Opinion
Civil Action No. 02-2207, SECTION "N"
February 27, 2003
ORDER AND REASONS
Before the Court are three motions: (1) Federal Defendant's (HUD's) Motion to Dismiss; (2) Plaintiffs' Motion for Partial Summary Judgment Under NEPA and NHPA and Permanent Injunction until an EIS and the § 106 Review is Completed; and (3) Plaintiffs' Motion in Limine to Strike Intervenor HANO's Submission of Documents Purported to be HUD's Administrative Record. For the reasons that follow, the motion to dismiss is GRANTED IN PART, in that the Court finds this matter unripe, and DENIED IN PART, in that the Court finds a stay and administrative closure to be more equitable and appropriate under the circumstances than dismissal. Plaintiffs' motion for partial summary judgment is DENIED AS PREMATURE, and their motion in limine is DENIED AS MOOT.
I. BACKGROUND
A. Factual Background:
In 1996, the Housing Authority of New Orleans ("HANO") applied to the United States Department of Housing and Urban Development ("HUD") for a grant to revitalize the St. Thomas Housing Development, a decaying 1,510-unit public housing property in New Orleans. HUD agreed to provide a $25 million grant for the project through its HOPE IV program. In addition to obtaining the HUD grant, HANO has brought together state, local, and private funding for the revitalization project (the "Project").
In September 2000, HUD completed its initial review of the Project's impact on historical properties, as required under the National Historic Preservation Act ("NHPA"). This review resulted in a Memorandum of Agreement ("MOA") among HANO, the State Historical Preservation Officer ("SHPO"), and the Advisory Council on Historic Preservation ("ACHP"). However, in November 2001, after it was announced that a Wal-Mart Superstore would occupy a retail space in the Project, HUD reopened the NHPA review (at the SHPO's request) to address certain aspects of the Project's retail component. At the time of oral argument on the instant motions, this review had not concluded.
In July 2002, the plaintiffs (a group of non-profit organizations, including a local merchant's association and a neighborhood association) filed this suit. The complaint seeks: (1) a declaratory judgment finding that HUD and HANO have failed to comply with the NHPA and the National Environmental Protection Act ("NEPA"); and (2) an injunction compelling HUD to withhold all HOPE VI funds from HANO until HANO is determined to be in compliance with NEPA and the NHPA. See Compl. at ¶¶ 108-09.
Subsequent to plaintiffs' filing suit, HUD reopened its NEPA review, which previously had resulted in a finding of no significant impact ("FONSI"). This review has not concluded, and HUD has not yet determined whether to prepare another FONSI or to proceed with an environmental impact statement ("EIS"), a more in-depth review under NEPA.
Pending completion of the reopened NEPA and NHPA reviews, HUD has restricted work on the Project to: (1) infrastructure work on the residential portion of the Project; and (2) environmental remediation, which includes the commercial site.
B. Plaintiff's Claims: 1. NEPA:
NEPA is a "procedural statute." Sierra Club v. Espy, 38 F.3d 792, 802 (5th Cir. 1994). It "does not command the agency to favor an environmentally preferable course of action, only that it make its decision to proceed with the action after taking a `hard look at environmental consequences.'" Id. (quoting Sabine River Auth. v. United States Dep't of Interior, 951 F.2d 669 (5th Cir.), cert. denied, 506 U.S. 823 (1992)). "[W]hile other statutes may impose substantive requirements on an agency, `NEPA merely prohibits uninformed — rather than unwise — agency action.'" Id. (quoting Sabine, 951 F.2d at 676). "NEPA does not prohibit the undertaking of federal projects patently destructive of the environment; it simply mandates that the agency gather, study, and disseminate information concerning the projects' environmental consequences." Sabine, 951 F.2d at 676.
Agencies comply with NEPA by preparing an environmental assessment ("EA") of the project in question and/or an environmental impact statement ("EIS"). An EA "is prepared in order to determine whether an EIS is required." Espy, 38 F.3d at 802. It is "a `rough-cut, low-budget environmental impact statement' intended to determine whether environmental effects are significant enough to warrant preparation of an EIS." Id. (quoting Sabine, 951 F.2d at 676). "An EA must `include brief discussions of the need for the proposal, of alternatives . . ., of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.'" Id. at 802-03 (quoting 40 C.F.R. § 1508.9 (b)). "The EA will come to one of two findings: either that the project requires the preparation of an EIS to detail its environmental impact, or that the project will have no significant impact (a "FONSI") necessitating no further study of the environmental consequences which would ordinarily be explored through an EIS." Sabine, 951 F.2d at 677. An EIS, if required, "must contain `a detailed statement of the expected adverse environmental consequences of an action, the resource commitments involved in it, and the alternatives to it.'" Espy, 38 F.3d at 802 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 401-02 (1976)).
Plaintiffs argue that HUD's original EA was procedurally deficient on its face and did not support HUD's finding of no significant impact ("FONSI"). Specifically, they argue that HUD failed to evaluate environmental impacts of increased traffic, environmental impacts of the substitution of a Wal-Mart, environmental impacts on historic properties, and considerations of environmental justice. If HUD had evaluated these items, plaintiffs argue, it might have found a significant environmental impact.
2. NUPA:
Section 106 of the National Historic Preservation Act provides:
The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building. structure. or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under part B of this subchapter a reasonable opportunity to comment with regard to such undertaking.16 U.S.C. § 470f (emphasis added). Plaintiffs do not contend that HUD's initial section 16 review was deficient under NHPA. Rather, they argue that HUD has violated the NHPA by allowing work on the Project to continue after the section 106 review was reopened.
II. LAW AND ANALYSIS
Plaintiffs' motion for partial summary judgment and permanent injunction asks the Court to "issue a Permanent Injunction which stops all work on the project until such time as an EIS [Environmental Impact Statement] is complete under NEPA and the Section 106 review is complete under NHPA." See Rec. Doc. 8 at p. 23. HUD argues that the Court lacks subject matter jurisdiction to consider plaintiffs' motion because: (1) plaintiffs lack standing; and (2) plaintiffs' claims are not ripe. Because HUD's arguments challenge the Court's jurisdiction, they must be addressed as a threshold matter.
A. Standing:
HUD argues that plaintiffs lack standing to bring the instant action because they fail to meet the case or controversy requirement of Article III of the United States Constitution. The case or controversy requirement is the "`irreducible constitutional minimum' of standing." Bennett v. Spear, 520 U.S. 154, 162 (1997). To satisfy it requires: "(1) that the plaintiff have suffered an `injury in fact' — an invasion of a judicially cognizable interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that there be a causal connection between the injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and (3) that it be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Id. at 167. The party invoking federal jurisdiction — here, the plaintiffs — "bears the burden of establishing these elements," and "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
1. Particularized, Non-Conjectural Injury:
For "a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action." Lujan, 504 U.S. at 577. "[I]t is not sufficient that he has merely a general interest common to all members of the public." Id.; Sierra Club v. Glickrnan, 156 F.3d 606, 613 (5th Cir. 1998) ("the plaintiff must show an injury that is both concrete and particular, as opposed to an undifferentiated interest in the proper application of the law"). HUD argues that none of the plaintiffs have met this requirement. The Court disagrees.
The Lujan court explained the reasoning behind this rule:
To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an `individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to `take Care that the Laws be faithfully executed,' Art. II, § 3. It would enable the courts, with the permission of Congress, `to assume a position of authority over the governmental acts of another and co-equal department,' . . . and to become `virtually continuing monitors of the wisdom and soundness of Executive action.'. . . . We have always rejected that vision of our role. . . . [U]nder Article III, Congress established courts to adjudicate cases and controversies as to claims of infringement of individual rights whether by unlawful action of private persons or by the exertion of unauthorized administrative power. `Individual rights,' within the meaning of this passage, do not mean public rights that have been legislatively pronounced to belong to each individual who forms part of the public.Lujan, 504 U.S. at 577-78 (internal quotations and citations omitted).
"Even in the absence of injury to itself, an association may have standing solely as the representative of its members." Warth v. Seldin, 422 U.S. 490, 511 (1975). To attain such representational standing, an association "must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit." Id. "So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction." Id.
At least two of the plaintiffs have alleged imminent, particularized injuries on the part of their members. The Coliseum Square Association has alleged that its members consist of residents and property owners who live and/or work in the Lower Garden District, a historic neighborhood in the vicinity of the Project site. See Compl. at ¶ 22. A member of the Historic Magazine Row Association has submitted an affidavit stating that he owns a business and a home in the Lower Garden District. See Plaintiffs Opp. Memo, Exh. D. The plaintiffs have alleged that the Project will negatively impact (1) the "neighborhood" qualities of the Lower Garden District, (2) the value of properties due to increased traffic through the neighborhood, and (3) the ability of property owners to market and sell their historically significant properties. See Compl. ¶ 80. For those living, owning property, and operating businesses in the Lower Garden District, these alleged injuries are particularized, imminent, and distinguishable from the general public's interest in seeing that the laws promoting historical preservation and environmental quality are enforced. The nature of the relief sought does not make individual participation indispensable.
Accordingly, the Coliseum Square Association and Historic Magazine Row Association qualify for representational standing, provided the elements of redressibility and causal nexus are met.
Because the Court has decided to stay the matter due to unripeness, it will defer the decision whether to dismiss the remaining plaintiffs. If the matter is reopened, such other plaintiffs shall immediately amend the complaint to establish their standing, if any.
2. Causal Nexus:
HUD argues that the second element (a causal connection between the injury and the conduct complained of) cannot be met because the reviews have not been completed. Plaintiffs response is that their challenge is not to the new EA and MOA that are expected to issue out of the reopened reviews, but to the "old" EA and MOA. The Court finds that the plaintiffs have alleged a causal connection between HUD's alleged actions or inaction and an imminent injury. HUD's reopening of the reviews is more properly directed to the ripeness inquiry, which is addressed below.
c. Redressibility:
HUD argues that the third element (redressibility) is not met because plaintiffs have alleged no injury to start with. Plaintiffs argue that they should not be held to the ordinary standards for redressibility because they are not seeking direct relief, but merely seeking to hold HUD to the procedural requirements of NEPA and the NHPA. See Sierra Club v. Glickman, 156 F.3d 606, 613 (5th Cir. 1998) ("although a procedural rights plaintiff is not held to the normal standards for redressibility, in the sense that the plaintiff need not show that the procedural remedy that he is requesting will in fact redress his injury, the plaintiff must nonetheless show that there is a possibility that the procedural remedy will redress his injury"). The Court agrees. To make the showing of redressibility required of a procedural rights plaintiff, a plaintiff must show that "`the procedures in question are designed to protect some threatened concrete interest of [its] that is the ultimate basis of [its] standing.'" Id. (quoting Lujan, 504 U.S. at 573 n. 8). HUD does not dispute plaintiffs' assertions that NEPA and the NHPA are designed to force consideration of the interests that form the basis of the plaintiffs' standing (e.g., negative effects of increased automobile and/or truck traffic, negative effects on the Lower Garden District and individual properties within that district). Accordingly, the Court finds that the Coliseum Square Association and Historic Magazine Row Association have standing to bring this suit.
2. Ripeness :
HUD argues that plaintiffs' claims are unripe because HUD has reopened the NEPA and the NHPA reviews, both of which are still underway. "In deciding whether an agency's decision is, or is not, ripe for judicial review," the court must consider "both the `fitness of the issues for judicial decision' and the `hardship to the parties of withholding court consideration.'" Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998) (quoting Abbott Labs. v. Garner, 387 U.S. 136, 149 (1967)). Factors to consider are: "(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented." Id.
After oral argument, HANO supplemented the record with an amended MOA. According to HANO, this document completes the NHPA review. However, HUD has in no way indicated to the Court that its section 106 review is complete.
HUD argues that the first factor (hardship to plaintiffs) is not present, particularly given that HUD has forbidden HANO to dispose of any parcel under the proposed Wal-Mart site until the reviews are completed, thereby preventing any construction work from occurring on the retail site. Plaintiffs now argue that HUD is wrong to think that plaintiffs are only concerned with the Wal-Mart aspect of the Project — they say their challenge is to the entire Project, including the residential project, for which infrastructure work is proceeding. However, plaintiffs have failed to explain how they expect to be harmed by the continuation of infrastructure work on the residential portion of the Project or by the environmental remediation that is taking place. Thus, this factor weighs against judicial review at this time.
With regard to the second factor (interference with agency action), HUD submits that judicial review at this time would interfere inappropriately with agency action, giving that the reviews are actively ongoing. Likewise, as to the third factor (value of further factual development by the agency), HUD maintains that the Court will benefit from waiting because to proceed now would entail judicial review of an admittedly incomplete administrative record. Plaintiffs do not dispute that the very issues raised in their complaint are the subject of ongoing, active reviews by HUD. They simply insist that their challenge is to the "old" EA and MOA, not to the new EA and MOA that are expected to issue out of the reopened reviews.
Given that NEPA simply guarantees compliance with a particular procedure, the Court agrees with plaintiffs that their complaint satisfies the minimum requirements of Article III's case or controversy requirement. As plaintiffs point out, HUD does not contend that the "old" EA and MOA are not final agency actions. However, "ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction." Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 733 n. 7 (1997); see also 13A CHARLES ALAN WRIGHT, ET AL, FEDERAL PRACTICE PROCEDURE § 3532.1 (2d ed. 1984 Supp. 2002). A court may find ripeness lacking "even though Article III requirements are satisfied." WRIGHT, ET AL, supra at 118.
This Court agrees with HUD that judicial review at this time is inappropriate in light of the reopened reviews. The ordinary remedy for unsustainable agency findings under NEPA is to remand the matter to the agency "for further consideration." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 549 (1978); see also Federal Election Comm'n v. Akins, 524 U.S. 11, 25 (1998) ("If a reviewing court agrees that the agency misinterpreted the law, it will set aside the agency's action and remand the case — even though the agency (like a new jury after a mistrial) might later, in the exercise of its lawful discretion, reach the same result for a different reason."). In this case, HUD has already undertaken further consideration of the issues raised by the plaintiffs. Under these circumstances, judicial review of the original agency decision would be an unnecessary and inappropriate interference with agency action. This is particularly so given that plaintiffs have failed to demonstrate any hardship that they will suffer as a result of this Court withholding its review until HUD's review is complete.
For these same reasons, plaintiffs' motion for summary judgment and permanent injunction is denied as premature. Plaintiffs' motion in limine, seeking to strike exhibits submitted by HANO in opposition to summary judgment, is moot. The Court does not reach HANO's argument regarding laches.
III. CONCLUSION
Accordingly, for the foregoing reasons, IT IS ORDERED that:
(1) Federal Defendant's Motion to Dismiss is GRANTED IN PART, in that the Court finds this matter unripe for judicial review, and DENIED IN PART, in that the Court finds a stay and administrative closure to be more equitable and appropriate under the circumstances than dismissal;
(2) Plaintiffs' Motion for Partial Summary Judgment Under NEPA and NHPA and Permanent Injunction until an EIS and the § 106 Review is Completed is DENIED AS PREMATURE;
(3) Plaintiffs' Motion in Limine to Strike Intervenor HANO's Submission of Documents Purported to be HUD's Administrative Record is DENIED AS MOOT; and
(4) This matter is hereby STAYED, pending completion of HUD's NEPA and NHPA reviews. Following this Court's ruling on HANO's pending petition for attorneys' fees and costs, this matter will be administratively closed. It may be reopened upon motion by any party.