In the present case, the Bureau did not prepare an EIS when it awarded the contract to Cornell in April of 1999 or when it decided to lift the Stop-Work Order in March 2000. Instead, in both instances, the agency prepared an environmental assessment or EA. The regulations implementing NEPA state that an EA is "a concise public document . . . that serves to: (1) Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact; (2) Aid an agency's compliance with the Act when no [EIS] is necessary; and (3) Facilitate preparation of a[n] [EIS] when one is necessary." 40 C.F.R. § 1508.9(a).*fn10 As this definition alone demonstrates, the EA and the EIS play different roles in the NEPA framework. An EA is a prelude to an EIS and it examines a proposed project solely to help the agency decide whether to prepare an EIS. See 40 C.F.R. § 1501.4 (b)&(c), 1508.9(a). After the EA is complete, it can be used by the agency to either "[f]acilitate preparation of (an EIS) when one is necessary," id. § 1508.9(a)(3), or help the agency prepare a finding of no significant impact, id. § 1508.13, if the agency determines on the basis of the EA not to prepare an EIS. Id. § 1501.4(e). Plaintiff challenges the Bureau's NEPA compliance on three (3) fronts. First, it argues that the agency failed to comply with NEPA when it awarded the contract in question to Cornell in April 1999. Second, it contends that the Bureau failed to "cure" its initial violation even though it stopped work on the project and prepared a Final EA in March 2000. Finally, it claims that the Final EA is wholly inadequate because the Clearfield County project will have a significant effect on the quality of the human environment. See 42 U.S.C. § 4332(C). Plaintiff urges this Court to remand this matter to the agency for the preparation of an EIS. Both parties have filed summary judgment motions addressing these issues.

Summary judgment is a proper vehicle for resolving these questions. Summary judgment is appropriate where admissible evidence fails to demonstrate a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Often, there are no "genuine disputes of material fact" in cases such as the present one because the facts at issue are confined to the Administrative Record before the Court. Clariton Sportsmen's Club v. Pennsylvania Turnpike Authority, 882 F. Supp. 455, 463 (W.D.Pa. 1995) (Cindrich, J.). "Instead, the disputes lie in the legal issues of whether and to what extent the [a]genc[y] complied with the procedural requirements of NEPA. . . ." Id.; see also James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir. 1996) (district courts reviewing agency action generally do not resolve factual issues, "but operate instead as appellate courts resolving legal questions").

In resolving the dispute before me, however, three (3) general principles must act as my guide. First, review of an agency's decision under the Administrative Procedure Act ("APA") is limited to "the whole record or those parts of it cited by a party." 5 U.S.C. § 706. This section refers to the administrative record before the agency at the time it made its decision. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-20 (1971), overruled on other grounds Califano v. Sanders, 430 U.S. 99, 105 (1977). The Supreme Court has repeatedly stated that "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts, 411 U.S. 138, 142 (1973). In cases where the agency certifies that the Administrative Record is full and complete, the "court assumes that the agency properly designated the Administrative Record absent clear evidence to the contrary." Ammex, Inc. v. United States, 62 F. Supp.2d 1148, 1156 (C.I.T. 1999) (quoting Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993)). In the instant case, the Bureau has filed an Administrative Record that includes all the documents considered by it in making its decision to proceed with the Clearfield County project without preparing an EIS. In addition, the Bureau has certified that the record in this case is true and complete. Dkt. no. 48, ¶ 8. Accordingly, my inquiry will be limited to the Administrative Record before the Bureau at the time it made its decisions, first to award the contract in question and then later to proceed with the project.*fn11

Second, in reviewing the Bureau's decision, I must apply the familiar arbitrary and capricious standard from the APA, 5 U.S.C. § 706(2)(A). Society Hill Towers, 210 F.3d at 178.*fn12 On the one hand, this standard is meaningful: a district court must conduct a searching and careful inquiry into the record of the case. Overton Park, 401 U.S. at 416. The court must determine whether the agency's decision was "based on a consideration of the relevant factors and whether there has been a clear error of judgment." Society Hill Towers, 210 F.3d at 178 (quoting Overton Park, 401 U.S. at 415-17). On the other hand, the arbitrary and capricious standard is deferential and narrow. "The court is not empowered to substitute its judgment for that of the agency." Id. (quoting Overton Park, 401 U.S. at 415-17). Once the district court is satisfied that an agency's exercise of discretion is truly informed, "[it] must defer to `th[at] informed discretion.'" Marsh, 490 U.S. at 377 (quoting Kleppe, 427 U.S. at 412).

Finally, the plaintiff has the burden to establish that the agency's decision violated NEPA. Lower Alloways Creek, 687 F.2d at 747. This responsibility "cannot be discharged merely by baldly asserting, without supporting proof or evidence, that significant effects will accompany a proposed action." Id. Rather, the plaintiff must "advance specific allegations tending to indicate that the agency somehow misapplied the law, misinterpreted the evidence, overlooked certain testimony, or [improperly] reached its `no significant impact' determination." Id.*fn13 Only if plaintiff can show a "`substantial possibility' with sufficient clarity [that] the agency's decision . . . violates NEPA" will an agency's decision be overturned. Sierra Club v. Marsh, 769 F.2d 868, 870 (1st Cir. 1985) (Breyer, J.).*fn14

III

Plaintiff first claims that the Bureau violated NEPA when it awarded the contract to Cornell in April 1999. Defendants do not dispute this. In fact, they concede that the Bureau's "initial oversight in awarding the contract prior to the finalization of its NEPA process was a technical violation of NEPA." Dkt. no. 67, at 17. Nevertheless, in an effort to minimize the impact of this initial violation, defendants cite Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978), in which the Supreme Court explained that "a single alleged oversight on a peripheral issue, . . . must not be the basis for overturning a decision properly made after an otherwise exhaustive proceeding." While I agree that the Bureau violated NEPA, I disagree with defendants' characterization of this initial violation. The Bureau's initial NEPA infraction was more than just an "oversight on a peripheral issue." Id. It was a significant violation of both the letter and the spirit of NEPA. By awarding the contract in question to Cornell in April 1999 and commencing construction on the new prison before completing the NEPA process, the Bureau violated NEPA's most basic requirements in two (2) ways.

A

First, it failed to take a "`hard look' at [the] environmental consequences" of the prison project, Kleppe, 427 U.S. at 410 n. 21 (citation omitted), before deciding to award the contract. Perhaps the most basic NEPA requirement is one of timing: agencies must take the environmental consequences of their proposed actions into account before they commit to a project. 40 C.F.R. § 1501.2 (requiring that "[a]gencies . . . integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values. . . ."); see also Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 241 (3d Cir. 1980) (explaining that the timing issue "is a real one especially when private parties are permitted by a federal agency to make major construction expenditures in advance of consideration of environmental issues"). As the Supreme Court has explained, "by focusing the agency's attention on the environmental consequences of a proposed project, NEPA ensures that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast." Robertson, 490 U.S. at 349. Put another way, agencies must prepare NEPA documents, such as an EA, before making a commitment to a project. Metcalf v. Daley, 214 F.3d 1135, 1143 (9th Cir. 2000); Concerned Citizens of Bushkill Township v. Costle, 592 F.2d 164, 170 (3d Cir. 1979). Failure to do so is a violation of NEPA. Metcalf, 214 F.3d at 1143.

The Administrative Record in this case leaves no doubt that the Bureau failed to fully consider environmental issues before it committed to the Clearfield County project. The Bureau's most obvious failing is that it awarded the contract to Cornell and permitted construction on the project to commence before it had ever issued a Final EA or a FONSI. Id. at 1145 (holding that agency violated NEPA when it made a "firm commitment before preparing an EA"); Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988) ("An assessment must be `prepared early enough so that it can serve practically as an important contribution to the decision-making process and will not be used to rationalize or justify decisions already made.'") (citation omitted). This oversight, however, merely underscores a more important point: as of April 1999, at least, the Bureau's NEPA analysis was woefully lacking. For instance, the Bureau awarded the contract to Cornell: 1) before it received a response from the United States Fish and Wildlife Service ("FWS") about whether any endangered species lived on or near the site, A.R. Vol. IV, tab 13, at III-9*fn15; 2) before it thoroughly analyzed wetlands on the proposed site, id.; id. Vol. IV, tab 15; id. Vol. VII, tab 110(c), at 5; 3) before it performed geotechnical testing knowing that the site was formerly used as a strip mine, id. Vol. IV, tab 15; id. Vol. VII, tab 110(c), at 18; 4) before it took soil samples on the proposed site knowing that the site had been used for sludge nutrient recycling, id. Vol. IV, tab 13, at IV-6; id. Vol. IV, tab 15; 5) before conducting a full scale traffic impact study, id. Vol. IV, tab 16; and 6) before receiving any comments or suggestions from the EPA, Final EA, VIII, doc. no. 26, at 1, the Department of Agriculture, or the FWS. A.R. Vol. IV, tab 13, at III-9; id. Vol. IV, tab 15.*fn16

As further evidence that the Bureau did not take the requisite "hard look," the agency failed to consider any alternatives to the Clearfield County site before awarding the contract in question and allowing construction to commence. Id. Vol. IV, tab 13, at II-1. Under NEPA, all federal agencies must "[s]tudy, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative sites." 42 U.S.C. § 4331(2)(E). The CEQ and Bureau regulations implementing this provision also require that federal agencies discuss alternatives in any EA that they prepare. 40 C.F.R. § 1508.9(b); 28 C.F.R. § 61.6(c). For example, the Department of Justice regulations, which bind the Bureau, 28 C.F.R. § 61.3, state that the Bureau shall "[c]onsider those alternatives encompassed by the range of alternatives discussed when evaluating proposals for Department action. . . ." Id. § 61.6(c).

But what kind of alternatives must be discussed in an EA like the draft prepared by the Bureau in April 1999? The Supreme Court has explained that the range of alternatives considered by an agency is "bounded by some notion of feasibility." Vermont Yankee, 435 U.S. at 551. The consideration of alternatives is controlled by the "`rule of reason,' which governs both `which alternatives the agency must discuss' and `the extent to which it must discuss them.'" Tongass Conservation Society v. Cheney, 924 F.2d 1137, 1140 (D.C. Cir. 1991) (Ginsburg, J.) (quoting National Resources Defense Council, Inc. v. Hodel, 865 F.2d 288, 294 (D.C. Cir. 1988)). Accordingly, agencies do not have to consider "alternatives that are `remote and speculative,' but may deal with circumstances `as they exist and are likely to exist.'" National Resources, 865 F.2d at 295 (citations omitted). A "proposed alternative is reasonable only if it will bring about the ends of the federal action." Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991) (Thomas, J.). Put another way, "where the agency has examined a breadth of alternatives but has excluded from consideration alternatives that would not meet the goals of the project, the agency has satisfied NEPA." Concerned Citizens Alliance, 176 F.3d at 706.

While the alternatives analysis in an EA need not be rigorous,*fn17 it must be more than is contained in the April 1999 Draft EA. What is most troubling about the Bureau's discussion of alternatives in its Draft EA is that there is no discussion at all. In fact, nowhere does the Bureau point to and discuss any alternative sites in this document. Instead, it merely refers to the Clearfield County site as the "preferred alternative" and discusses the potential environmental impact of that project alone. A.R. Vol. IV, tab 13, II-1. This does not mean that no alternatives to the Clearfield County site existed at the time. To the contrary, the document acknowledges that there are other sites that "constitute reasonable alternatives," id., yet nowhere does the Draft EA discuss these other alternative sites. Indeed, the Administrative Record demonstrates that other reasonable alternatives existed at the time the initial contract was awarded in April 1999 and that some environmental analysis had been performed on these sites. A.R. Vol. IV, tab 14; id. Vol. VII, tab 110(b); id. Vol. X, tab 125, at 2-3 & Attach. H. Clearly, the Bureau's failure to adopt these alternatives to its proposed site would not violate NEPA. Society Hill Towers, 210 F.3d at 183. But an acknowledgment that other alternatives existed and were "reasonable" and then a blatant failure to address these alternatives, constitutes a clear disregard for NEPA's requirements. 42 U.S.C. § 4331(2)(E); 40 C.F.R. § 1508.9(b); 28 C.F.R. § 61.6(c).

In failing to prepare a Final EA or FONSI, Metcalf, 214 F.3d at 1143-45, in failing to adequately consider environmental issues, Protect Key West, Inc. v. Cheney, 795 F. Supp. 1552, 1559-60 (S.D.Fla. 1992), and in refusing to analyze alternative sites that it considered "reasonable," 42 U.S.C. § 4331(2)(E); 40 C.F.R. § 1508.9(b); 28 C.F.R. § 61.6(c), the Bureau violated the letter and the spirit of NEPA when it awarded the contract in question to Cornell and allowed construction on the project to commence. NEPA's procedures are meant to focus agency attention on "the environmental consequences of a proposed project," before "resources have been committed or the die otherwise cast." Robertson, 490 U.S. at 349. The unique facts of this case demonstrate why compliance with these procedures is so vitally important. The Bureau decided to award the contract to Cornell before performing two (2) crucial pieces of environmental investigation: a geotechnical study; and a study of soil samples. In each instance, the Bureau conducted the relevant studies only after it awarded the contract and, in one case, only after construction on the project began. In each instance, the relevant studies uncovered potential environmental problems with the proposed site. Had the Bureau been thoroughly aware of these problems ahead of time, it might have altered its decision not to prepare an EIS, or perhaps even decided to forego the project altogether. Unaware of these issues, however, the agency moved ahead, blind to the potential environmental consequences of its action. This result is precisely what NEPA was meant to prevent. Id.

First, the agency never performed a geotechnical study until after the contract was awarded and, then, only days before construction began. Final EA, App. K. The purpose of the study was to examine the effect that past mining activity would have on the proposed site during and after construction. A.R. Vol. IV, tab 15. Completed more than six (6) weeks after the award of the contract, the study concluded that "there is a strong possibility for mine subsidence in the Women's Facility area and the northwest area of the Men's Facility/YRA." Id. at 3. In particular, the study noted that a number of Coal Seams found under the proposed site were within the range where "[m]ine subsidence can occur on open ground, [and] no structures need be present. If subsidence has not already occurred, there is a very high potential of subsidence with the addition of any structures." Id. at Mine Subsidence Criteria (emphasis added). With regard to these areas, the study concluded that such areas "must be investigated" and that they "demand[] detailed study before construction." Id. After becoming aware of the great potential for subsidence, the Bureau concluded that implementation of sound building practices was the only measure needed to mitigate the risk. Final EA, at IV-5. Second, the agency never took adequate soil samples of the proposed site until after the contract had been awarded and construction had commenced. When the contract was awarded in April 1999, the Bureau had not yet conducted soil samples on the proposed site. A.R. Vol. IV, tab 13, at III-11; id. Vol. IV, tab 15. Later studies, however, showed that portions of the site had arsenic concentrations that exceeded the applicable Pennsylvania health standard. Final EA, at III-30. On June 8, 1999, nearly two (2) weeks after construction on the new facility had begun, Cornell's Vice-President Martin H. Wiebe recommended that further testing on the arsenic be done to determine whether the arsenic concentration was within the normal limits of soil in the Eastern United States. A.R. Vol. IV, tab 16. Later testing done by both the Bureau, Final EA, at III-30, the Pennsylvania DEP, A.R. Vol. XI, tab 136, and the EPA, id, confirmed that the arsenic at the Clearfield County site was within the range of naturally occurring levels of arsenic in the Eastern United States. Id. The problem with the Bureau's handling of both examples was not the ultimate result; it was the process itself. In both cases, the Bureau moved ahead with the project knowing full well that further study was needed, id. Vol. IV, tab 13, at III-11; id. Vol. IV, tab 15, but without informing itself of the extent of the environmental hazards posed by the proposed project. In one case, the Bureau even permitted construction on the facility to begin without knowing whether the arsenic threat was a serious one or not. Id. Vol. IV, tab 16. When he was on the First Circuit Court of Appeals, Justice Stephen Breyer succinctly described NEPA's purpose as follows:

NEPA is designed to influence the decision-making process; its aim is to make government officials notice environmental considerations and take them into account. Thus, when a decision to which NEPA obligations attach is made without the informed environmental considerations that NEPA requires, the harm that NEPA intends to prevent has been suffered. . . .

It is appropriate for the courts to recognize this type of injury in a NEPA case, for it reflects the very theory upon which NEPA is based — a theory aimed at presenting government decision-makers with relevant environmental data before they commit themselves to a course of action.

Sierra Club v. Marsh, 872 F.2d 497, 500 (1st Cir. 1989) (quoting Commonwealth of Massachusetts v. Watt, 715 F.2d 946, 952 (1st Cir. 1983)). Whether the Bureau's decision to award the contract in April 1999 was correct is not a matter that I am empowered to decide. Nonetheless, it is clear from the Administrative Record that it was an uninformed decision — a decision made with complete disregard for the potential environmental risks that the project might pose. Sierra Club, 872 F.2d at 500 (noting that the harm protected by NEPA is "the added risk to the environment that takes place when governmental decision-makers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment"). Under NEPA, such uneducated decisions cannot stand.

B

Second, the Bureau also violated NEPA in April 1999 when it failed to make a FONSI available for public review and comment before committing to the project. The CEQ regulations provide in relevant part:

In certain limited circumstances . . . the agency shall make the finding of no significant impact available for public review . . . for thirty days before the agency makes its final determination whether to prepare an environmental impact statement and before the action may begin. The circumstances are:
(i) The proposed action is, or is closely similar to, one which normally requires the preparation of an environmental impact statement under the procedures adopted by ...

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