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December 5, 1983

ELIZABETH DOLE, as Secretary of the United States Department of Transportation, JAMES S. GRACEY, as Commandant of the United States Coast Guard, WAYNE E. CALDWELL, as Commander of the Third Coast Guard District, JOHN K. MLADINOV, as Acting Commissioner of the New York State Department of Transportation, HENRY G. WILLIAMS, as Commissioner of the New York State Department of Environmental Conservation, and EDWARD I. KOCH, as Mayor of the City of New York, Defendants.

The opinion of the court was delivered by: POLLACK

MILTON POLLACK, Senior District Judge.

Plaintiffs Gerosa Incorporated and Gerosa Crane Service Co., Inc. (hereinafter "Gerosa") brought this action for declaratory and injunctive relief to set aside and vacate permits and certifications issued by certain of the defendants in connection with the South Bronx-Oak Point Link Project ("the South Bronx project"). This project calls for construction of a single-track trestle railroad bridge along the east bank of the Harlem River, in the Bronx, New York. The ultimate relief sought by plaintiffs is an injunction restraining the defendants New York State Department of Transportation ("NYSDOT") and the City of New York ("the City") from proceeding with the South Bronx project.

 The federal, state, and city defendants have moved, pursuant to F.R.Civ. P. 12(b)(1), 12(b)(6), 12(c), and 56, for dismissal or judgment adverse to plaintiffs.

 The Parties

 According to their complaint, plaintiffs own and use "approximately five hundred lineal feet of specially constructed heavy duty dock along the Harlem River shoreline." On such property, the plaintiffs jointly operate a heavy duty haulage and crane enterprise. Plaintiffs allege that construction of the proposed South Bronx project will permanently block all navigational access to their dock, and thereby cause severe economic harm to their business.

 The federal defendants are the Secretary of Transportation and officials of that department's subunit, the Coast Guard. Pursuant to the General Bridge Act, 33 U.S.C. § 525(b), and the regulations thereunder, 49 C.F.R. § 1.46(c)(7), these defendants are charged with the authority of approving and issuing permits for the construction of bridges over navigable waters of the United States. In addition, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., governs the conduct of these defendants with respect to its environmental consequences.

 The defendant NYSDOT has been the lead state agency with respect to the planning of the South Bronx project, and is charged with the administration and enforcement of various New York laws relating to railroads and transportation. As part of its planning role, NYSDOT assisted the Coast Guard in preparing the NEPA-mandated environmental assessment, draft environmental impact statement. See 42 U.S.C. § 4332(2)(D)(prescribing method for federal-state cooperation under NEPA).

 Also hailed into federal court by Gerosa is the Commissioner of the New York State Department of Environmental Conservation ("NYSDEC"). According to the complaint, NYSDEC has issued various permits and certifications for the South Bronx project which are required under New York law.

 The final defendant named in the complaint is the Mayor of the City of New York. Besides being an apparent beneficiary of the proposed south Bronx project, the City of New York's connection with the project has been relatively minor. According to the complaint, the New York City Planning Commission and the New York City Board of Estimate, acting apparently pursuant to state and city laws, have issued certifications and taken other actions necessary to the planning and progress of the project.

 Facts Underlying the Controversy

 NYSDOT plans shortly to commence construction of the South Bronx project, which calls for the erection of a fixed trestle railroad bridge running a length of 1.7 miles from approximately 162nd Street, Bronx, to the Harlem River Rail Yard at the Southern tip of the Bronx. Funds for the project are to come from New York state.

 The South Bronx project is, according to the defendants, the "linchpin" of a "Full Freight Access Program" initiated by NYSDOT in 1975 to improve the efficiency of rail freight services in New York City and Long Island. The Full Freight Access Program is an effort by the state of New York to eliminate two problems that presently exist with respect to freight rail service in the New York City metropolitan area: (1) bridges in the area do not provide sufficient vertical clearance for trailer-on-flatcar trains and many modern boxcars and (2) there is a substantial conflict between rail passenger service and rail freight service. According to the defendants these problems lead to rerouting of freight trains, costly delays, and ultimately to a decline in the metropolitan area's economic base.

 To make way for construction of the South Bronx project, New York State plans shortly to condemn property owned by Gerosa. Gerosa states that such condemnation will result in the elimination of the only heavy lifting dock facility in the Bronx. In connection with such condemnation, the state of New York, according to the state defendants' brief, intends to pay Gerosa just compensation and in fact has already made an offer as to plaintiff's property.

 Because the South Bronx project involves construction of a bridge over navigable waters of the United States, NYSDOT was required to obtain bridge permits from the Coast Guard pursuant to the General Bridge Act and regulations thereunder. Prior to the Coast Guard's issuance of those permits on January 12, 1983, the entire project was subject to an extensive administrative review process.

 An early step in this administrative review process was NYSDOT's submission to the Coast Guard on September 23, 1981, of an Environmental Assessment, pursuant to the requirements of NEPA. This document reviewed project alternatives and the expected environmental impacts of the proposed South Bronx project.

 After review of the Environmental Assessment, the Coast Guard decided that an environmental impact statement was required pursuant to NEPA, *fn1" and in January, 1982, the Coast Guard and NYSDOT jointly issued a Draft Environmental Impact Statement (DEIS). The DEIS considered four alternatives for the trestle bridge for the project, including a "no-build" option.

 In September, 1982, following public hearings on the impact of the proposed project on navigation and the environment and the preparation of studies concerning noise, water and air pollution, cultural resources, and socioeconomic conditions, the Coast Guard and NYSDOT published a Final Environmental Impact Statement (FEIS).

 In the FEIS, the Coast Guard and NYSDOT did not agree on the preferred route for the South Bronx project, the former favoring a shore route as the environmentally preferred alternative, the latter favoring an offshore route. This dispute was resolved by an October 20, 1982, letter in which NYSDOT chose the shore route as its alternative, and thus only the shore route was considered in the bridge permit application.

 On January 12, 1983, the Commandant of the Coast Guard, after considering the FEIS and the entire administrative record, issued the requisite permits for the project.

 Merits of the Dispute

 A. NEPA Claims

 The first set of claims in Gerosa's complaint are premised on NEPA and assert that the FEIS on which the Coast Guard relied in issuing permits for the South Bronx project is flawed and inadequate for a wide variety of reasons. In its brief addressing the instant motion, Gerosa explicitly waives several of its allegations under NEPA, obviously in recognition of their lack of merit. At the same time, however, Gerosa's brief advances inexplicably a novel claim not referred to in its complaint, namely that this Court must "enforce" statements in the FEIS which Gerosa reads as providing for the construction of a dock to replace the one which Gerosa will lose when the South Bronx project is constructed.

 At the outset, the defendants raise serious questions concerning Gerosa's standing to maintain any action under NEPA in the circumstances of this case. In essence, the defendants argue that the plaintiffs interest in this case is purely economic and has nothing to do with the environmental matters with which NEPA is concerned. More particularly, the defendants assert that Gerosa, unsatisfied with what it anticipates will be the result of the New York eminent domain proceedings, wants only a replacement dock for its business and is indifferent to the environmental impacts of the South Bronx project.

 As the most basic element of standing, Article III of the Constitution requires that a plaintiff in federal court show that "he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Valley Forge College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). The injuries associated with the loss of riverfront property and river access which the Gerosa business will suffer as a result of the South Bronx project clearly meet this "injury in fact" test.

 Less clear is whether plaintiffs' NEPA claims meet the additional requirement of standing, based on prudential principles, that the claims fall within "the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Id. at 475 (quoting Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970).

 Guidance as to the zone of interests protected under NEPA is found in Metropolitan Edison Company v. People Against Nuclear Energy, 460 U.S. 766, 103 S. Ct. 1556, 75 L. Ed. 2d 534, 51 U.S.L.W. 4371 (April 19, 1983). In that case, which held that NEPA did not require the Nuclear Regulatory Commission to consider the psychological health damage which might accompany the restarting of a nuclear power plant, the Supreme Court stated:

 [W]e think the context of the [NEPA] statute shows that Congress was talking about the physical environment -- the world around us, so to speak. NEPA was designed to promote human welfare by alerting governmental actors to the effect of their proposed actions on the physical environment.

 Id. at 4373.

 The defendants rely on several cases which they assert stand for the proposition that a party whose sole motivation in litigating a NEPA claim is economic self-interest does not have an interest within the environmental purview of the statute and therefore lacks standing. See Presidio Bridge Co. v. Secretary of State, 486 F. Supp. 288, 294 (W.D. Tex. 1978), aff'd 612 F.2d 578 (5th Cir. 1980), cert. denied, 449 U.S. 837, 66 L. Ed. 2d 44, 101 S. Ct. 112 (1980), (NEPA not a device "whereby plaintiffs with strictly economic interests would be allowed to thwart governmental activity under the guise of environmental interest"); Delaware River Port Authority v. Tiemann, 403 F. Supp. 1117, 1144 (D. N.J. 1975), vacated on other grounds, 531 F.2d 699 (3d Cir. 1976), (economic injury "does not fall within the zone of interests which NEPA seeks to protect"); Hiatt Grain & Feed, Inc. v. Bergland, 446 F. Supp. 457, 488 (D. Kan. 1978), aff'd, 602 F.2d 929 (10th Cir. 1979), cert. denied, 444 U.S. 1073, 62 L. Ed. 2d 755, 100 S. Ct. 1019 (1980); Zlotnick v. District of Columbia Redevelopment Agency, 2 E.L.R. 20235 (D.D.C. 1972), aff'd, 161 U.S. App. D.C. 238, 494 F.2d 1157 (D.C. Cir. 1974), cert. denied, 419 U.S. 963, 42 L. Ed. 2d 178, 95 S. Ct. 223 (1974).

 Although plaintiffs' primary motivation in pursuing the instant action may be economic -- it appears they would drop this action in all respects were they guaranteed a replacement dock facility elsewhere on the Harlem River -- the line of cases cited ...

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