Before Waterman, Hays and Feinberg, Circuit Judges.
This case raises important issues under the National Environmental Policy Act of 1969, 42 U.S.C. § 4331 et seq., a statute whose meaning is more uncertain than most, not merely because it is relatively new, but also because of the generality of its phrasing. Thus the Act recognizes "the profound influences of . . . high-density urbanization . . . [and] the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man," and declares it the "continuing responsibility of the Federal Government to use all practical means . . . to . . . assure for all Americans safe, healthful, productive and esthetically and culturally pleasing surroundings." To achieve that and similar objectives, the Act sets up a system of procedures for federal agencies to follow in making decisions that might have an impact on the environment. The basic issue before us is whether the Act was complied with in the planning for a ninestory federal jail in back of the United States Court House in Manhattan, just across the street from two large apartment buildings. Plaintiffs, who include some owners of these apartments, allege that defendants violated the Act. Excavation on the project began in mid-February 1972, and a short time later plaintiffs sought a preliminary injunction in the United States District Court for the Southern District of New York against further construction work. On March 17, 1972, Judge Charles H. Tenney denied the injunction. Since the matter was urgent, we expedited the appeal. Because we believe that defendants have failed to comply adequately with the Act, we reverse in part the order of the district court.
Plaintiffs, including Reverend Denis Hanly, Pastor of Transfiguration Church, 29 Mott Street, sue for themselves and on behalf of a class of "residents, merchants, businessmen, institutions, religious organizations and other members of the public living within the area." Plaintiffs are all members of the Chatham Square Civic Committee for a Planned Community, a non-profit group concerned with the development and protection of that portion of lower Manhattan called the Civic Center. Although that area contains many government buildings, including several courthouses, surprisingly at least 50,000 people live there and in adjacent Chinatown. Included in that group are over 3,000 persons living in approximately 660 cooperative apartments in two buildings called Chatham Towers and Chatham Green. These directly face the proposed new jail, some 100-150 feet away. The apartments, constructed in the last decade, have many individual terraces, and there are lawns and play areas around the buildings.
The principal defendant is the United States; plaintiffs have also joined as defendants John M. Mitchell, as Attorney General,*fn1 Robert L. Kunzig, as Administrator of General Services, and Norman A. Carlson, as Director of the Federal Bureau of Prisons. The proposed construction is called the Foley Square Courthouse Annex, but it actually consists of two nine-story buildings.*fn2 One, on the southerly portion of the site, will be a conventional office building containing about 127,000 square feet of interior space. It will house the relocated offices of the United States Attorney and the United States Marshal for the Southern District of New York and the Joint Strike Force Against Organized Crime. The other building, on the northerly portion of the site, will contain about 200,000 square feet and will be the Metropolitan Correction Center (MCC). Although plaintiffs formally attack the entire project, this building draws most of their fire. The MCC is designed to provide modern detention facilities for 449 prisoners, including an infirmary, a diagnostic center for psychiatric problems and a community treatment center for outpatients as well as inmates. Since the MCC is intended to replace the overcrowded and inadequate Federal Detention Center now located at West Street in Manhattan, it is probable that the new building will service not only prisoners involved in prosecutions in the Southern District but also prisoners from the Eastern District, and perhaps from New Jersey.
Plaintiffs seek to enjoin defendants from proceeding further with excavation and construction of both buildings and also pray for money damages. This appeal, however, concerns only the denial of preliminary injunctive relief. The theory of plaintiffs' complaint is that defendants were required by the National Environmental Policy Act to take certain preliminary steps before beginning excavation and construction and that they did not do so. Judge Tenney held that the General Services Administration (GSA) had considered "all of the environmental factors relevant to the construction of the Annex," and that GSA's conclusion that the Annex "will not have a significant adverse impact on the environment" was "not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." Judge Tenney further concluded that plaintiffs did not demonstrate a likelihood of success on the merits or irreparable harm if the injunction was not issued and that the balance of equities rested with defendants.*fn3 From those rulings plaintiffs appeal.
Plaintiffs properly disclaim any attempt to argue before us the merits of the proposed building project. They concede that the question on appeal is not whether the proposed buildings adjoining this Court House should be built, but whether the requirements of the National Environmental Policy Act have been met. In their complaint and in the district court, plaintiffs' main argument was that defendants have not complied with section 102(2) (C) of the Act, 42 U.S.C. § 4332(2) (C), which provides:
The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall-
(C) 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 on-
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as ...