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U.S. v. 27.09 ACRES OF LAND

May 15, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
27.09 ACRES OF LAND, MORE OR LESS SITUATED IN THE TOWN OF HARRISON AND THE TOWN OF NORTH CASTLE, COUNTY OF WESTCHESTER, STATE OF NEW YORK; THE COUNTY OF WESTCHESTER; AND UNKNOWN OTHERS, DEFENDANTS. PURCHASE ENVIRONMENTAL PROTECTION ASSOCIATION, INC., AND ALLAN STONE, PLAINTIFFS, V. THE UNITED STATES POSTAL SERVICE, AND ANTHONY FRANK, AS ACTING POSTMASTER GENERAL OF THE UNITED STATES, DEFENDANTS.



The opinion of the court was delivered by: Lasker, District Judge.

These actions involve local opposition to the United States Postal Service's (the "Postal Service") condemnation of 23.24 acres of land (the "County parcel") belonging to Westchester County ("the County") and the Postal Service's potential condemnation of a portion of a 10.1 acre parcel owned by New York State (the "State parcel") for the construction of a large new General Mail and Vehicle Maintenance Facility ("the Facility") to replace existing facilities in Mount Vernon and White Plains, New York. The two parcels (collectively the "Airport site") are located in the Towns of Harrison and New Castle and are adjacent to the Westchester County Airport. The Postal Service has signed but has not filed a declaration of taking with respect to the State parcel.

Purchase Environmental Protective Association, a nonprofit group of more than 200 homeowners and merchants located near the Airport site, and Allan Stone, a member of the group and resident of Purchase (collectively "PEPA"), and the Town of Harrison and the Village of Harrison, New York (collectively "Harrison"), move to intervene in the condemnation action against the County parcel (the "County parcel action"). PEPA, as proposed defendant-intervenor, and the County also move for partial summary judgment,*fn1 or, in the alternative, for a preliminary injunction barring the condemnation of the County parcel until full compliance with the National Environmental Protection Act ("NEPA"), 42 U.S.C. § 4332, and various Postal Service regulations has been achieved. The Postal Service cross-moves to strike the second, fourth, seventh, eighth and eleventh affirmative defenses raised by the County, or, in the alternative, for summary judgment.

In the action instituted by PEPA to bar condemnation of the state parcel (the "State parcel action"), PEPA moves for partial summary judgment on counts I, III and VI of the complaint or for a preliminary injunction barring any further steps towards condemnation, based on the same grounds as its motion in the County parcel action. The Postal Service moves to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on ripeness and mootness grounds, or for summary judgment. Harrison moves to intervene.

BACKGROUND

In 1982 the Postal Service began evaluating sites for a new facility to replace its existing General Mail Facility ("GMF") in Mount Vernon, New York. The Postal Service had concluded that the Mount Vernon facility would not be able to handle a projected rapid rise in the volume of the County's mail (which now accounts for 1.5 percent of all mail in the United States) and that it lacked easy access to major transportation routes. Over the next few years several sites were evaluated according to specific criteria developed in a Preferred Area Environmental Assessment prepared for the Postal Service.

By November 1987 the Postal Service had decided to look for a site that would also be large enough to accommodate a new Vehicle Maintenance Facility ("VMF") to replace its existing facility in White Plains. On January 6 and 8, 1988, the Postal Service published in the Reporter Dispatch, a Westchester newspaper, notice of its intention to prepare an Environmental Assessment ("EA") for the Airport site. On February 19, 1988 a completed EA was issued which stated that, as a result of field studies and a review of environmental data on the site, "significant environmental impacts are not anticipated which cannot be mitigated. Therefore, an Environmental Impact Statement is not warranted."*fn2 The required 90 day period for public comment on the EA was to have run through May 4, 1988.

On February 23, 1988, four days after the EA was prepared, Deputy Postmaster General Michael S. Coughlin signed declarations of taking for the two parcels. On March 16, 1988, prior to the expiration of the public comment period for the EA, the Postal Service condemned the County parcel. PEPA then instituted suit against the Postal Service, seeking a temporary restraining order and preliminary injunction prohibiting condemnation of the State parcel until the Postal Service completed the NEPA review process. PEPA and Harrison also filed motions to intervene in the County parcel action.*fn3 The litigation was stayed by consent of the parties while the Postal Service considered alternative sites for the facility. However, on December 23, 1988, the Postal Service prepared a new EA for the Airport site, and set a new comment period to run from January 1, 1989 to April 1, 1989.*fn4 The present motions were made between January and March 1989, and the original motions to intervene were renewed at that time.

In the fall of 1989 Congress passed a bill restricting funding for the facility until February 1, 1990 and requesting that the Postal Service report back to the Appropriations Committee as of that date regarding possible alternative sites. Pursuant to this legislation, Representative Nita Lowey appointed an independent Citizens Advisory Committee on Site Selection (the "Advisory Committee") which worked with a consultant retained by the Postal Service to identify and evaluate alternatives to the Airport Site. On January 8, 1990 the Advisory Committee recommended three alternate sites for consideration by the Postal Service. However, the Postal Service submitted detailed objections to all of the sites recommended by the Advisory Committee and recently issued a revised EA for the Airport site, for which the public comment period expired on April 25, 1990.

I. THE NEPA CLAIM

The principal issue in the motions for partial summary judgment and the cross-motion to strike certain defenses is one of first impression in this circuit: whether the Postal Service must complete and fully comply with the NEPA environmental review process before condemnation. PEPA argues that the Postal Service's conceded failure to complete the NEPA review process prior to signing a declaration of taking on the State parcel and condemning the County parcel require that those legal actions be voided, or in the alternative, that no further actions be taken towards condemnation. According to PEPA, the Postal Service's attempted condemnation of the Airport site represents a commitment of resources (the estimated value of the State and County parcels is close to ten million dollars) towards construction of the facility which precludes unbiased consideration of less environmentally damaging alternative sites and predetermines the outcome of the NEPA review process prior to the incorporation and full review of public comments on the EA.

The relevant NEPA provision, 42 U.S.C. § 4332, states in pertinent part:

    The Congress authorizes and directs that, to
  the fullest extent possible: . . .
  (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 should be involved
  in the proposed action should it be implemented.
    (E) study, develop, and describe appropriate
  alternatives to recommended courses of action in
  any proposal which involves unresolved conflicts
  concerning alternative uses of available
  resources.

Implementing regulations require that with regard to a "major federal action," that will significantly affect the environment, a federal agency must prepare an Environmental Assessment ("EA") to determine if a more comprehensive study, an Environmental Impact Statement ("EIS") should be prepared or if a finding of no significant impact on the environment ("FONSI"), is appropriate.*fn5

The Postal Service concedes that it must comply with the requirements of NEPA because construction of the proposed facility constitutes a "major federal action," and that its actions to condemn the site were taken prior to completion of the public comment period for the EA, but asserts that compliance need not precede condemnation or the issuance of a declaration of taking.

PEPA argues that the Postal Service violated § 4332(C) by failing to complete preparation of an EA (including the incorporation of public comments), issue a formal FONSI and consider alternatives prior to condemning the County parcel and signing a declaration of taking with respect to the State parcel, thereby failing to allow meaningful public commentary as mandated by NEPA. PEPA argues that full compliance prior to condemnation is mandated by NEPA to ensure that the agency involved conducts a thorough and good-faith environmental review free of any preexisting commitment of resources, such as the funds committed to condemnation, which might cause the agency to forego consideration of less environmentally damaging alternative sites generated during the NEPA review process.

PEPA and the County rely on several cases which, they argue, held that NEPA compliance was required prior to condemnation or other legal actions such as the granting of licenses, loans or contract modifications. However, with two exceptions, the precise issue presented in this case — the timing of NEPA compliance vis-a-vis condemnation — was not addressed in the holdings of the cases cited. In Stockslager v. Carroll Electric Coop. Corp., 528 F.2d 949 (8th Cir. 1976), for instance, the court held that the anti-injunction statute, 28 U.S.C. § 2283, was not a bar to a district court injunction of state condemnation proceedings because the injunction was based on failure to comply with NEPA. The court stated:

  If an environmental impact statement is required,
  which we do not now decide, the entire process
  would be frustrated, if Carroll Electric is
  allowed to proceed with condemnation of lands and
  construction of the power line, because of loans
  that REA has already authorized.

Id. at 952. However, in Carroll Electric, the district court had enjoined all construction, except on lands condemned by the state. The court of appeals' decision to extend the scope of the injunction to cover state lands did not specifically address the issue of whether NEPA compliance was required before instituting condemnation proceedings.

Other cases cited by PEPA are similarly inapposite or distinguishable. See Gibson v. Ruckelshaus, 3 E.R.C. 1028, 1030 (E.D. Tex. 1971) (enjoining city's condemnation proceedings for federally funded project for failure to comply with any NEPA requirements); U.S. v. 247.37 Acres of Land, 3 E.R.C. 1098, 1105 (S.D.Ohio 1971) (holding NEPA retroactively applicable to proposed project initiated prior to the effective date of NEPA);*fn6 Monarch Chemical Works, Inc. v. Thone, 604 F.2d 1083, 1090-91 (8th Cir. 1979) (holding proposed work release center had not "reached sufficient maturity" to require inclusion in city's EA, because no site had been selected and no "concrete architectural plans or other detailed planning" had occurred). Environmental Defense Fund v. Froehlke, 473 F.2d 346, 350 (8th Cir. 1972) (requiring full information be provided in EIS); Appalachian Mountain Club v. Brinegar, 394 F. Supp. 105, 118-119 (D.N.H. 1975) (holding NEPA compliance must precede construction of segment of proposed highway).

PEPA and the County assert that NEPA was intended to require governmental decision makers to consider all of the adverse environmental consequences of a decision to site a project before favoring a specific site by making a commitment of resources, such as condemnation. They cite Sierra Club v. Marsh, 872 F.2d 497 (1st Cir. 1989), in which the court reaffirmed its earlier holding in Commonwealth of Massachusetts v. Watt, 716 F.2d 946 (1st Cir. 1983), that when considering a request for a preliminary injunction based on a NEPA violation, the district court should take into account the environmental harm resulting from "the added risk to the environment that takes place when governmental decisionmakers make up their minds without having before them an analysis (with prior public comment) of the likely effects of their decision upon the environment." 872 F.2d at 500. In Watt the court analyzed the difference between environmental statutes designed to protect the integrity of the nation's natural resources and NEPA's focus on the environmental review process:

  [W]hen a decision to which NEPA obligations
  attach is made without the informed environmental
  consideration that NEPA requires, the harm that
  NEPA intends to prevent has been suffered. . . .
  Moreover, to set aside the agency's action at a
  later date will not necessarily undo the harm.
  The agency . . . may well have become committed
  to the previously chosen course of action, and
  new information — a new EIS — may bring about a
  new decision, but it is that much

  less likely ...

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