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Dissenting Opinion
Friendly

FRIENDLY, Chief Judge (dissenting):

The learned opinion of my brother MANSFIELD gives these plaintiffs, and environmental advocates in future cases, both too little and too much. It gives too little because it raises the floor of [p837] what constitutes “major Federal actions significantly affecting the quality of the human environment,” 42 U.S.C. § 4332 (2)(C), higher than I believe Congress intended. It gives too much because it requires that before making a threshold determination that no impact statement is demanded, the agency must go through procedures which I think are needed only when an impact statement must be made. The upshot is that a threshold determination that a proposal does not constitute major Federal action significantly affecting the quality of the human environment becomes a kind of mini-impact statement. The preparation of such a statement under the conditions laid down by the majority is unduly burdensome when the action is truly minor or insignificant. On the other hand, there is a danger that if the threshold determination is this elaborate, it may come to replace the impact statement in the grey area between actions which, though “major” in a monetary sense, are obviously insignificant (such as the construction of the proposed office building) and actions that are obviously significant (such as the construction of an atomic power plant). We would better serve the purposes of Congress by keeping the threshold low enough to insure that impact statements are prepared for actions in this grey area and thus to permit the determination that no statement is required to be made quite informally in cases of true insignificance.

While I agree that determination of the meaning of “significant” is a question of law, one must add immediately that to make this determination on the basis of the dictionary would be impossible. Although all words may be “chameleons, which reflect the color of their environment,” C. I. R. v. National Carbide Corp., 167 F.2d 304, 306 (2 Cir. 1948) (L. Hand, J.), “significant” has that quality more than most. It covers a spectrum ranging from “not trivial” through “appreciable” to “important” and even “momentous”. If the right meaning is at the lower end of the spectrum, the construction of the MCC comes within it; per contra if the meaning is at the higher end.

The scheme of the National Environmental Policy Act argues for giving “significant” a reading which places it toward the lower end of the spectrum. The statute's objectives, 42 U.S.C. § 4321, were “To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; [and] to promote efforts which will prevent or eliminate damage to the environment . . . .” Section 4332 outlines methods designed to insure that “the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the[se] policies.” Most of its provisions are hortatory; the only one with teeth is the mandate in subdivision (2)(C) that each agency must “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 . . .” covering the five items listed in that section, one of which is described in subdivision (D) at greater length. Subdivision (C) also outlines formalized procedures designed to insure that the expertise, knowledge and interest of Federal, State and local agencies, of the public, and of the Council on Environmental Quality (CEQ) are brought to bear on such statements. These have been fleshed out by the CEQ's Guidelines, notably § 10(e), 36 Fed.Reg. 1726 (1971), directing the agencies to develop procedures for the preparation of impact statements which “shall include, whenever appropriate, provision for public hearings.”

It is not readily conceivable that Congress meant to allow agencies to avoid this central requirement by reading “significant” to mean only “important,” “momentous,” or the like. One of the purposes of the impact statement is to insure that the relevant environmental data are before the agency and considered by it prior to the decision to commit Federal resources to the project; the statute must not be construed so as to allow [p838] the agency to make its decision in a doubtful case without the relevant data or a detailed study of it. This is particularly clear because of the absence from the statute of any procedural requirement upon an agency in making the threshold determination that an impact statement is not demanded, although the majority has managed to contrive one.[1] What Congress was trying to say was “You don't need to make an impact statement, with the consequent expense and delay, when there is no sensible reason for making one.” I thus agree with Judge J. Skelly Wright's view that “a statement is required whenever the action arguably will have an adverse environmental impact,” Students Challenging Regulatory Agency Procedures (S.C. R.A.P.) v. United States, 346 F.Supp. 189, 201 (D.D.C.1972) (three-judge court) (emphasis in original), prob. juris. noted, 409 U.S. 1073, 93 S.Ct. 683, 34 L.Ed.2d 662, with the qualification, doubtless intended, that the matter must be fairly arguable. This qualification reconciles the S.C.R.A.P. holding with Judge Gignoux' opinion in Citizens for Reid State Park v. Laird, 336 F.Supp. 783 (D.Me.1972).

Beyond the general scheme of the legislation, a court normally looks for guidance, in the case of a statute calling for administrative action, to the views of those charged with its administration. See Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971); Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965); Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). However, this does not mean that dominating weight should be given to the views of agencies upon whom NEPA placed a duty to make impact statements when the result would be to relieve them from that obligation-particularly when these are “action” agencies like the GSA. The National Environmental Policy Act established its own watch-dog agency, The Council on Environmental Quality. The CEQ Guidelines lend additional support to the conclusion that the threshold determination of significance must be set at a low level. They provide that “if there is potential that the environment may be significantly affected, the statement is to be prepared.” Guidelines § 5(b), 36 Fed.Reg. 7724 (1971) (emphasis added). And they state further, in a remark highly relevant to this case:

Proposed actions, the environmental impact of which is likely to be highly controversial, should be covered in all cases.

Id. This Guideline has been expressly adopted by the GSA in its own regulations, GSA Public Buildings Service Order 1095.1A, Attachment B, § 1(a)(5) (Dec. 2, 1971). With respect, I see no basis for reading this as limited to cases where there is a dispute over what the environmental effects actually will be. Rather, I would think it clear that this includes action which the agency should [p839] know is likely to arouse intense opposition, even if the actual environmental impact is readily apparent. Apart from the former being the natural meaning of the words, the CEQ may well have had in mind that when action having some environmental impact “is likely to be highly controversial,” an agency assessment that the action does not constitute major Federal action significantly affecting the environment is almost certain to evoke challenge in the courts. The CEQ could well have believed that rather than to incur the delay incident to such a suit, and the further delay if a court sustains the challenge-both vividly illustrated in this case where nearly two years have elapsed since the initial assessment that an impact statement was not required and a further remand is being directed-the agency would do better to prepare an impact statement in the first instance.[2] In addition to possibly providing new information making reconsideration or modification of the project appropriate, such a policy has the added benefits of allowing opponents to blow off steam and giving them the sense that their objections have been considered-an important purpose of NEPA, as it is of the British statutory inquiry. See Wade, Administrative Law, ch. 6 (3d ed. 1971). The Guidelines thus reinforce my belief that the scheme of the statute requires us to confine “significantly” to the lower range of the spectrum which that word covers.

I thus reach the question whether, with the term so narrowed, the GSA's refusal to prepare an impact statement for the MCC can be supported. Accepting the majority's standard of review, I would think that, even with the fuller assessment here before us, the GSA could not reasonably conclude that the MCC does not entail potentially significant environmental effects. I see no ground for the majority's doubt “whether psychological and sociological effects upon neighbors constitute the type of factors that may be considered in making such a determination [of significant environmental effect] since they do not lend themselves to measurement.” The statute speaks of “the overall welfare and development of man,” 42 U.S.C. § 4331 (a) and makes it the responsibility of Federal agencies to “use all practicable means . . . to . . . assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings.” Id. § 4331(b)(2). Moreover, § 4332(2)(B) directs that “presently unquantified environmental amenities and values . . . be given appropriate consideration in decisionmaking along with economic and technical considerations.” I cannot believe my brothers would entertain the same doubt concerning the relevance of psychological and sociological factors if a building like the MCC were to be constructed at Park Avenue and East 72nd Street, assuming that zoning allowed it. While the fact that the area here in question contains many office buildings justified this court's previous conclusion that construction of the building to house the United States Attorney and other federal officials would not significantly affect the environment, 460 F.2d at 646, it does not support a similar conclusion with respect to a jail. Although there is a larger New York City jail in the neighborhood, a glance from our own windows will show that it must be nearly or wholly invisible to the 3,000 persons living in the two large cooperative apartments, Chatham Towers and Chatham Green, which “directly face the proposed new jail, some 100-150 feet away.” 460 F.2d at 642. The effect, at least on these people, is thus wholly diferent from the unseen New York City jail several blocks away. Finally, I do not perceive how the expedient devised by the majority to [p840] deal with appellants' arguments relating to the Community Treatment Program and the program for observation and study of non-resident out-patients really meets their points. While I assume that the Government's present intentions with respect to these programs are as limited as it has stated, these may be altered with the passage of time. I see nothing in NEPA that would require a new impact statement if the programs should be augmented as the years pass. This is why, as previously stated, the Guidelines recommend that “if there is potential that the environment may be significantly affected, the statement is to be prepared.” (Emphasis supplied.)

I do not mean anything said in this opinion to imply that GSA will be unable to conclude in an impact statement that construction of the MCC is justified. Furthermore, as I have suggested in another case, “Once it is determined in any particular instance that there has been good faith compliance with those procedures [of NEPA], we seriously question whether much remains for a reviewing court.” City of New York v. United States (II), 344 F.Supp. 929, 940 (E.D. N.Y.1972); see also Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971); Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 838 (D.C.Cir.1972); A. W. Murphy, The National Environmental Policy Act and the Licensing Process: Environmental Magna Carta or Agency Coup de Grace, 72 Colum.L.Rev. 963, 1006-07 (1972). However, as said in City of New York v. United States (I), 337 F.Supp. 150, 160 (E.D.N.Y.1972):

To permit an agency to ignore its duties under NEPA with impunity because we have serious doubts that its ultimate decision will be affected by compliance would subvert the very purpose of the Act and encourage further administrative laxity in this area.

The energies my brothers would require GSA to devote to still a third assessment designed to show that an impact statement is not needed would better be devoted to making one.

I would reverse and direct the issuance of an injunction until a reasonable period after the making of an impact statement.

FootnotesEdit

  1. The majority apparently construes the earlier opinion in this case, Hanly v. Mitchell, 460 F.2d 640, 647 (2 Cir. 1972), as holding that some procedures for public participation are required before making a threshold assessment that no impact statement is required. I cannot agree. The full statement in the opinion was:But in the context of an act designed to require federal agencies to affirmatively develop a reviewable environmental record, this perfunctory and conclusory language simply does not suffice, even for purposes of a threshold section 102 (2)(C) determination.What the court was saying was that “in the context of an act designed to require federal agencies to affirmatively develop a reviewable environmental record” by preparing an impact statement, the agency could not escape the duty of making one, at least in an arguable case, by “perfunctory and conclusory language.” This is a long way from dictating any procedure for public participation in threshold determinations. The discussion in 460 F.2d at 648-649 affords further evidence that the earlier panel did not think there need be public participation before the GSA prepared a revised assessment. In any event, the statute is so clear on this point that I would feel constrained not to follow any contrary dictum, if dictum there were.
  2. The limitation in the Guideline, “which is likely to be highly controversial” (emphasis supplied), answers the majority's fear that following the Guideline would “surrender the determination to opponents of a major federal action, no matter how insignificant its environmental effect when viewed objectively.”