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EAST 63RD ST. ASSN. v. COLEMAN

May 17, 1976

The EAST 63RD STREET ASSOCIATION et al., Plaintiffs,
v.
William T. COLEMAN, Jr., as Secretary of Transportation, U.S. Department of Transportation, et al., Defendants


Frankel, District Judge.


The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

The fashionable notion of "trade-offs," reflecting the pressures of a crowded world, describes aptly the often hard choices of policy and law affecting our environment. Those who govern the harried City of New York are commanded to discourage motor vehicle use and promote mass transit as one means of recapturing breatheable air for those who live and work here. Cf. Friends of Earth v. Carey, Docket No. 75-7497, 535 F.2d 165 (2d Cir. 1976). *fn1" But the blasting of subway tunnels and the placement of subway stations produce temporary and permanent environmental impacts noisome to those in the vicinity. The case now before the court, brought on as a crisis, portrays the poignant clash of interests wholly worthy but not wholly reconcilable.

 Plaintiffs are a group of relatively blessed people who live, in the words of one of them, among

 
"stately London plain [ sic ] trees, private brownstones and well-maintained, medium-sized cooperative and condominium buildings, as well as the First Church of Christ Scientist, at the Corner of 63rd and Park. These blocks are also rich in the history of New York as they contain the private homes of former Judge Seabury, in the courtyard of which Fiorello LaGuardia was inaugurated as Mayor of New York; the former unique architectural home of Gypsy Rose Lee, built by Lou Ziegfeld; the former home of George Kaufman, the playwright; and at East 63rd Street, the present home of Halston Frowick designed by the Architect, Paul Rudolf, which is the only new contemporary house built in the City of New York since 1948." *fn2"

 Described more fully, plaintiffs include homeowners' associations on Manhattan's East 63d and East 62d Streets, a cooperative apartment corporation, a rental apartment building owner, and individual home-owners in the affected areas.

 Defendants include as primary targets William T. Coleman, Jr., Robert E. Patricelli, and John Taylor, respectively Secretary of the Department of Transportation, and Administrator and Regional Administrator of the Department's Urban Mass Transit Administration, hereinafter sometimes referred to collectively as "DOT"; the Metropolitan Transportation Authority and the New York City Transit Authority; David L. Yunich, the Chairman of both those Authorities; Hugh Carey, the Governor of New York; Arthur Levitt, the State Controller; the City of New York and Abraham Beame, its Mayor.

 The overall project to which the law suit relates is a new subway now in the process of construction from Northern Boulevard in Queens to Central Park South between Sixth and Seventh Avenues in Manhattan. *fn3" The particular focus of the present case is one of the three stations on that subway line, to be located between Third and Park Avenues on East 63d Street, with four entrances on the corners of 63d Street and Third Avenue and two entrances on the corners of 63d Street and Lexington Avenue. *fn4"

 The gravamen of the complaint is that the "Environmental [Impact] Statement" (EIS) of the DOT, relating to the whole subway project, was fatally deficient with respect to the construction and effects of the East 63d Street Station, and that work on the station, which has now begun, should be enjoined pending correction of that wrong. The complaints against the EIS are arguments of substance in at least some respects, and they have been weighed with the care allowed by the emergency scheduling of this proceeding. It is important, too, that the EIS was issued in April 1973, and this action was not begun until May 7, 1976. Plaintiffs have defenses against the charge of laches, but not enough, as will appear, to obliterate that as a factor adverse to the motion now before the court for a preliminary injunction.

 The motion came on by order to show cause on May 7, 1976, when the action was filed. Upon the return day, May 12, after oral argument, the court temporarily restrained work on the station except for completion that day of some test holes (with plaintiffs' consent). Today, upon findings and conclusions which follow, the restraint will be vacated and the motion for a preliminary injunction denied.

 I.

 The pertinent facts are, with minor exceptions to be noted, undisputed. As the complaint alleges, and the EIS documents, the idea of building the new subway line was adopted by the Transit Authority in the early 1960's, and the location of the station in question was determined by December 1970. *fn5" Construction of the line has been approved by the New York State Legislature and Governor, as well as by New York City's Board of Estimate, City Council, and Mayor.

 In or before 1972 the New York City Transit Authority filed an application for federal capital grant assistance under the Urban Mass Transportation Act of 1964, 49 U.S.C. §§ 1601 et seq. (1970), to obtain a substantial portion of the projected cost of the line. It is not disputed that the granting of federal funds to assist the financing of the line constituted, in the language of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4331 et seq. (1970), "major Federal action significantly affecting the quality of the human environment." Accordingly, the EIS was prepared, circulated, and adopted as of April 16, 1973. The EIS announces that "[it] is the result of studies conducted by the New York City Transit Authority," reviewed by the proper federal authorities, and "takes into account" the results of a public hearing held by the Transit Authority on November 20, 1972. The speakers at that public hearing included representatives of the City of New York, of various Community Boards and Planning Boards, and of the Sierra Club. As stated in the EIS, "[no] speaker appeared in opposition to the Project. The only objection voiced at the hearing was to the acquisition of one of the properties required for the Project." Although there were various suggestions for changes of detail, the speakers were uniformly positive about the environmental advantages of building the subway line. Constantine Sidamon-Eristoff, the Transportation Administrator of the City of New York, said:

 
"When completed, the impact of the program will not only be measured in terms of better transportation but also in terms of an improved environment, as auto users are provided an alternative, attractive means of commuting."

 A speaker for the Sierra Club endorsed "without reservation the increased use and extensions of mass transit in our city," stipulating that stations should be placed to have "maximum feasible utility" for residents and users and should be constructed with due concern for "human amenities" for the users.

 Complaining at this much later date, the plaintiffs before us agree that the overall effects of the new subway line will be environmentally beneficial. Though they object, somewhat weakly, to its location and design, their main attack is upon the environmental impacts they will suffer while the East 63d Street Station is being built. Their legal target is the EIS, said to have been critically deficient in this aspect. Stated fully in plaintiffs' words (Complaint para. 43), the inadequacies of the EIS included, "among other things:"

 
"A. The EIS did not and does not describe the extent of excavation required for the 63d Street Station or the environmental impacts of such excavation and other related construction.
 
"B. The EIS did not and does not mention, much less analyze, the resulting visual blight, traffic congestion, air and noise pollution and similar impacts upon the residents of 63rd Street.
 
"C. The EIS did not and does not consider in any meaningful way (and, indeed, does not mention) alternatives to the 63rd Street Station, including possible alternative locations, reductions in the size thereof, reductions in the number of entrances, or alternative construction plans that could mitigate the adverse environmental impacts.
 
"D. The EIS did not and does not disclose the numbers of riders that would be expected to use 63rd Street Station upon its completion, or the resulting impacts on the residential neighborhoods in the vicinity of the Station.
 
"E. The EIS did not and does not mention, much less consider, the urban impacts, including possible increases in crime and heightened security problems, that might follow from the location and operation of the 63rd Street Station." *fn6"

 Omitting here the details of the several claims and prayers for relief, we deal with a motion to enjoin defendants preliminarily "from further proceeding with any action in furtherance of the construction of the subway station * * * or in furtherance of any activities related thereto which involve the cutting or removal of trees on or the excavation or other construction activities in 63rd Street between Park Avenue and Third Avenue, in Park, Lexington and Third Avenues in the vicinity of 63rd Street or on the adjacent sidewalks of such streets and avenues, or affecting the buildings and structures on such streets and avenues in such vicinity."

 II.

 Our starting point is plaintiffs' critique of the EIS. The principles governing this subject, though recent, are now familiar. The complaint and the EIS are to be tested by a standard which requires, not perfection, Environmental Defense Fund v. Corps of Engineers, 492 F.2d 1123 (5th Cir. 1974), but that the appropriate federal agency has gone through a process of "individualized consideration and balancing of factors -- conducted fully and in good faith * * *." Calvert Cliffs Coordinating Comm., Inc. v. Atomic Energy Comm., 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971). *fn7" Plaintiffs' objections have been appraised in that light, and are treated here in the language of their complaint and order of their presentation.

 
"A. The EIS did not and does not describe the extent of excavation required for the 63d Street Station or the environmental impacts of such ...

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