Opinion
89 Civ. 5609 (CSH).
November 29, 2000.
MEMORANDUM OPINION AND ORDER
As several of the new housing development projects involved in this case inch closer to construction, plaintiff moves this Court for declaratory and injunctive relief against defendants the City of Yonkers (the "City") and the United States Department of Housing and Urban Development ("HUD"), alleging their lack of compliance with environmental laws in connection with those projects. Because, as discussed below, I conclude that plaintiff has not demonstrated his entitlement to such relief, his motion is denied.
BACKGROUND
The history of this case has been recounted in numerous opinions and orders issued by this Court, familiarity with which is assumed, and need not be repeated in detail here. In past opinions, the Court has described the City's environmental compliance obligations under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321, et seq., with respect to new housing development projects called for, or for which credit will be sought, under the housing orders issued by Judge Sand in his Yonkers discrimination case. The motion at hand focuses on several recent environmental assessments ("EAs") issued by the City for new developments, including three new construction projects specifically called for by the Third Supplemental Long Term Plan Order (the "Third SLTPO") issued by Judge Sand.
HUD has delegated to the City, as the recipient of Community Development Block Grant ("CDBG") funds under the Housing and Community Development Act of 1974 ("HCDA"), "all of the responsibilities for environmental review, decisionmaking, and action pursuant to [NEPA] . . . that would apply to the Secretary were he to undertake such projects as Federal projects." 42 U.S.C. § 5304(g)(l). Accordingly, the City, not HUD, is the entity responsible for performing the necessary environmental reviews for projects that will receive CDBG funds.
In late Fall 1999, the City's environmental consulting firm prepared EAs for the Grassy Sprain, Hoover Road and Yonkers Avenue development sites. It also prepared the Fourth Re-Evaluation of the Area-Wide Environmental Assessment ("Area-Wide EA") which incorporated the cumulative environmental effects of the above-mentioned sites as well as a new development proposed for Warburton Avenue and several other sites. Each of the three site-specific EAs and the Area-Wide EA resulted in findings of no significant environmental impact (a "FONSI"). The City published these FONSIs in March 2000 along with notices of their intended requests for release of CDBG funds ("RROF") from HUD for the three new construction sites.
D'Agnillo lodged various objections to these four EAs and their resulting FONSIs. The City responded to his objections in June 2000, finding them all to be without merit. Those same objections serve as the basis for the declaratory and injunctive relief sought here. In particular, D'Agnillo requests the Court to: (1) enjoin HUD from dispersing the requested funds for the Grassy Sprain, Hoover Road, and Yonkers Avenue sites; (2) enjoin the City from commencing construction on those sites; (3) declare that the EAs and FONSIs violate NEPA and HUD regulations; and (4) declare that the City must conduct a fifth area-wide environmental assessment before construction may begin on any site.
DISCUSSION
A. Legal Principles
As this Court has repeatedly stated in this case, "[i]n environmental cases as elsewhere, the basis for injunctive relief is irreparable injury and the inadequacy of legal remedies." D'Agnillo v. U.S. Dep't of Housing and Urban Devel., 738 F. Supp. 1454, 1456 (S.D.N.Y. 1990) (internal quotations omitted) ("D'Agnillo I"), aff'd, 923 F.3d 17 (2d Cir. 1991). Under this standard, demonstrating that a defendant is in violation of NEPA is insufficient to merit injunctive relief. "[T]he Supreme Court has explicitly rejected the notion that an injunction follows as a matter of course upon a finding of statutory violation." Id. Instead, D'Agnillo must establish "that the continuation of defendants' activities will result in immediate irreparable harm in the form of significant adverse impact upon the quality of the human environment." D'Agnillo v. U.S. Dep't of Housing and Urban Devel., No. 89 Civ. 5609, 1995 WL 110597, *3 (S.D.N.Y. Mar. 15, 1995) (internal quotations omitted) ("D'Agnillo II").
B. Relief Against the City
In the motion at hand, D'Agnillo challenges the EAs and the resulting FONSIs on four primary bases, each of which fails to measure up under the standard governing the award of injunctive relief.
1. Public Availability of the EAs
First, plaintiff argues that the City failed to comply with its obligation under NEPA to make publicly available the EAs on which the recent FONSIs and RROFs were founded. D'Agnillo represents that despite the City's public notices indicating that the EAs would be available at the Yonkers public library, he was unable to procure copies of two of the sitespecific EAs on March 8, 2000. D'Agnillo contends that his inability to obtain copies of the two EAs violated his due process rights and NEPA and HUD regulations. This argument must be rejected.
D'Agnillo admits that the City mailed him copies of all four of the EAs and that he received them on March 9 — the day after his unsuccessful library foray. Thus, even if there was a problem obtaining them in the library, D'Agnillo cannot point to any harm he suffered as a result. The EAs were clearly available to him. Armed with his own copies, D'Agnillo had ample opportunity to review the EAs in full. Thus, even assuming dubitante that D'Agnillo has any constitutional right to review the EAs and comment upon the FONSIs, his claim that such right was violated rings hollow.
Nor is it apparent from D'Agnillo's experience in the library that the City violated NEPA. In his affirmation dated August 1, 2000, ("Fitzpatrick Aff.") Raymond P. Fitzpatrick, Jr., counsel for the City, represents that while he cannot explain the librarian's failure to locate two of the EAs on the day D'Agnillo searched for them, James J. Pinto, the City's Manager of New Construction, did timely furnish the library with copies of them. Fitzpatrick Aff. at ¶ 7. Although D'Agnillo states that he had difficulty locating them on the day in question, he does not specifically dispute the representation that copies were in fact provided to the library by Mr. Pinto. Fitzpatrick's uncontradicted affirmation establishes at least the City's good faith attempted compliance with the public availability requirements of NEPA.
In any event, even if the City's effort to make the EAs publicly available was less than conscientious, a subject on which I do not presently opine, it is entirely unclear what relief D'Agnillo believes this alleged lapse merits. It does not warrant injunctive relief because there is no irreparable harm flowing from it. D'Agnillo and others were able to review the EAs and consequently object to the resulting FONSIs. Nor is a declaration that the City violated NEPA's public availability requirement warranted. The Fitzpatrick affirmation makes clear that the City attempted to, and with respect to two of the EAs did, comply with the public availability requirement, and also made special efforts to keep D'Agnillo informed by furnishing him personal copies of the EAs. Under these circumstances, neither injunctive nor declaratory relief is called for.
2. Timing of the EAs
Plaintiff next argues that the Area-Wide EA, which bears the date of November 1999, is incomplete because it could not have possibly incorporated the findings of the site-specific EAs for Grassy Sprain and Hoover Road, which are dated a month later — December 1999. Plaintiffs argument assumes, reasonably enough, that the date printed on the cover of the Area-Wide EA represents the date that document became final, and the Hoover Road and Grassy Sprain EAs were not substantially completed before the date their covers bear. Taking at face value the printed dates, D'Agnillo postulates that the Area-Wide EA, which purports to assess the cumulative effects of sites including Grassy Sprain and Hoover Road, is critically flawed because it could not have relied upon the contents of the later-dated EAs for those sites. This argument is unavailing for two reasons.
First, according to the Fitzpatrick Affirmation, D'Agnillo's assumptions are unfounded because the dates contained on the documents do not have the fixed meaning which D'Agnillo ascribes to them. The City represents that all four of the EAs were being prepared at the same time — during the Fall of 1999. According to the City, all of the information about the Hoover Road and Grassy Sprain sites was available in draft form at the time the Area-Wide EA was being prepared, and in fact was taken into consideration by the Area-Wide EA. In addition, notwithstanding their original printed dates, all four of the EAs went through simultaneous revisions until February 2000 when they were finalized by Mr. Pinto. Fitzpatrick Aff. at ¶ 4. In light of this explanation, which I have been given no legitimate reason to reject, there is no basis for me to conclude that the Area-Wide EA did not take into account the environmental effects of the site-specific EAs simply because of the incongruity of their printed dates. Indeed, the fact that FONSIs were not issued until March 1, 2000 lends credence to the City's explanation that the environmental review process was not completed on all four EAs until well after their printed dates.
Even assuming, contrary to the City's explanation, that the Area-Wide EA did not change after November 1999 to incorporate the information and findings in the site-specific EAs for Hoover Road and Grassy Sprain, I would nonetheless conclude that there is no merit to D'Agnillo's argument. D'Agnillo has not identified any environmental impact described by those site-specific EAs that was not included in the Area-Wide EA. Nor has D'Agnillo suggested that any meaningful discrepancy exists between the Area-Wide EA and the Hoover Road and Grassy Sprain EAs in the description of the sites or factors relevant to their environmental impact. For these reasons, I cannot conclude that the Area-Wide has any substantive shortcomings, much less any that might reasonably suggest that harm to the environment could result from construction of Hoover Road and Grassy Sprain (or any other site) without a new area-wide EA.
3. Additional Parkland
D'Agnillo also criticizes the Area-Wide EA because it neglects to specify the site for 25 acres of parkland that will be donated to the City of Yonkers as a condition for the use of a portion of an existing park to accommodate the Grassy Sprain development. It is D'Agnillo's contention that the Area-Wide EA's mere mention of the 25 acres without identifying its location renders the document incomplete and requires a declaration that it is null and void. His argument fails to persuade.
D'Agnillo has not cogently explained why the location of an area of parkland must be included in an assessment of the possibly adverse environmental factors of new housing developments. It is difficult to believe that the addition of parkland to an area of the City could have anything other than a positive or neutral effect on the environmental factors that the cumulative EA is designed to evaluate, such as traffic, noise, air quality and sewage. Nor is it relevant to the purpose of an EA. An EA serves to "briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding or no significant impact." 40 C.F.R. § 1508.9(a)(l). Accordingly, "[t]he purpose of the environmental assessment is for the agency to determine whether the federal action is likely to significantly affect the environment and, therefore, whether it must prepare" a more comprehensive environmental impact statement. D'Agnillo v. United States Department of Housing and Urban Development, 738 F. Supp. 1443, 1446 (S.D.N.Y. 1990).
D'Agnillo does not maintain that the addition of 25 acres of parkland — wherever it may be located — will detrimentally affect the environment. Since that is the purpose of conducting an EA, it is hardly troubling that the Area-Wide EA lacks reference to the location for that parkland. More importantly, since the location of the parkland has a benign effect on the environment, the absence of that location does not in the least undercut the conclusion of the EA that the housing developments analyzed therein are not likely to significantly affect the environment. There is thus no basis for a conclusion that the Area-Wide EA is defective or stands in violation of NEPA regulations simply because it fails to specify the location of the park.
4. Warburton Avenue Wetlands
Plaintiffs final contention relates to a finding in the site-specific EA prepared for the Warburton Avenue development that the proposed development site contains a protected "wetlands" area. Because of that finding, the City did not issue a FONSI for that project. Instead, it has commissioned a more comprehensive environmental impact statement ("EIS") to evaluate the impact of construction of the Warburton Avenue development on those wetlands. D'Agnillo points out, however, that despite the fact that the Area-Wide EA purports to incorporate the environmental effects of the Warburton Avenue site in its evaluation, it does not recognize the wetlands impact of that site. As a result, D'Agnillo contends that the Area-Wide EA constitutes improper segmentation because it does not properly evaluate the cumulative effects of all of the projects. D'Agnillo argues that as the result of this deficiency, a fifth areawide EA must be performed before any of the projects may go forward.
D'Agnillo's argument apparently stems from the premise that the impact on one particular wetlands area from one construction project could have a ripple effect that must be taken into consideration in evaluating the projects in the aggregate. This premise is faulty. The identified wetlands area is located adjacent only to the Warburton Avenue site — not any of the others. In fact, none of the other sites has been recognized to contain or affect any wetlands. Nor is there any suggestion that the impact on the Warburton Avenue wetlands will affect any other wetlands now or in the future, or that any other site will, in turn, affect the Warburton Avenue wetlands. Instead, it is a self-contained environmental matter which, because it lacks the potential to grow with the addition of new developments, is not the sort of impact that need be discussed in the Area-Wide EA.
The Area-Wide EA is, as D'Agnillo correctly points out, designed to prevent the problem of improper segmentation. That phenomenon occurs when related parts of a project are divided into components evaluated separately in order to make the "environmental impacts of each component part appear insignificant thereby misrepresenting the environmental effects of the project as a whole." D'Agnillo II, 1995 WL 110597, *7. To ensure that the different developments contemplated or implicated by Judge Sand's orders would not be considered harmless in isolation, this Court has held that the City must not only conduct a site-specific EA on each new construction proposal but factor each proposed new development into a comprehensive area-wide environmental assessment before that development may be constructed. See, e.g. D'Agnillo v. United States Department of Housing and Urban Development, No. 89 Civ. 5609, 1999 WL 350870, *9 (S.D.N.Y. June 1, 1999).
The purpose of this comprehensive environmental assessment is to consider factors from each housing development that contribute in the aggregate to the Yonkers environment as a whole — not factors that affect only one particular development, the function of the site-specific EA.See D'Agnillo I, 738 F. Supp. at 1459. For that reason, in D'Agnillo I, this Court required the responsible entity to consider in a comprehensive area-wide EA the cumulative effect of the contemplated new housing on traffic and the waste-disposal system of Yonkers. Id. at 1466-67. The City has since added to the Area-Wide EA an assessment of the consequences of the new housing on factors such as air quality, noise level and energy consumption.
However, unlike noise, air, traffic and sewage, the effect on one wetlands area of one construction project is not the sort of environmental impact that has the potential to increase with each successive development. Its evaluation is therefore appropriately left to the site-specific EA. Whether or not the Warburton Avenue development should go forward because of its impact on wetlands adjacent to the site is a serious question that the City is presently evaluating in an EIS. But it is a question separate from whether, taken as a whole, the projects will have such a cumulative impact on the environment of Yonkers that none or only some of the sites should go forward. It is not improper segmentation to fail to take into consideration a factor that will adversely affect only one particular development before allowing the other aspects of a larger project to go forward. Yet, there has been no suggestion that the wetlands consequences from Warburton Avenue will extend beyond the one identified wetlands area.
Having said this, I nonetheless recognize that the statement in the current Area-Wide EA that "[n]o wetlands will be impacted by the New Construction Projects" is not factually correct, and the City implicitly admits as much. In its response to D'Agnillo's objections, the City explained that the statement "related originally to the court-ordered new construction projects. It will be expanded in the future to note any wetlands on other projects such as Warburton Avenue." See Appendix to Fitzpatrick Affirmation, Exhibit 6 at p. 3. As the City appears to recognize, the Area-Wide EA does need to be updated in order to correct this factual inaccuracy. However, because the Warburton wetlands impact is confined to that particular site there is no basis to conclude that this inaccuracy affected the substance of the cumulative EA. For the reasons discussed above, the Area-Wide EA's failure to recognize the site-specific Warburton Avenue wetlands impact does not furnish grounds to invalidate the FONSI with respect to the aggregate effect on the environment of all of the developments evaluated therein.
Nor does that site-specific environmental consequence justify enjoining construction on other sites for which no significant environmental impact has been found. More to the point, this is not a reason to enjoin construction on the three sites for which CDBG funds have been requested — Hoover Road, Yonkers Avenue and Grassy Sprain. Allowing these projects to go forward even though the Area-Wide EA fails to address the wetlands impact of the Warburton Avenue development does not create any danger of irreparable environmental harm. The wetlands impact has nothing to do with these sites and does not contribute to the cumulative environmental consequences of the projects as a whole. Nor, for that matter, is there any danger that the FONSIs for the Area-Wide EA and the Hoover Road, Yonkers Avenue and Grassy Sprain sites will necessarily result in construction of the Warburton Avenue development. To the contrary, the City must still address the site-specific consequences of Warburton Avenue which it is currently doing by preparing an EIS. There has been no FONSI issued for that site.
Because plaintiff has not demonstrated that the Area-Wide EA is invalid for failure to include analysis of the Warburton Avenue wetlands impact, he is not entitled to a declaration that a fifth area-wide EA must be prepared before any of the projects may be constructed. Furthermore, because he has failed to establish the likelihood of any significant adverse impact on the environment resulting from construction of the Hoover Road, Grassy Sprain, Yonkers Avenue, and Yonkers Green developments, plaintiff is not entitled to an injunction preventing the City from initiating construction on them.
Yonkers Green is among the proposed new developments evaluated in the Area-Wide EA. The City has apparently not requested CDBG funds for that development. Without elaboration, D'Agnillo includes Yonkers Green among the developments on which he seeks to enjoin construction. For the same reasons that D'Agnillo is not entitled to an injunction for the Hoover Road, Grassy Sprain and Yonkers Avenue sites, he has failed to establish a basis for enjoining construction on Yonkers Green.
C. Relief Against HUD
Plaintiff also seeks to enjoin HUD from disbursing CDBG funds to the City, as well as a declaration that HUD must reject the City's FONSIs and certificates of environmental compliance. However, plaintiff has identified no cognizable basis for this relief. HUD's role in this project is as the administrator of the CDBG program under which some of the construction called for by the Third LTPO will be financed. Because HUD has delegated the responsibility for NEPA compliance to the City as the recipient of the funds, under HUD regulations the City is the entity responsible for ensuring compliance with applicable environmental regulations.
In accordance with the regulatory scheme, before HUD may approve release of CDBG funds it must receive a certificate of compliance with NEPA from the grant recipient. In this regard, "HUD's responsibilities are limited to assuring that the recipient has complied with the HCDA's procedural requirements." Dickeyville Assoc. v. U.S. Dep't of Housing and Urban Devel. 636 F. Supp. 362, 366 (D.Md. 1986). HUD regulations require it to reject a certificate of compliance only on narrow procedural grounds, not based on the substance of the underlying environmental reports themselves. See 24 C.F.R. § 58.75. The approval of a certification by the Secretary of HUD "shall be deemed to satisfy [the Secretary's] responsibility under [NEPA]." 42 U.S.C. § 5304(g)(2).
24 C.F.R. § 58.75 provides as follows:
Permissible bases for objections.
HUD (or the State), will consider objections claiming a responsible entity's noncompliance with this part based on any of the following grounds:
(a) The certification was not in fact executed by the responsible entity's Certifying Officer.
(b) The responsible entity has failed to make one of the two findings pursuant to § 58.40 or make the written determination required by § 58.35, 53.47 or 58.53 for the project, as applicable.
(c) The responsible entity has omitted one or more of the steps set forth at subpart E of this part for the preparation, publication and completion of an EA.
(d) The responsible entity has omitted one or more of the steps set forth at subparts F and G of this part for the conduct, preparation, publication and completion of an EIS.
(e) The recipient has committed funds or incurred costs not authorized by this part before release of funds and approval of the environmental certification by HUD or the State.
(f) Another Federal agency acting pursuant to 40 CER part 1504 has submitted a written finding that the project is unsatisfactory from the standpoint of environmental quality.
Plaintiff has not argued that the environmental certifications are deficient in any procedural respect or that HUD's acceptance of the certifications was improper based on one of the articulated grounds. Instead, plaintiff claims that HUD should have rejected the compliance certificates and the requests for funds principally because of the EAs' asserted substantive deficiencies. However, that does not constitute grounds for rejecting the certifications. Having properly delegated the responsibility of environmental compliance to a grant recipient, HUD is not required to review the substance of the environmental record. "When a grant recipient files a FONSI, HUD is not obligated to review the environmental assessment on the merits but rather must accept this finding as long as it is assured that the recipient has complied with NEPA's procedural requirements and HUD's regulations." Cornell Village Tower Condominium v. Dep't of Housing and Urban Devel., 750 F. Supp. 909, 924-25 (N.D.Ill. 1990); see also South Portland Avenue Block Assoc., Inc. v. Pierce, No. 87 Civ. 4210, 1988 WL 101306, *2 (E.D.N Y Sept. 28, 1988) (when HUD delegates environmental responsibility "only the applicant is obligated to ensure substantive compliance with NEPA"). "Thus, even if HUD approves a grant for a project found not to conform to the Act, the applicant, not HUD, is answerable." Atlantic Term. Urban Renewal Area Coal. v. NYC Dep't of Env. Prot., 709 F. Supp. 502, 504 (S.D.N Y 1989); see also Heeren v. City of Jamestown. Kentucky, 39 F.3d 628, 632 (6th Cir. 1994) ("[P]laintiff argues that once HUD learned about the allegations that Jamestown was not substantively complying with NEPA, HUD should have taken action. It was not HUD' s responsibility, however, to monitor Jamestown's substantive compliance with NEPA. Plaintiffs argument would require that HUD assume responsibilities that Congress expressly authorized HUD to delegate.").
Since plaintiffs objections to the certifications are not among the permissible criteria for which HUD may reject certifications, D'Agnillo has not demonstrated that HUD violated its regulations in accepting them and in approving the release of the funds. Accordingly, there is no authority for directing HUD to reject the certifications or to enjoin it from disbursing the requested funds.
Before briefing on this motion was complete, the Court was informed by letter from counsel for the City dated September 5, 2000 that HUD has approved the City's requests for release of funds for the Hoover Road, Yonkers Avenue and Grassy Sprain sites. Accordingly, in addition to lacking merit, D'Agnillo's request to enjoin release of the funds is apparently moot.
CONCLUSION
For the foregoing reasons, plaintiff has failed to demonstrate that the Area-Wide EA and the site-specific EAs for Hoover Road, Yonkers Avenue and Grassy Sprain violate NEPA or this Court's orders. Accordingly, plaintiff is not entitled to a declaration that these reports and the resulting FONSIs are null and void or that the City must conduct a fifth area-wide EA before commencing construction on those three sites or on the Yonkers Green development. Plaintiff has also failed to establish that the City's construction of those developments will result in irreparable harm in the form of a significant impact on the quality of the environment of Yonkers, and therefore he is not entitled to an injunction preventing construction from going forward. Finally, because he has not demonstrated that HUD's acceptance of the City's environmental compliance certifications violated HUD regulations, plaintiff is entitled to neither a declaration that HUD must reject those certifications nor an injunction precluding HUD from releasing the funds requested for the Hoover Avenue, Yonkers Green and Grassy Sprain sites.Plaintiffs motion is denied in its entirety.
The foregoing is SO ORDERED.