Appeal by Commissioner of the New York State Department of Transportation from an order of the United States District Court for the Southern District of New York (Griesa, J.) dated October 31, 1983 which denied the State's application to modify an injunction concerning continued preliminary design and engineering work on Westway.
Meskill, Kearse, and Cardamone, Circuit Judges.
CARDAMONE, Circuit Judge:
This appeal is from an order denying an application to modify an injunction that called a halt to Westway, the proposed West-side super highway in Manhattan. The New York State Department of Transportation (State) appeals from an October 31, 1983 order of the United States District Court for the Southern District of New York (Griesa, J.) denying its application to modify an injunction in order to permit it to continue certain preliminary design and engineering work on the Westway project. Since this project has not entered its final administrative phase, this appeal does not present the ultimate question of whether Westway will in fact be built. What is before us is a skirmish along the way to that ultimate decision. The particular question for our decision is whether the State was properly enjoined from either applying for federal funds or spending its own funds for design and engineering work. We agree with the State that instead of maintaining the status quo while further study on the Hudson fisheries proceeds, the broad injunction granted by the district court on October 31 makes it nearly certain that Westway will not be built.
Following two trials before Judge Griesa and two decisions by this court in Sierra Club v. United States Army Corps of Engineers, 701 F.2d 1011 (2d Cir. 1983) (Kearse, J.), and Sierra Club v. Hennessy, 695 F.2d 643 (2d Cir. 1982) (Meskill, J.), it has now been established that the National Environmental Policy Act, 42 U.S.C. § 4332, (NEPA) and the Clean Water Act, 33 U.S.C. § 1344, were violated. At present, this constitutes the sole obstacle to Westway's construction. The details set forth in our previous decisions, familiarity with which is assumed, have thoroughly chronicled the Westway saga. Accordingly, the background of this highway project need only be stated in conclusory form.
The Westway project has been at different times from the early 1970's either a dream or nightmare of New York State governors and New York City mayors. As presently contemplated, the six lane mostly underground highway portion will run from the Battery to 42nd Street bordering the Hudson River on the West side of Manhattan. About 200 acres of the Hudson will need to be landfilled to complete the project. On the roof over the highway a 93 acre park will be planted. Residential and commercial development is also envisioned. Approval of Westway as a link in the interstate highway system made New York State eligible for 90 percent federal funding for the highway portion of the Westway project. When New York State filed a dredge-and-fill permit for the interpier area questions were raised of the landfill's effect on the Hudson River fisheries. The required Environmental Impact Statement (EIS) had been based on a 1973 survey conducted by one of the project's outside consultants and had, in substance, concluded that the interpier area was a "biological wasteland," i.e., few fish lived there. To say the least, this conclusion was an overstatement since samplings in 1979 showed a significant fish population in the interpier area. This fact was never fully revealed to the Army Corps of Engineers, which failed to make its own evaluation. In 1981 the Sierra Club instituted an action against New York and the Army Corps of Engineers. After a trial Judge Griesa found that the interpier area houses young striped bass -- one of America's good game and commercial fish -- and that this area of the Hudson is an important and productive habitat for them. He concluded that the EIS filed in 1977, based on the 1973 survey, violated federal law because it did not accurately report or adequately respond to the possible adverse effect of the Westway landfill upon the fish resources -- particularly striped bass -- of the lower Hudson. As a result, he set aside the landfill permit previously issued by the U.S. Army Corps of Engineers and early in 1983 directed it to conduct a further study of the fisheries issue and produce a suitable EIS addressing this problem before the project could continue.
With this background, we turn to the controversy presently before us. In a series of orders -- on April 14 and July 23, 1982 -- most of the construction work as well as applications by the State for federal funding were enjoined by Judge Griesa. On November 12, 1982, while appeals from the two previous orders were pending in this Court, a Supplemental Judgment signed by Judge Griesa modified those prior orders principally by permitting the State to continue certain activities, i.e., by authorizing the State to apply to the Federal Highway Administration for funding certain specific activities. In effect, the district court was allowing, as it said, "a holding operation so the organization and so forth remains in being, in case Westway goes forward at a later point." The authorization in the Supplemental Judgment, which by its own terms expired April 30, 1983, was later extended to authorize expenditures until July 31, 1983. Two weeks before that date the State moved for further modification of the earlier orders, requesting that additional planning and design work be permitted to go forward with federal funding for 15 months commencing on August 1, 1983. The State maintained that were the preliminary work to be stopped dead in its tracks in 1983, it would not be able to complete its contractual arrangements prior to the September 30, 1990 cut-off date for federal highway funding. After considering the State's argument, the district court on October 31, 1983 denied most of the relief sought and, in addition, enjoined the State from spending its own funds on the project.
From this order that denied the motion seeking modification of the orders of April 14 and July 23, 1982, the State has appealed. It contends that the district court's October 31 order converted what had been, in effect, a preliminary injunction arising from the earlier orders, into what was now a permanent one. The State further asserts that the district court misconstrued the import of the deadline in the Federal-Aid Highways Act, 23 U.S.C. § 101(b); that it considered irrelevant matters in reaching its decision, e.g., the unlikelihood of federal funding for the proposed work; and that the vague and contradictory terms of the order failed adequately to inform the State as to what acts are forbidden and what are permitted. Finally, the State urges that enjoining the State from spending its own funds on the planning and design of Westway constituted an abuse of discretion. Before undertaking to review the district court's injunction of October 31, it is necessary first to decide what type of injunction it is.
An injunction is an equitable remedy issued under established principles which guide courts of equity. A preliminary injunction is issued to maintain the status quo until there can be a hearing on the merits. See Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2d Cir. 1953); Gas & Electric Securities Co. v. Manhattan & Queens Traction Corp., 266 F. 625, 632 (2d Cir. 1920), appeal dismissed sub nom Begg v. New York City, 262 U.S. 196, 67 L. Ed. 946, 43 S. Ct. 513 (1923). A final or permanent injunction is granted only after a hearing on the merits, Capital City Gas Co. v. Phillips Petroleum Co., 373 F.2d 128, 131 (2d Cir. 1967), and may not be changed in the interest of the defendants if the purposes of the litigation as incorporated in the decree have not been fully achieved, United States v. United Shoe Machinery Corp., 391 U.S. 244, 248, 20 L. Ed. 2d 562, 88 S. Ct. 1496 (1968). An injunction is an ambulatory remedy that marches along according to the nature of the proceeding. It is executory and subject to adaption as events may shape the need, except where rights are fully accrued or facts are so nearly permanent as to be substantially impervious to change. See United States v. Swift & Co., 286 U.S. 106, 114, 76 L. Ed. 999, 52 S. Ct. 460 (1932). Thus, the nature and effect of the decree granting an injunction must be examined first when considering its modification.
A trial court's power to modify, like the power over all its orders, is inherent. Nonetheless Rule 60(b)(5) of the Federal Rules of Civil Procedure has stated this inherent power as a rule by noting that a court may relieve a party from a judgment where "it is no longer equitable that the judgment should have prospective application." When modifying a preliminary injunction, a court is charged with the exercise of the same discretion it exercised in granting or denying injunctive relief in the first place. But a court may modify a final or permanent injunction only where conditions have so changed as to make such relief equitable, i.e., a significant change in the law or facts. In United States v. Swift, supra, the Supreme Court indicated that modifying a permanent decree involves a balance between the policies of res judicata and the right of a court to apply modified measures to changed circumstances, or a balance between rights impervious to change as against those tentative and subject to changing conditions. See System Federation v. Wright, 364 U.S. 642, 647-648, 5 L. Ed. 2d 349, 81 S. Ct. 368 (1961).
The Sierra Club argues that the injunction which the State seeks to modify here is not akin to a preliminary injunction. In claiming that the injunction was "final" it argues that modification may only be granted in unusual circumstances. The State, on the other hand, asserts that the injunction in question is more in the nature of a preliminary injunction and that it is subject to modification when necessary to preserve the status quo. The State further claims that its application to modify should not have been judged by the stricter standard of a significant ...