Opinion
99 Civ. 10873 (AKH)
September 7, 2000
MEMORANDUM ORDER REQUIRING REQUIRING THE UNITED STATES POSTAL SERVICE TO SUPPORT DECISION NOT TO UPDATE ENVIRONMENTAL ASSESSMENT.
For 26 years, between 1966 and 1992, the United States Postal Service operated a post office in leased space on Broadway between 67th and 68th Street in Manhattan ("Ansonia Station"), serving the Zip Code area 10023. In 1992, the Postal Service entered into a contract with a developer, permitting the developer to build a multi-use residential, commercial and entertainment tower on and over the site, and reserving the Postal Service's right to return and continue operations. On March 29, 1999, the Postal Service resumed retail operations at the site. This lawsuit, by a coalition of neighborhood residents, challenges the Postal Service's decision to build five truck bays at its site, on West 68th Street between Broadway and Columbus Avenue, and resume truck carriage operations.
Petitioners challenge this decision of the United States Postal Service ("USPS") because the Postal Service did not do a supplemental Environmental Assessment ("EA") to determine the impact of the intended construction and operation on the surrounding environment. Petitioners claim that the failure to perform a supplemental EA is a violation of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321, et seq., and the Clean Air Act ("CAA"), 42 U.S.C. § 7401 et seq. Petitioners also allege that the New York City Department of Buildings and the New York City Department of Transportation (collectively "the City") are in violation of the CAA because of various traffic issues resulting from the intended construction and operation. They seek an injunction permanently barring the USPS from the intended construction.
Respondent USPS moves for summary judgment under Fed R. Civ. P. 56 dismissing the Petition on the grounds that the decision not to prepare a supplemental EA was neither arbitrary nor capricious, and that Petitioners have failed to state a claim under the CAA. The City also moves for summary judgment on the ground that Petitioners have failed to state a CAA claim. Petitioners cross-move for summary judgment on their NEPA claim. For the reasons that follow, I reserve decision on Petitioners' motion against the Postal Service pending the further submission by the Postal Service, within 30 days (or such adjourned period as it may seek and I may allow), showing the grounds that it considered in deciding not to perform a supplemental EA. I grant defendants' motions for summary judgment dismissing the CAA claims.
I. Background
Between 1966 and 1992, the Ansonia Station post office on Broadway between 67th and 68th Streets serviced the Upper West Side of Manhattan, from 59th Street to 76th Street, Central Park to the Hudson River. The station occupied two stories and part of the basement of a three-story building, comprising 56,726 square feet of space. The Ansonia Station post office provided retail services, carrier operations for pick-up and delivery of mail throughout the Zip Code 10023 area, a Maintenance, Overhaul and Technical Support Center, and a carrier training facility. Ansonia Station supported its vehicles, and postal trucks bringing and removing mail, by seven recessed loading bays fronting on West 68th Street between Broadway and Columbus Avenue.
The USPS operated the facility under a long-term lease extending through 2006 at an annual rental cost of only $2.07 per square foot. In comparison, market rents for first-story frontage in the area had increased by 1991 to approximately $200 per square foot. The USPS was concerned that the cost of renewal of the lease after 2006 could be financially prohibitive, and that there might be little or no chance to find an alternate location.
In order to secure a permanent home in the Ansonia Station neighborhood at a reasonable cost, the USPS entered into an agreement with Lincoln Metrocenter Partners, L.P. ("LMP") on June 3, 1992. LMP wished to develop a mixed-use tower on the entire block bounded by Broadway and Columbus Avenue, and Sixty-Seventh and Sixty-Eighth Streets, but could not do so (at least not as efficiently and economically) without entering into an agreement with the USPS. Under the agreement that was made, the Postal Service exchanged its remaining leasehold interest for a 45,000 square foot condominium interest in the new tower, now known as the Millennium Building. The new postal facility proposed to continue the carrier and retail operations of the old Ansonia Station, and move the maintenance and training facilities elsewhere. The Postal Service construction plans called for the new facility to be serviced by five, rather than seven, loading docks.
To fulfill the requirements of the NEPA and implementing regulations, the USPS performed an EA in early 1992 to consider the projected impact of its proposed construction of its replacement facility on the surrounding community. Such issues as the effects on traffic, air pollution, and the general quality of life in the neighborhood were considered. The EA of the Postal Service concluded that the total effect of its project would reduce postal activity in the neighborhood, and thus reduce the environmental impact of postal operations on the Zip Code 10023 area. In May of 1992, the USPS issued its formal Finding of No Significant Impact ("FONSI") for the project.
The community disagreed with the Postal Service's assessment, and filed a lawsuit in this Court. This Court dismissed the suit, and the Second Circuit affirmed. See Landmark West! v. United States Postal Service, 840 F. Supp. 994 (S.D.N.Y. 1993), aff'd, 41 F.3d 1500 (2d Cir. 1994). The Millennium Building was thereafter completed: a multi-use, multi-story structure, housing residential units, retail space, a health club, a SONY multiplex motion-picture theater, and the new Ansonia Station Post Office.
On March 29, 1999, retail operations began at the new post office. However, the interior space for carrier operations has not been completed, and platforms for the five loading docks on 68th Street have not yet been installed. Petitioners ask for an injunction preventing these aspects of the project from coming to fruition, unless the USPS first completes a supplemental EA study of the project to determine once again whether it will have any significant environmental impact. They claim that in the eight years that have passed since the original EA was completed, the neighborhood around Ansonia Station changed significantly. Specifically, they allege that commercial and residential development has proceeded at a much faster rate than was anticipated, and that the great success of the Sony multiplex theater and of other neighborhood commercial projects has substantially increased vehicular and pedestrian congestion, challenging the conclusions of the Postal Service that there should be no significant impact on the environment. Respondents argue that the 1992 EA assumed that there would be substantial development in the area, and that the Postal Service's conclusion that the impact of the replacement facilities would be marginal was not arbitary or capricious.
II. The NEPA Framework
The NEPA is an "action-forcing" statute, enacted to ensure that federal agencies contemplating major construction projects adequately consider the effects of their projects on the surrounding communities, and thus reflect the environmental goals set forth by Congress. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 370-71 (1989). Under the Act, agencies proposing "major Federal actions significantly affecting the quality of the human environment" must include in their proposals a detailed Environmental Impact Statement ("EIS") assessing the environmental benefits and detriments of the proposed action. See 42 U.S.C. § 4332(2)(C); Town of Orangetown v. Gorsuch, 718 F.2d 29, 34 (2d Cir. 1983). Whether or not a proposed action will significantly affect the quality of the human environment is a threshold question that an agency must answer to determine whether an EIS is necessary.
The procedure an agency must follow in making this threshold determination is identified in the NEPA regulations promulgated by the Council on Environmental Quality ("CEQ"). The regulations promulgated by the CEQ are entitled to Asubstantial deference@ in this Court. See Marsh, 490 U.S. at 372. Under these procedures, an agency that is uncertain of the environmental impact of its proposed action must prepare an EA, which is to be followed by either a FONSI if no significant impact is found, or a more detailed EIS evaluating the significant impact. See 40 C.F.R. § 1501.3, 1501.4, 1508.9; National Audubon Society v. Hoffman, 132 F.3d 7, 12 (2d Cir. 1997). The determination whether an environmental impact is significant is Aa substantive question left to the informed discretion of the agency proposing the action,@ and is subject to court review under an Aarbitrary and capricious@ standard. National Audubon, 132 F.2d at 14; see also Administrative Procedure Act, 5 U.S.C. § 706(2)(A).
Although the NEPA does not explicitly impose any duty upon agencies to supplement previously completed EA's or EIS's when project specifications or environmental conditions change, CEQ regulations do impose a duty to supplement an EIS when "[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § 1502.9(c); see Marsh, 490 U.S. at 372-73. Like the decision whether to prepare an EIS in the first instance, the decision whether to supplement an EIS is reviewed under an arbitrary and capricious standard. See Marsh, 490 U.S. at 375-76. Neither CEQ regulations nor USPS internal regulations, however, explicitly require agencies to supplement EA's, and the Second Circuit has not addressed the question of the necessity of supplementing EA's.
Nevertheless, it is plain that it would be inconsistent with the NEPA if there were not to be an obligation on an agency to supplement an out-of-date EA where circumstances would make such supplementation reasonable and appropriate. As the Supreme Court observed in Marsh, in holding that supplemental EIS's were required:
It would be incongruous with this approach to environmental protection, and with the Act's manifest concern with preventing uninformed action, for the blinders to adverse environmental effects, once unequivocally removed, to be restored prior to completion of agency action simply because the relevant proposal has received initial approval.
Id. at 371. It would make no more sense to restore the blinders when an initial finding of no significant impact is made. To hold otherwise would lead to the absurd consequence that a proposed project, having once been determined to have no significant environmental impact, would be forever insulated from the NEPA's action-forcing requirements when contemplated construction is substantially delayed and, in the meantime, substantial environmental changes have occurred. I therefore agree with the conclusion of the Ninth Circuit Court of Appeals, that the NEPA requires agencies to supplement EA's under the same circumstances as those that require them to supplement EIS's. See Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1152 (9th Cir. 1998). It logically follows, moreover, and I so hold, that I review a decision by an agency not to supplement an EA by reviewing if the decision was arbitrary or capricious, the same standard of review as would be applicable to a decision not to supplement an EIS. See Friends of the Bow v. Thompson, 124 F.3d 1210, 1218 (10th Cir. 1997). With this framework in mind, I turn to a review of the USPS's decision not to supplement its 1992 EA.
III. The Failure of the USPS to Document Its Decision-making Process Makes Meaningful Review Impossible.
As previously noted, in demanding a supplemental EA, Petitioners allege that environmental conditions around Ansonia Station B most notably traffic and congestion B have changed significantly since the 1992 EA was issued. As support for their claims, they submit the expert opinion of Brian Ketcham, a professional engineer, who opines that several major construction projects not anticipated in 1992 have exacerbated the problems of traffic and pollution around Ansonia Station, and added 8,000 daily car trips to the area. See Ketcham Aff. ¶ 15. He comments also that the greater-than-anticipated success of projects like the Sony multiplex theater B a project that was perhaps facilitated by the Postal Service's agreement with the developer of the Millennium project — have created larger environmental impacts than could have been foreseen in 1992. See id. ¶ 20. These changes, Petitioners argue, will make the impact of carrier operations at Ansonia Station on traffic and the environment more severe than that anticipated in the 1992 EA. Petitioners thus demand a supplemental EA to consider the impact of the return of carrier operations in light of this new information.
Petitioners and their expert devote much attention in their papers and affidavits to their claim that the 1992 EA was inadequate when written. The 1992 EA, however, has already been subjected to, and has withstood, judicial scrutiny. See Landmark West!, supra. I therefore decline to revisit the propriety of the 1992 EA and FONSI, and consider only whether a supplemental EA is necessary in light of changed conditions.
USPS responds that the 1992 EA did anticipate substantial growth and development in the area around Ansonia Station, that it considered these factors in reaching its court-approved finding of no significant impact, and that unanticipated development is insignificant. See Admin. Rec. Tab 73, p. 34. Respondent notes that although the Ketchum opinion identifies 8,000 new daily car trips that were not anticipated in the 1992 EA, it also identifies 50,000 added daily car trips resulting from projects that were anticipated in the 1992 EA. See Ketcham Aff. ¶ 10. These 8,000 additional car trips, Respondent argues, do not create a significantly greater environmental impact than the anticipated 50,000 cars.
Whether there were unanticipated circumstances, the significance such circumstances may have, and the relationship between them and the Postal Service's activities are not matters for de novo consideration by this Court. They are the tasks of the agency, and the EA it may be required to prepare. The NEPA, as previously noted, is an action-forcing statute requiring federal agencies to take a hard look at the environmental impact of their proposed projects. My task is to determine whether the decision not to supplement the EA was arbitrary and capricious, that is, "whether the decision was based on rational consideration of the relevant factors and whether there has been a clear error of judgment." Marsh, 490 U.S. at 378, quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971). The USPS's failure adequately to document its decision-making process regarding whether or not there should be a supplemental EA makes it impossible for this Court to determine whether the decision of the USPS was arbitrary and capricious.
The only evidence in the Administrative Record that sheds any light on the USPS reasons for declining to conduct a supplemental EA is found in a one paragraph memorandum from Charlotte Parrish, dated November 10, 1999. See Admin. Rec. Tab 165. Parrish, who is identified in the memorandum as a "Facilities Environmental Specialist," writes that she reviewed statistics on the number of trucks that the new postal facility would employ on a daily basis, and excerpts of the traffic analysis in the 1992 EA. Based on this information, and "several discussions with Tom Pino, Asset Management, regarding potential traffic issues," Parrish concluded that "the 1992 Amended EA findings should be upheld and additional study [did] not appear to be warranted at [that] time." Id. No documentation identifies, what, if any, information regarding the current traffic and air quality circumstances was considered by Respondent, nor is the substance of the "discussions with Tom Pino" indicated.
If the USPS did indeed consider these issues, some documentation of that consideration and the conclusions drawn therefrom is necessary to enable the Court to determine whether the decision not to supplement the 1992 EA was arbitrary and capricious. A reviewing court should be able to consider, from the record, the "relevant factors" that the USPS considered as to the impact of carrier operations in the Ansonia Station neighborhood, such as the number of daily truck trips that carrier operations will entail, the times of day, their projected routes of travel, the impact on the neighborhood in light of underlying traffic and pedestrian conditions, and the like. Although the NEPA mandates only that Respondent consider the impact of its own actions and not those of others, it must consider the impact of its actions in their proper context. See Landmark West!, 840 F. Supp. at 1010-11; 40 C.F.R. § 1508.7 (defining the "cumulative impact" of a project as "the incremental impact of the [federal] action when added to other past present and reasonably forseeable future actions" of others). It does not appear adequate to rely on eight-year-old predictions of neighborhood conditions, when data drawn from actual, current experience is available or readily obtainable.
I will not now decide the propriety of the USPS's decision not to supplement the EA, for the record is unclear as to precisely what evidence the USPS considered, and what reasoning it applied, in reaching that decision. In the exercise of discretion with regard to the motion before me, under Fed.R.Civ.P. 56(e) and (f), rather than grant or deny the motion on a matter of such public importance, I will defer decision and allow the parties to supplement the record before me. Accordingly, I direct Respondent USPS to submit, within 30 days (or such enlarged period as it may request and I may grant), relevant evidence showing its grounds in declining to supplement its 1992 EA. Following the USPS's submission, Petitioners will have reasonable opportunity to comment. The motion and cross-motion for summary judgment will then be considered. In the alternative, the USPS, on notice to the Court, may perform and submit a supplemental EA.
The USPS, by letter dated July 27, 2000, advised that it is currently in the process of finalizing the design for the carrier operations portion of the project, and that it will soon commence the bidding process. These activities appear not to disturb the status quo. I direct respondent to give reasonable notice prior to taking any step that will disturb the status quo — for example, construction, adding trucking services, etc.
IV. The CAA Claims Are Legally Defective.
The Clean Air Act requires the EPA to promulgate national ambient air quality standards ("NAAQS") for various pollutants, including carbon monoxide. It also obligates each State to determine how to achieve and maintain these targets through a State Implementation Plan ("SIP"). See 42 U.S.C. § 7410. Each state must prepare an SIP, and submit it to the federal Environmental Protection Agency for approval. See Coalition Against Columbus Center v. City of New York., 967 F.2d 764, 766-67 (2d Cir. 1992). Actions to enforce the CAA may be brought by the government, or by a private citizen "against any person . . . who is alleged to be in violation of (a) an emission standard or limitation under this chapter. . . ." 42 U.S.C. § 7604(a)(1). An "emission standard or limitation," moreover, is defined as "any condition or requirement under an applicable implementation plan relating to transportation control measures, air quality maintenance plans, vehicle inspection and maintenance programs or vapor recovery requirements. . . ." 42 U.S.C. § 7604(f)(3).
Plaintiffs bring suit under these provisions against the USPS and the City defendants, alleging that "[t]he failure of Respondents to conduct an updated environmental assessment impedes and prevents compliance with the CAA." Am. Verified. Petition ¶ 73. Petitioners allege, apparently, that the failure to perform a supplemental EA has prevented the City from complying with obligations under the New York SIP to monitor and rectify carbon monoxide "hot spots", which are locations in which carbon monoxide levels exceed CAA standards. See Am. Verified Petition ¶¶ 60-68.
The deficiency of the Petition is evident in the language cited above. The private right of action under the CAA is a limited one, allowing plaintiffs to bring suit against any person "in violation of an emission standard or limitation" adopted under an SIP. As the Second Circuit has explained: "[P]laintiffs bringing a citizen suit must allege a violation of a specific strategy or commitment in the SIP and describe, with some particularity, the respects in which compliance with the provision is deficient." See Wilder v. Thomas, 854 F.2d 605, 610 (2d Cir. 1988) (internal quotation marks omitted). In their Amended Verified Petition, Petitioners fail to allege such a violation. Their vague and conclusory suggestion that a failure to perform a supplemental EA is tantamount to a "violation" of an "emission standard or limitation" is legally insufficient to state a claim. See Wilder v. Thomas, supra.
Even if Petitioners could, in theory, state a claim under the CAA by alleging that the failure to comply with obligations under the NEPA has prevented compliance with obligations under the CAA, they have failed to do so in this case. In their memoranda, Petitioners identify two provisions of the 1984 New York SIP relating to carbon monoxide standards in the New York City Metropolitan Area, see 40 C.F.R. § 52.1670(c)(72), as amended in 1992, with which, they allege, Respondents have failed to comply. First, they cite Section 4.0(2) of the 1992 SIP, which reiterates "a commitment by the City to review Environmental Impact Statements (EIS) and assure that any site at which an EIS identifies a violation or exacerbation of the carbon monoxide standard is brought into attainment of the standard." Second Jones Decl. Exh. A, 1992 New York SIP p. 18. Initially, I note that this provision imposes no obligation on Respondent USPS, and cannot form the basis of a claim against the USPS.
Even with respect to New York City, moreover, Petitioners have failed to allege that any EIS conducted on the project in question "identified" a violation or exacerbated a violation. And even if Section 4.0(2) were to be read to impose an obligation on the City to review EA's as well as EIS', Petitioners' argument still falls short. Petitioners try to make something out of a reference in the 1992 EA to a 1988 EIS for an unrelated construction project that had identified a "hot spot" from traffic congestion at the intersection of West 65th Street and Broadway, some three blocks from the Ansonia Post Office, involving different traffic conditions. See Admin. Rec. Tab 73, p. 46. The 1992 EA concluded that the USPS project would have no effect on carbon monoxide levels. See id. at 49. The Ansonia Post Offiice project is not a "site at which an EIS [or EA] identifie[d] a violation or exacerbation of the carbon monoxide standard."
Furthermore, the undisputed evidence in the record suggests that the hot spot identified in 1988 at that different site was eliminated by 1992. See Second Jones Decl., Exh. A, 1992 New York SIP at p. 58.
Second, Petitioners cite Section 4.4 of the 1992 SIP, in which "[t]he State and City commit to develop a broader alternative procedure to identify potential areas as risk of an exceedance [sic] of the [carbon monoxide] standard . . . This new procedure will become part of the [carbon monoxide] Maintenance Plan which must be submitted at the time that the State requests redesignation [sic] of the nonattainment [sic] area as an area that has attained the NAAQS for [carbon monoxide]." See Second Jones Decl. Exh. A, 1992 New York SIP at p. 35. Again, at the outset, I note that this provision imposes no duty upon Respondent USPS, and cannot form the basis of a claim against the USPS.
Respondents argue that this provision is not yet in effect, because the EPA has yet to approve New York's request for re-designation. See Federation to Preserve the Greenwich Village Waterfront v. City of New York, No. 102576/99 (N.Y.Sup.Ct. Dec. 3, 1999); Brooklyn Heights Protection Coalition v. City of New York, No. 102576/99 (N.Y.Sup.Ct. Oct. 15, 1999); see also, United States v. SCM Corp., 667 F. Supp. 1110, 1112 (D.Md. 1987) ("If the state-adopted SIP satisfies the requirements of the Act, it is approved by the EPA and may, thereafter, be enforced."). Because I find that Petitioners have failed to state a claim for violation of Section 4.4, I need not decide whether that provision becomes effective upon submission to the EPA, or approval by the EPA.
Nor is a claim stated against the City defendants. A vague and generalized commitment to develop broader procedures cannot support a CAA citizen suit. See Wilder, 854 F.2d at 615-16. Petitioners fail to allege a specific procedure that the City was required to perform, and failed to perform.
Finally, Petitioners concede that they failed to provide 60 days pre-litigation notice to the EPA and USPS by certified mail or personal service before commencing this CAA suit, as required by the CAA and EPA implementing regulations. See 42 U.S.C. § 7604(b); 40 C.F.R. § 54.2(c). This failure alone requires dismissal of their suit. See Monongahela Power Co. v. Reilly, 980 F.2d 272, 275 n. 2 (4th Cir. 1992); see also City of New York v. Anglebrook Limited Partnership, 891 F. Supp. 900, 906 n. 9 (S.D.N.Y. 1995) (discussing analogous notice provisions of Clean Water Act).
I grant the USPS' motion for summary judgment dismissing CAA claims against it, and I grant the motion of the City defendants for summary judgment dismissing the Petition against them in its entirety.
V. Conclusion
For the foregoing reasons, defendants' motions for summary judgment dismissing the CAA claims are granted, and judgment is reserved on Petitioners' motion, and on Respondent USPS' cross-motion, for summary judgment with respect to the NEPA claims. The parties are directed to supplement the record as ordered above.
SO ORDERED.