JOHN D'AGNILLO, PETITIONER V. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, ET AL. No. 90-7664 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The Federal Respondents In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. B2-B4) is unreported. The opinion of the district court (Pet. App. C5-C12) is unreported. Earlier opinions of the district court (Pet. App. E28-E38, D13-D27) are reported at 738 F. Supp. 1443 and 738 F. Supp. 1454, respectively. JURISDICTION The judgment of the court of appeals was entered on January 8, 1991. The petition for a writ of certiorari was filed on April 8, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court abused its discretion in denying petitioner's motion to enjoin implementation of certain aspects of comprehensive housing remedial orders entered in an action brought by the United States and private plaintiffs against the City of Yonkers. STATEMENT 1. After a lengthy trial, the United States District Court for the Southern District of New York issued a decision in November 1985, holding the City of Yonkers liable for a pattern and practice of intentional racial discrimination in the selection of sites for public and subsidized housing, in violation of the Equal Protection Clause and Title VIII of the Civil Rights Act of 1968 (Fair Housing Act), 42 U.S.C. 3601 et seq. United States v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1289-1376 (S.D.N.Y. 1985). /1/ Following remedial proceedings, on May 28, 1986, the district court entered its "Housing Remedy Order," requiring the City of Yonkers and the Yonkers City Council to take a number of actions designed to facilitate the development of public and subsidized housing outside of Southwest Yonkers. United States v. Yonkers Bd. of Educ., 635 F. Supp. 1577 (S.D.N.Y. 1986). That remedial plan, after lengthy delays and "a long series of judicial proceedings," Pet. App. E30, now requires the City to develop approximately 4,200 units of low-income housing -- 200 units of public housing as a short-term remedy and 4,000 units (3,200 market-rate units and 800 subsidized units) as a long-term remedy, see ibid. 2. The United States Department of Housing and Urban Development, together with the City and the Fair Housing Implementation Office (FHIO) -- an entity created by the district court in its Housing Remedy Order -- are responsible for carrying out the public housing mandate. Under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., HUD must first consider the environmental impact of the 200 public housing units. NEPA requires all federal agencies to include a detailed statement of environmental effects, known as an environmental impact statement (EIS), "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. 4332(2)(C). If the major federal action does not have a "significant" effect, however, the agency need not prepare an EIS. See, e.g., Town of Orangetown v. Gorsuch, 718 F.2d 29, 34 (2d Cir. 1983), cert. denied, 465 U.S. 1099 (1984). Under governing federal regulations inplementing NEPA, an agency such as HUD, under certain circumstances, may take the preliminary step of preparing an environmental assessment (EA) in order to determine whether or not an EIS is necessary. If the EA process discloses that an EIS is not needed, the agency makes a so-called finding of no significant impact (FONSI). See 40 C.F.R. 1501.4. HUD's regulations in turn provide that "(a)n EA and FONSI or EIS for individual projects shall be completed" before site approval of public housing. 24 C.F.R. 50.17(a)(3). 3. HUD completed EAs for seven public housing sites suitable for 200 units, detrermined that there were no conditions requiring assessment of cumulative impacts, issued a FONSI, and recommended approval of the proposed short-term public housing project. Pet. App. E30; C.A. App. 127-184. As a result, the Yonkers Municipal Housing Authority issued in December 1988 "Requests for Proposals" for 142 units on five sites; similar solicitations were later issued in October 1989 for 58 units on the remaining two sites. In the meantime, petitioner filed this federal court action in August 1989 against HUD, the City of Yonkers, the FHIO, and various government officials. Petitioner sought declaratory and injunctive relief in order to halt further implementation of the Housing Remedy Order, i.e., construction of the 200 public housing units and development of the planned 4,000 market-rate and subsidized housing units. In a series of orders issued in 1990, the district court denied petitioner's claims for injunctive relief, but granted limited declaratory relief. Pet. App. C5-C12, D13-D27, E28-E38. a. On April 4, 1990, the district court found that, for purposes of complying with NEPA, the remedial plan to build 200 public housing units and 4,000 market-rate and subsidized units was not a "single" major federal action significantly affecting the environment. Pet. App. E35-E36. The court therefore held that petitioner's "claim that HUD should perform a single EIS for the 4,200 units is without merit." Id. at E36. The court, however, reserved judgment on petitioner's motion for a preliminary injunction. Id. at E38. /2/ b. On June 8, 1990, the district court denied petitioner's motion for injunctive relief. Pet. App. D13-D27. The court recognized that the "immediate issue is whether the record justifies a stay of construction of the 200 units" because "no proposals have been obtained for any of the 4,000 subsidized units." Id. at D15. It then concluded that "(t)here is no basis in fact or law to stay the construction of the 200 units" because neither petitioner nor the City of Yonkers had shown any imminent irreparable injury. Id. at D16. /3/ The court similarly rejected petitioner's motion to enjoin development of the planned 4,000 subsidized units, because there was no possibility of immediate irreparable harm where no sites had been selected, no proposals had been made, and no construction was on the planning board. Id. at D16-D17. Turning to petitioner's request for declaratory relief, the district court determined that the Supplemental Environmental Review (SER) "constitutes a comprehensive assessment of the potential cumulative environmental impacs of the seven projects." Pet. App. D18; see note 2, supra. The court recognized that an order directing HUD to prepare an EIS, in the circumstances presented, would serve no purpose because the "SER is the functional equivalent of a comprehensive FONSI." Pet. App. D19. The court therefore held that petitioner was "not entitled to declaratory relief in respect of the 200 public housing units." Id. at D20. On the other hand, the court concluded that petitioner was entitled to limited declaratory relief regarding the proposed 4,000 subsidized units (coupled with the 200 public housing units). It held that NEPA requires HUD to prepare an EIS "with respect to the impact of 4,200 additional housing units in the City of Yonkers upon the City's waste disposal system," Pet. App. D25, and "with respect to the cumulative impact of 4,200 additional housing units upon vehicular traffic in the main thoroughfares of Yonders," id. at D26. c. On July 11, 1990, the district court issued its final judgment denying petitioner's outstanding claims for injunctive relief. Pet. App. C5-C12. With regard to the 200 units of public housing, the court concluded that petitioner and the City had faield to show any irreparable injury from the construction of the 200 units of public housing, that the EAs and the SER prepared by HUD -- which had found no significant environmental impact -- complied with NEPA, and that there was no basis in fact or law to stay construction. Id. at C5-C6. The court therefore denied petitioner's "claim for an injunction prohibiting construction of the 200 public housing units pending the preparation of a comprehensive environmental impact statement covering the cumulative impacts of both the 200 public housing units and the 4,000 Long-Term units." Id. at C6. With regard to the proposed 4,000 subsidized housing units, the district court similarly concluded that petitioner and the City had failed to show any imminent irreparable harm sufficient to justify an injunction prohibiting the planning of these units and that there was no basis in fact or law for staying such activities. Pet. App. C7. Accordingly, the court rejected petitioner's request for injunctive relief. 4. In January 1991, the court of appeals summarily affirmed "the judgment of the district court denying declaratory and injunctive relief substantially for the reasons stated in (the district court's) Memorandum Opinion and Order published at 738 F. Supp. 1454 (1990)." Pet. App. B4. /4/ ARGUMENT 1. Petitioner contends (Pet. 8-11) that the courts below erred in considering the SER as part of the administrative record with regard to HUD's compliance with NEPA. That claim is without merit. In Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223 (1980), for example, HUD prepared a Special Environmental Clearance (SEC) after the court of appeals initially found that HUD had not fully complied with NEPA. On remand, both the district court and the court of appeals reviewed HUD's compliance with NEPA on the basis of the SEC. 444 U.S. at 224-227. HUD prepared the SER in this case in an analogous procedural posture. See note 2, supra. Accordingly, the lower courts' consideration of the SER is unexceptionable. 2. Petitioner also claims (Pet. 12-18) that the courts below should have rejected HUD's findings that, for purposes of NEPA, construction of the 200 public housing units would not have any significant environmental impact. This Court has recognized that NEPA imposes on agencies duties that are "essentially procedural." Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. at 227 (quoting Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978)). As a result, the Court has emphasized that "once an agency has made a decision subject to NEPA's procedural requirements, the only role for a court is to insure that the agency has considered the environmental consequences; it cannot 'interject itself within the area of discretion of the executive as to the choice of the action to be taken.'" Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. at 227-228 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)); accord Robertson v. Methow Valley Citizens Council, 109 S. Ct. 1835, 1846 (1989). Here, petitioner makes no substantial argument that HUD failed to comply with NEPA's procedural requirements. Petitioner's fact-specific challenge to HUD's decision fares no better. The district court, upon review of HUD's findings, expressly determined: (T)he environmental assessments and the supplemental environmental review prepared by (HUD), which found that the seven public housing projects, viewed either singly or in the aggregate, will not produce any significant impact on the physical environment, satisfied all requirements of the (NEPA) with respect to the construction of the 200 public housing units. Pet. App. C5. The court of appeals similarly rejected petitioner's attack on HUD's findings. Id. at B2-B4; see Pet. 12. On this record, the courts below properly refused petitioner's invitation to disturb HUD's findings. 3. Petitioner contends (Pet. 18-26) that the courts below erred in permitting HUD to separate the two categories of housing units for purposes of assessing compliance with NEPA. This Court has recognized that NEPA does not require aggregate or comprehensive environmental review if it is not feasible. See Kleppe v. Sierra Club, 427 U.S. 390 (1976); accord Nucleus of Chicago Home Owners Ass'n v. Lynn, 524 F.2d 225 (7th Cir. 1975), cert. denied, 424 U.S. 967 (1976). In this case, comprehensive evaluation of the public housing units and the market-rate and subsidized housing units was both impracticable and impossible -- there were no sites or proposals for any of the latter 4,000 units. If the district court had accepted petitioner's submission and refused to permit HUD to assess the environmental effects of the 200 public housing units independently of a similar assessment of the 4,000 other units, environmental review and development of the public housing units independently of a similar assessment of the 4,000 other units, environmental review and development of the public housing units would have been held in abeyance. Neither NEPA nor common sense mandates such a procedure. 4. Petitioner argues that the district court "imposed an insuperable burden of proof of irreparable injury on (him) in order to grant his plea for an injunction under NEPA." Pet. 26; see id. at 26-33. In NEPA actions, the plaintiff seeking an injunction must establish, among other things, "substantial danger to the environment, in addition to a violation of (NEPA's) procedural requirements." Town of Huntington v. Marsh, 884 F.2d 648, 651 (2d Cir. 1989), cert. denied, 110 S. Ct. 1296 (1990). And the "threat of irreparable injury must be proved, not assumed, any may not be postulated eo ipso on the basis of procedural violations of NEPA." 884 F.2d at 653; see Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542 (1987). That is precisely the standard the district court applied here in determining that petitioner had not shown the requisite irreparable harm to the environment. See Pet. App. D15. /5/ CONCLUSION The petition for writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General MICHAEL JAY SINGER D. BRUCE LA PIERRE Attorneys JUNE 1991 /1/ This Court, having considered on several occasions petitions for a writ of certiorari, is familiar with the procedural and factual background of the litigation between the United States and the City of Yonkers, New York, which began in December 1980. See United States v. Yonkers Bd. of Educ., 635 F. Supp. 1577 (S.D.N.Y. 1986), aff'd, 837 F.2d 1181 (2d Cir. 1987), certs. denied, 486 U.S. 1055 (1988); United States v. City of Yonkers, 856 F.2d 445 (2d Cir. 1988), cert. granted, 109 S. Ct. 1337 (1989) (Nos. 88-854, 88-856, and 88-870), rev'd, 110 S. Ct. 625 (1990), cert. denied, 109 S. Ct. 1339 (1989) (No. 88-855); Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855 (2d Cir. 1988), cert. denied, 109 S. Ct. 1527 (1989); In re Save Yonkers Federation, Inc., 872 F.2d 1021 (2d Cir.), cert. denied, 109 S. Ct. 3217 (1989). We have previously submitted detailed accounts of the history of this litigation. See, e.g., U.S. Br. 2-18, Spallone v. United States, Nos. 88-854, 88-856, and 88-870; U.S. Br. in Opp. 2-7, Yonkers Bd. of Educ. v. United States, Nos. 87-1632 and 87-1686; U.S. Br. in Opp. 2-12, Yonkers Racing Corp. v. City of Yonkers, No. 88-1029. Accordingly, we present here an abbreviated statement of the case. /2/ The court asked the parties for supplementary submissions regarding the following issues: First, whether the proposed 200 units of public housing constituted a single major federal action requiring an assessment of cumulative impact under NEPA; and second, whether the EAs prepared by HUD for the pertinent seven public housing sites complied with NEPA. Pet. App. E38. On April 30, 1990, in response to the court's inquiry, HUD completed a so-called "Supplemental Environmental Review." That review evaluated the sites' cumulative effects on water supplies, waste water and sewage systems, traffic patterns, air quality, and public school system. C.A. App. 333-342. /3/ At the outset, the district court expressly "recognize(d) the City of Yonkers' transformation from a nominal defendant into a full-fleged plaintiff (in this litigation)." Pet. App. D14. /4/ The court of appeals issued its mandate on January 11, 1991. On March 25, 1991, the court of appeals denied petitioner's motion for an injunction pending the filing and disposition of a petition for a writ of certiorari. On April 29, this Court denied petitioner's application to stay the court of appeals' mandate. D'Agnillo v. HUD, No. A-780. /5/ Finally, the record refutes petitioner's challenge (Pet. 33-36) to the alleged inconsistency between the district court's orders of June 8 and July 11. Compare Pet. App. D25-D26 with id. at C7. And any inconsistency between the orders would offer no basis -- on the record presented -- for undermining the court of appeals' judgment rejecting petitioner's claim for preliminary injunctive relief.