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CON. ILL. NAT. B. & T. OF CHICAGO v. KLEINDIENST

May 25, 1973

CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO ET AL., PLAINTIFFS,
v.
RICHARD KLEINDIENST, ATTORNEY GENERAL OF THE UNITED STATES, U.S. GENERAL SERVICES ADMINISTRATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: McGARR, District Judge.

  MEMORANDUM OPINION AND ORDER

I

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.

II

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 ...

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