and after the public's comments have been considered.
The inconsistency of a development with existing land uses in
the relevant area or with zoning is a relevant environmental
consideration under NEPA. Cf. Hanly v. Mitchell, 460 F.2d 640,
647 (2d Cir.), cert. denied, 409 U.S. 990, 93 S.Ct. 313, 34
L.Ed.2d 256 (1972) (reversing a FONSI and requiring
consideration of factors that might affect human environment in
the area including possible disturbances from the presence of a
jail and drug treatment center in a residential neighborhood,
and noting generally that "[t]he Act must be construed to
include protection of the quality of life for city residents").
The project's incompatibility with zoning requirements is
particularly relevant since the regulatory definition of
"significant" includes as a relevant factor the proposed
facility's violation of any other "Federal, State or local law
or requirements imposed for the protection of the environment."
40 C.F.R. § 1508.27(b)(10).
Taken as a whole, these shortcomings establish that the
Service's finding of no significant impact was arbitrary and
The issue remains whether an injunction should be granted.
A preliminary injunction may be granted only if movants have
shown that without such relief they will suffer possible
irreparable harm, and either that they are likely to succeed on
the merits or have raised serious questions going to the
merits, and a balance of hardships tips decidedly in their
favor. Consumers Union of United States, Inc. v. General Signal
Corp., 724 F.2d 1044, 1048 (2d Cir. 1983), cert. denied, 469
U.S..823, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984).
The Service argues that it represents the public interest and
that in such circumstances, the movants must satisfy the "more
stringent test" requiring a showing of likely success (citing
L.S.S. Leasing Corp. v. United States General Services
Administration, 579 F. Supp. 1565, 1569 (S.D.N.Y. 1984), and
Union Carbide Agricultural Products Co. v. Costle,
632 F.2d 1014, 1018 (2d Cir. 1980) (district court erred in applying
"less onerous" test), cert. denied 450 U.S. 996, 101 S.Ct.
1698, 68 L.Ed.2d 196 (1981)).
However, in the case at hand the public interest is
represented at least as much by the City of New York,
Westchester County and the Town of Harrison, and the imperative
to assure pure drinking water for eight million people trumps
the convenience of better mail delivery to one million. In
contrast, the cases on which the Service relies involved purely
private challenges to federal action: Union Carbide concerned a
takings clause challenge to application of a federal statute
(the Federal Insecticide, Fungicide, and Rodenticide Act) in
which there were no competing allegations that the movants
represented the "public interest." L.S.S. Leasing, 579 F. Supp. 1565
(S.D.N.Y. 1984), also involved a private plaintiff (a
landlord which would lose federal tenants if the proposed
federal office building in question were built) challenging a
project authorized by Congress and likely to improve the
efficiency of government operations.
In sum, the movants may be entitled to relief if they satisfy
either branch of the preliminary injunction test. In fact, they
have satisfied both branches.
As an initial matter, the movants have shown a real danger
that they will suffer irreparable harm absent an immediate
injunction. Construction is likely to begin promptly if
injunctive relief is not granted.*fn6 Once begun, such work
cannot be undone. That work may well result in actual
environmental harm, which similarly cannot be undone. NEPA's
statutory purpose is to ensure that federal actions occur only
after the decision-makers have considered fully the
environmental consequences of their
actions. Regardless of the actual physical harm to the
environment that may occur as a result, when an agency embarks
on significant activity without adequately considering its
environmental consequences "the harm that NEPA intends to
prevent has been suffered." Sierra Club v. Marsh, 872 F.2d 497,
500 (1st Cir. 1989).
Given the movants' showing of likely irreparable harm, we
turn to the remainder of the preliminary injunction test,
which, as noted above, requires a showing either of likely
success on the merits or the existence of serious questions
going to the merits combined with a balance of hardships
tipping decidedly in the movants' favor.
The movants by identifying the EA's numerous inadequacies
raise serious questions and establish likely success in proving
that the Service's finding of no significant impact was
arbitrary and capricious. Particularly where the continued
quality of drinking water for eight million people is at stake,
an agency planning action must proceed with caution. The stakes
here are too high, the proposed facility too large, the issues
too complex and the Service's analysis too questionable in
critical parts to permit construction without the benefit of a
more searching review that provides for full public discussion
Finally, the balance of hardships here tips decidedly in the
movants' favor. The injury to the eight million or more people
whom they represent which might occur as a result of a failure
to prepare an EIS, that is to say, possible contamination of
drinking water, possible traffic tie-ups and dramatic physical
changes in the area, clearly outweighs improvement in mail
delivery to Westchester citizens, however useful that may be.
The motions for a preliminary injunction are granted, and the
Postal Service's motion for summary judgment is denied.
It is so ordered.