The opinion of the court was delivered by: McGARR, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs in this case, seeking to assert the public interest,
have been determined by the United States Court of Appeals for
the Seventh Circuit to have standing to maintain this action. The
First National Bank of Chicago, et al. v. Richard Kleindienst,
Attorney General of the United States, et al., No. 73-1324. They
seek to enjoin further construction activity on a building in the
near vicinity of the Everett McKinley Dirksen Building at 219
South Dearborn Street. The project sought to be enjoined is the
third in a series of federal buildings and is known as the U.S.
Courthouse Annex and Federal Parking Facility. It may be assumed,
as the evidence suggests, that the construction of the Annex is
dictated by and will further the efficiency and efficacy of
governmental operations and will particularly be of benefit to
those members of society charged with or convicted of a crime. If
the project is not environmentally sanctioned, however, these
other considerations become irrelevant.
In a complaint filed on December 11, 1972, plaintiffs alleged
failure of the General Services Administration, the agency
responsible for the construction of this project, to comply with
the substantive and procedural requirements of the National
Environmental Policy Act of 1969 (hereinafter referred to as
NEPA), 42 U.S.C.A. Section 4331-4347, Executive Order 11514 and
subsequent Guidelines published in conjunction therewith.
In an order dated March 30, 1973, the District Court denied
plaintiffs' motion for a preliminary injunction against further
construction of the U.S. Courthouse Annex and Federal Parking
Facility. An expedited appeal from this order resulted in a
decision by the United States Court of Appeals for the Seventh
Circuit dated April 26, 1973, which established, inter alia, the
following propositions:
1. That the plaintiffs had standing to sue and bring
about a review of administrative action in this
case;
2. That such delay as was demonstrated in the
bringing of this action did not constitute laches
and was not a bar to the continuing prosecution of
this action;
3. That defendants have an obligation to make a
detailed environmental impact statement pursuant
to 42 U.S.C.A. Section 4332(2)(C), unless an
adequate determination has been made that the
project does not significantly affect the quality
of the human environment; (The statement so
contending has been denominated by the parties in
this proceeding a "negative impact statement".)
4. That it is at least highly probable that the
defendants' determination that the project will
not significantly affect the quality of the human
environment will be found inadequate under the
standard of review in Hanly v. Kleindienst,
471 F.2d 823 (2d Cir., 1972).
The cause was remanded, with instructions, to the District
Court. Pursuant to those instructions an order was entered on May
7, 1973, enjoining further construction of the U.S. Courthouse
Annex and Federal Parking Facility, such injunctive order to
become effective at 5 p.m. on May 26, 1973. In the interim since
the issuance of that order, the defendants have invited and
received objections to the construction of the U.S. Courthouse
Annex and Federal Parking Facility based upon its effect upon the
environment, and after consideration of these and other factors,
the government filed on May 15, 1973, a document
entitled Supplemental Environmental Assessment for U.S.
Courthouse Annex and Federal Parking Facility, Chicago, Illinois.
This supplemental assessment was supported by a large number of
exhibits. The assessment and the exhibits have been admitted into
evidence as Government's Exhibits 1A, 1B, and 1C, and are part of
the record in this case.
On May 17, 1973, the General Services Administration considered
the supplemental data and made the following determination:
"Pursuant to the provisions of GSA Order
PBS-1095.1b, as revised, this is to advise you of our
determination based on review of the Supplemental
Environmental Assessment dated May 15, 1973, that
construction and operation of the U.S. Courthouse
Annex and Federal Parking Facility is not considered
to be a major federal action that would significantly
affect the quality of the human environment."
It is this administrative determination that this Court is called
upon to review.
Plaintiffs contend first that a so-called negative impact
statement is insufficient in the instant case, in that the
project significantly affects the human environment and therefore
requires a detailed environmental impact statement rather than
the negative statement submitted. Plaintiffs further contend that
because the project in issue does significantly and adversely
affect the human environment, the determination of the
administrative agency is capricious, arbitrary, an abuse of
discretion, or otherwise not in accordance with the law or
procedures required by law (Hanly v. Kleindienst, 471 F.2d 823
[2d Cir., 1972]).
Considerable evidence has been submitted to the Court in the
form of the Supplemental Environmental Assessment and testimony
adduced by the plaintiffs concerning the aesthetic,
psychological, environmental, and social impact of the U.S.
Courthouse Annex and Federal Parking Facility. A consideration of
that evidence should be preceded by a reiteration of the precise
issue to be determined by this Court, and to which such evidence
may be deemed relevant. At the risk of repetition, the
administrative determination under review here was that the
construction of this project was not considered to be a major
federal action that would significantly affect the quality of the
human environment. There flows from this conclusion the necessary
determination that if the administrative decision was correct, no
detailed environmental impact statement is required. The
Supplemental Environmental Assessment submitted by the
government, therefore, is not in lieu of, nor can it be
considered as, a detailed environmental impact statement. It is,
rather, a statement in support of the contention that the project
is not a major federal action that would significantly affect the
quality of the human environment, and the evidence submitted by
the plaintiffs must be considered in the context of whether it
depicts a project which is a major federal action that does
significantly affect the quality of the human environment. It is
the function of this Court, in reviewing all of the evidence in
this context, to determine whether the above-described
administrative decision is capricious and arbitrary and an abuse
of discretion.
The controlling statute in this case is Title 42 Section 4332,
and the particular portion of that statute which has application
here is as follows:
The Congress authorizes and directs that, to the
fullest extent possible: (1) the policies,
regulations, and public laws of the United States
shall be interpreted and administered in accordance
with the policies set forth in this chapter, and (2)
all agencies of the Federal Government shall —
(A) utilize a systematic, interdisciplinary
approach which will insure the integrated use of the
natural and social sciences and the environmental
design arts in planning and in decisionmaking
which may have an impact on man's environment;
(B) identify and develop methods and procedures, in
consultation with the Council on Environmental
Quality established by subchapter II of this chapter,
which will insure that presently unquantified
environmental amenities and values may be given
appropriate consideration in decisionmaking along
with economic and technical considerations;
(C) 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 by the
responsible official on —
(i) the environmental impact of the proposed
action,
(ii) any adverse environmental effects which cannot
be avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses
of man's environment and the maintenance and
enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments
of resources which would be involved in the
proposed ...