UNITED STATES' IMMUNITY FROM LOCAL ZONING:
IS THE NATIONAL
ENVIRONMENTAL POLICY ACT OF 1969 THE LAMP WITH THE GENIE IN
IT WHO WAIVES FEDERAL IMMUNITY?
VINCENT A . SIKORA
559
TA3LE OF CONTENTS
I,
Introduction
..
••••
1
A. The National Environments! Policy Act of 1969 and. Zoning
1
Bo
4
The Federal Government and Local Zoning
II, NEPA as Zoning Enforcement Mechanism
10
A. Scope of NEPA Land Use Control Function
.10
B. Federal Agencies1 Interpretation of NEPA
. 17
C.
1. Council on Environmental Quality
17
2. Other Federal Agencies
18
Court Decisions
22
III, Conclusion
560
United. States' Immunity From Local Zoning: Is the National
Environmental Policy Act of 1969 the Lamp With the Genie in
It Who Waives Federal Immunity?
I.
Introduction
A, The National Environmental Policy Act of I969 & Zoning
The National Environmental Policy Act of I969 (NEPA) was enacted "to
declare a national policy which will encourage productive and enjoyable harriGny
"between man and his environment} te promote efforts which will prevent or eliminate damage to the environment and "biosphere and stimulate the health a.nd welfare of man; to enrich the understanding of the ecological systems and natural
reseurces important to the Nation; and to establish the Council on Environmental
Quality."^"
NEPA gave all federal agencies a mandate to consider environmental
impacts in all their activities and especially "major federal actions signifi2
cantly affecting the qu?lity ©f the huiran environment."
NEPA espoused a policy
of the Federal Government working in cooperation with state and local governments to improve the environment, but it is the "continuing responsibility" of 3
the Federal Government to maintain, improve, a.nd enhance environmental quality.
Zoning is the division by law of a territory into classes based on the
character of the land and structures and their peculiar suitability for particular uses, and with uniformity of use within each division.
Tne purposes of
zoning are»
"to lessen congestion in the streets; to secure safety from fire,
panic, and other dangers; to promote health and general welfare;
to provide adequa/te light and air; to prevent overcrowding of land;
tc avoid undue concentration of population; to facilitate the
adequate provision of transportation, water, sewerage, schools,
parks, and other public requirements."
-5
Zoning is a legitimate exercise ©f the state's police power by local government if the regulation is reasonable and has a substantial relation to the public
health, s?fety, morals, and general welfare.^
Tne power of a local government t«
engage in zoning is delegated by the state either directly or through home rule
provisions.- Since the goning power of local governments is derivstive of the state,
561
it is subject to both any express limitations in the state constitution and -en7
sbling legislation, and the supremacy of the federal government.
The issue is whether .NEPA creates a relationship between "federal actions"
and local zoning.
First we will look at the doctrine of federal immunity. Next,
NEPA is considered along with the federal agencies' interpretations ©f NEPA.
Finally, the available case law is reviewed.
In searching for the existence,
nature, and extent ef a relationship created by .NEPA between "federal action"
and l&cal zoning, the language and purposes ©f NEPA should be the beacon of
light which guides our course.
56£
2
Notes on Section I A
1.
National Environmental Policy Act §2, kZ U.S.C. § ^321 (1970), as amended
Pub. L. No. 9^-83 (1975) /"hereinafter cited as NEPA_7#
2. . NEPA § 102 (2)(C). See Council on Environmental Quality, Environmental
Quality - Sixth Annual Report 628-3^ (1975) J hereinafter cited as Sixth
Annual Report J~[
3.
NEPA § 101 (a) & (b).
k.
1 E. Yokley, Zoning Law and Practice § 1-10 (3d ed. I965) /"hereinafter
cited as Zoning Law /; See E. Roberts, Land-Use Planning (2d ed. 1975)
/"hereinafter cited as Roberta /.
5.
U.S. Department of Commerce, A Standard State Zoning Enabling Act (1926),
in Roberts at 3-10» See also Council on Environmental Quality, Environmental
Quality - Fifth Annual Report JjT (197^) / hereinafter cited as Fifth Annual
Report /; Just v. Marinette County, 56 'Wis.. 2d 7, 201 N.W.2d 76I (1972); Golden
v. Planning Board of Ramapo, 30 N.Y.2d 359,. 285 N.E.2d 291, 33** N.Y.S.2d 138,
appeal dismissed, 409 U.S. 1003 (I97I).. "Note that zoning is a form of
'planning'. The zoning map imposed upon the city fixes what portions of it
can be developed as industry, where business is appropriate, and where people
should make their homes. ... This kind of planning is concerned with the
physical dimensions of the city, channeling as it does various activities into mutually ncnabrasive sectors. Whether and when fa.ctories are built, stores
are constructed, or housing is provided depends upon ... the marketplace.
True, zoning influences market decisions in the sense that it is a factor therein, but zoning is not an effort directly aimed a.t economic or social planning."
Roberts at
to 3~50» Many states and regional governments are involved with
lana-use planning and control. See Fifth Annual. Report 87-?2. These organizations are not being considered here directly because it seems that the conflicts that have arisen over the applicatisn of NEPA and land use controls to
federal actions involved only local governments.
6.
Euclid v. Aaibler Realty Co., 272 U.S. 365, 395 (1926).
?•
See Zoning Law
2-1, 2-5.
563
3
B. The Federal Government a_nd Local Zoning
"If any one proposition could command the universal s.ssent of mankind, we might
?xpect it would be this - that the government of the Union, though limited in its
powers, is supreme within its sphere of action....
to mere reasoni
But this question is not left
the people have, in express terms, decided it by saying, 'this
constitution, and the laws of the United States, which shall be made in pursuance
thereof 'shall be the supreme law of the land."1*
This concept and federal con-
stitutional provision have been extended to provide virtually absolute immunity far
the activities of the federal government and its instrumentalities from state
regulation.^
In the matter ef the relationship between the federal government and its instrumentalities, and local zoning ordinances, two issues must be evaluated!
(l)
Does the federal government have absolute immunity from local zoning regulations?,
and (2) Who may claim any such immunity?-^
e.
Though the exajft matter has not come before the United States Supreme Court
if
yet,
the lower federal courts are unanamous that the federal government itself has
absolute inmunity from local building and zoning regulations."' An early case^ involved the U.S. Housing Authority acting through the National Housing Agency (NHA)
which was building emergency housing to house war-workers in Chester, Pennsylvania.
Tne Chester Building Code Ordinate required the approval of an application and
plans by its BuifSlJing Inspector before any building could be constructed within the
city. The NHA refused to submit the items( and ordered its contractor to proceed.
The court upheld the powi-r of the federal agency te proceed without approval of
the local government:
"A state statute, a local enactment or regulation or a city
ordinance, even if based an the valid police powers of a State,
must yield, in case of direct conflict with the exercise by the
... United States of any power it possesses under the Constitution." 7
A shortwhile laterj another suit arose to enjoin the Veteran's Administration
(VA) from completing the construction of a VA Hospital because it violated the
V 8
township zoning ordinace.
A
I
Tne court quickly dismissed the suit forTna.it
ef juris1
zj.
564
dictiorij stating, "Since Sec. Ijk6 of the Revised Code, the only source relied on by
plaintiffs for this court's jurisdiction, fails to confer such jurisdiction, this
action against the
United States ... cannot be maintained...
Recently^ the U.S. Navy was sued by a municipality to enjoin construction of a
housing project within the Town, beca.use, among other allegations, the project vi10
olated the local zoning ordinace.
Ag^in the court was quite explicit:- "the Navy
is exempt from local zoning ordinances.
The immunity of the federal gov.mment from zoning and building regulations has
12
13
1
been extended to include lessors,
contractors, J and licensees
of the federal
government for activities on, or involving, "government property".
In the Tnanet Corp. csse,*^ the plaintiff was the owner of a fivc-acre tract
within the Township which he leased to the United States.
The government intended
to construct a Post Office on the leased site which was zoned as "engineering and
research".
After the Township denied approval of the plaintiff's application for
the post office facility, plaintiff sued for a declaration that the post office facility was immune from local regulations.
In affirming the trial court, the court
adopted the lower court's conclusion "that the United States Government, 'whether
as owner or lessee, is immune from zoning ordinances.'
However, a concurring c-
pinion was quick to point cut "the substantive issue which is involved ... is whether a private owner may invoke immunity from local zoning restrictions by leasing
its property to an entity which possesses sovereign immunity but has net, in fact,
ssssrted it. In my judgment, the owntr-lessor may not take on the mantle of sovereignty in this fashion.
The implications of the majority's decision to the con-
trary thus harbor a farreaching threat to the basic objectives of zoning withsut
17
any corresponding benefit."
In line with the Tns.net Corp. decision is a similar c-se in which a contractor
who built a post office building on government property in direct violation of j.
zoning regulations wa.s held immune because the re?l party in interest 18
was the United
States notwithstanding that the builder was an independent contractor.
Moreover,
it was immat-rial that the government agency contracting
5 6 5 for the construction vi5
olated its own policies because "no consent to be sued in a esse of this nature
having been shewn, it is fundamental that no suit can be maintained aga.inst the
United States."19
The most unsettled, and the most troublesome, immunization is that conferred to
the group of federal licensees.
In the area of immunization from state regulation
for licensees t® construct power projects on "navigible" rivers; the law seems set20
tied that such immunization exists and is absolute within the terms of the license.
However, no cases, other than such power projects, could be found as to the existence
extent, or validity of any immunity conferred on an individual by a federal license.
Numerous questions concerning immunity could be raised in this "gray" area and may
be answered soon a.s the number of federal licensees continue to proliferate.
574.
6
Notes on Section I B
1. KcCulloch v. I-axyland, 17 U.S.. (4 Wheat.) 316, 405-6 (1819).
2.
3.
See Mayo v. United States, 319 U.S.
(1943). "It lies within Congressional
power to authorize regulation ... by the state of federal instrumentalities.
... j/~W_7here ... the government action is carried on by the United States itself and Congress does not affirmatively declare its instrumentalities or property subject to legislation..., the inherent freedom continues." Id. at 4467, 448..
~
See Annot., 6l A.L.R.2d 970 (1958).
C.J.S. Zoning ۤ 135, I37.
101
See generally 81 C.J.S. States § 7 (1953);
'
"
4.
See Hancock v. Train, __ U.S.
96 S. Ct. 2006 (1976); Environmental Protection
Agency v. California ex rel. State Water Resources Control Board, _ U.S.
96
S. Ct. 2022 (1976). These two cases involved the authority of a state to require a federal facility to secure a permit from the state because of pollution
by the facility. The Hancock case arose out of § 118 of the Clean Air Act,
42 U.S.C.. § 1857 f, which requires federal facilities t® "comply with ... state,
interstate, and local requirements respecting control and aba.tement af air
pollution...." Even though the states have primary responsibility for assuring
air quality, the court held that federal facilities need not obtain state permits, and if the state wishes the federal facility to comply with state requirements, then it must seek compliance in Federal District Court. 96 S. Ct. at
2021, 2022.. As to the possibility of state and local regulation of federal
facilities, the court stated^ "Because of the fundamental importance af the
principles shielding federal installations and activities from regulation by
the States, an authorization of state regulation is found only when and to the
extent there is 'a clear congressional mandate', 'specific congressional action*
that makes this authorization of state regulation 'clear ....'" Id. at 2013.
I-'ost zoning regulations are enforced by some sort of a permit system, usually
building permits. Air pollution permits are similar in nature. The court took
a critical view of air pollution permits, "... the permit requirement is not
intended simply to regulate the ajnount of pollutants which the federal installation may discharge. Without a permit, an air contaminant source is forbidden
to operate even if it is in compliance with every other state measure respecting air pollution control and abatement. It is clear ... that prohibiting operation ef air contaminant sources for which the state seeks to require permits ... is tantamount to prohibiting operation of federal installations on
which they are located." M . at 2013.
Tne Water Resources Control Board case is similar except the Federal Water
Pollution Control Act Amendments of 1972, 33 U.S.C. § 115*. were a.t issue.
These cases could be distinguished from the NEPA situation because ef MEPA
being a mere "pelicy" act, or because of the NEPA situations developing the beginning issue of whether federal action must "comply" with local zoning, not
whether a permit is needed. However, considering the jaundice eye the court
uses to view the waiver of federal immunity, one could easily speculate that
absent an express waiver, the court will closely scrutinize the substance of
nonfederal control regardless of the form.
5.
See Zoning Law § 2-25.
6.
United States v. City of Chest-r, 144 F.2d 415 (3d Cir. 1944). Accord Tim v.
City ef Long Branch, 135 N.J.!. 549, 53 A.2d 164 (1947). The Tim esse alse involved the National Housing Agency (NHA) a_nd conflict with a local crdi.ns.nce
Gver supplying housing for persons engaged in national defense activities.
7
However in Tim the NHA was only leasing property for seven years and remodeling
it for 15 agistments where the city's ZGning requirement limited apartments to
six units. "The court followed the City of Chester. 144 F.2d 415, decision that
the Ls-nhs.ii Act, 42 U.S.C.A. § 1521 et seq., did not remove federal immunity
from state and local regulations. 53 A.2d at I67. The court then considered
the extent of sta.te powers
"It is argued that state statutes and municipal ordinances
prescribing zoning regulations for the construction of dwelling units and other buildings, being founded in the police power,
are entirely within the province of each state and that any attempt on the part of the Federal Government to invade that field
... is beyond the scope of the powers delega.ted to it by the
Federal Constitution.
The argument is untenable..... Ibe legislation enacted pursuant to £ the war powers_7 becomes the supreme law of the la/id
and supersedes state and local laws in contravention thereto."
52 A,2d at 167.
7.- 144 F,2d at 420,.
8.
Ann Arbor Township v. United States, 93 F. Supp. 341 (E.D, Mich. 1950).
9.
Id. at 343. By dismissing for failure to find jurisdiction, the court is
either strongly chastizing the plaintiff for a mere failure of procedure, or is
merely recognizing the principle of sovereing immunity and the( obvious, lack of
an exception.
10. Town of Groton v. Laird, 353 F. Supp. 344 (D. Conn. 1972).
11. Id. at 350.
12. Thanet Corp. v. Board of Adjustment of Township of Princeton, 108 N,J. Sup<rr,
65, 260 A.2d 1 (App. Div. I969), petition for cert, denied, 55 N.J,. 36O, 262
A.2d 207 (1970)«
13. City of North Miami v. Grant-Sholk Construction Ce., 237 F. Supp. 573 (S.D. Fla.
1965). Compare Public Utilities Commission v. United States, 355 U.S. 534 (1958)
("The question is whether California may impose this restraint or control on
federal transportation procurement..,. Here the conflict between the federal
policy of negotiated rates and the state policy of regulation of negotiated rates
seems to us to be clear ... as any that the Supremacy Clause ... was designed
to resolve.") with Penn Dairies v. Milk Control Commission, 318 U.S. 261 (1943)
("We may assume ... there is an implied constitutional immunity of the national
government from state ... regulation of the performance by federal officers and
agencies, ef governmental functions. ... But those who contract to furnish supplies or render services to the government are not such agencies and do not perform governmental functions. ... The statutes authorizing the Secretary of Wpr
'to prescribe rules and regulations to be observed in the preparation and submission and opening of bids for contracts...', give no hint of any delegation
to the Secretary or his subordinates of power to do what Congress has failed to
do — restrict the application of local regulations, otherwise applicable to
government contractors, which increase price." Id. at 269, 276.); James Stewart
& Ce. v. Sadrakula, 309 U.S. 94 (l94o)("It is now settled that the jurisdiction
acquired from a state by the United States whether by consent to the piirchc.se
or by cession may be qualified.... Tne Constitution dees not command that every vestige of the laws ef the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the co.ntinua.nce
until abrogated of those rules existing at the time of the surrender of sovcr-
8
568
eignty, ... It ... is possible that the ^~New YorkJ/ safety requirement ... may
slightly increase the cost of construction to the government, but such an increase is not significant in the determination of the applicability of the New
York statute...,. While, of course, in a sense the contract is the means by which
the United States secures the construction of its post office, certainly the
contractar in this independent operation does not share any governmental immunity," Id. at 99. 104, 105.)
14. City of Tacema v. Taxpayers of Tacoina, 37I P. 2d 938 (Wash. 1962),
15. Thsnet Corp, v. Board of Adjustment of Township of Princeton, 108 N.J. Supera
65, 260 A.2d 1 (App. Ml v. 1969), petition for cert, denied, 55 N.J. 30O, 262
A.2d 207 (1970). See Note, Preemption of Local Zoning by Federal Lessee, 1971
Urban L. A. 200 (1971).
16, 260 A.2d at 2.
17„.Id. at 3. The tactic used by the lessor here, if perfected^could be used by
another
lessor to assist the federal agency in avoiding the procedural
formality, supposedly in N3PA, of complying with the local zonking regulations.
18. City of North Miami v. Grant-Sholk Construction C®., 237 F. Supp. 573, 57^ (S.
D. Fla. 1965).
19. Id.
20. City ©f Tacoma v. Tocpayers of Tacoma, 357 U.S. 320 (1958); City of Tacoma v.
Taxpayers of Tacoma, 371 P.2d 938 (Wash. I962).
574.
9
II. NEPA as Zoning Enforcement Mechanism
A. Scope of NEPA Land Use Control Function
Prior to 19?6, NEPA contained no express reference to its involvement with
land use planning and control.
In 1976 an explicit, but conditional, federal land
1
use planning responsibility was added to NEPA.
2
This amendment
to N2PA permits,
under specific circumstances, certain state agencies to prepare an environmental
impact statement (SIS) if, among other things, the "responsible Federal official"
coordinates the statc-agcncy prepared EIS with any state or federal "land management entity", and assesses the impacts if there are any disagreements "on such im3
pacts".
However, the amendment, at best, is an administrative review tool and is
only remotely involved with land use planning.
There is no requirement for input
to the planning process either initially or subsequently, but merely sn after-thefact "look" when a proposal is made to see if the land management entity disagrees
as to the impacts detailed in the EIS.
Even though the actual rele, function, and scope of responsibility of the land
management entity is uncertain, it now seems clear that the agency need not consult the entity until it is about to make a "proposal".
Assuming that the "re-
spohsible Federal official" is so obvious that no administrative
delay will incur
If.
by the process of identifying him, then this official
"provides early notification
to, and solicits the views of, any other state or any federal land management entity
of any action or any alternative thereto which may have significant impacts upon
such state c.r affected Federal land management entity,..."Early notification"
does not necessarily pra-date the "proposed action" as f^-r a.s EISs are concerned.
Read in light of Kleppe v. Sierra Clubhand
Aberdeen and Rockfish R.R. v. Students
7
Challenging Regulatory Agency Procedure', both of which indicate that an EIS is not
required until the agency has formulated a "proposal" of federal action, the "early
notifica_tion" requirement may be meaningless. There are numerous other words which
are crucial to the interpretation and adninistration of this section but which are
undefined.p
Consideration of land use plans and controls seems implicit in both the national
environmental policy declaration9 and the "acticn-forcing" provisions1^* of NEPA.
After stating that it recognizes "the profound influences of population growth,
high density urbanization..., /~and_7 resource exploitation", Congress "declares
that it is the continuing policy of the Federal Government, in cooperation with State
and local governments..., to use all practicable means and measures... to create
and maintain conditions under which man and nature can exist in productive harmony,,
..ff"11
"In order to carry out the policy... it is the continuing responsibility of
the Federal Government to use all practicable means, consistent with ether essential
considerations ©f national policy, to improve and coordinate Federal plans, functions,
12
programs, and resources...."
One type of plan and program that Federal agencies
should use to control the effects of "population growth, high density urbanization.
.., /"andJ resource exploitation" is land use planning.
13
Moreover, the goals of
this national policy J would seem achievable only through the use of some form of
land use planning.
Ibis point is extremely important because the first part' of
NEPA § 102 requires that, "to the fullest extent possible the policies, /"andJ
regulations... of the United States shall be interpreted
14 and administered in accordance with the policies set forth in this Act...."
The "action-forcing" provision of NEPA begins with the directive that, all
agencies "shall utilize a systematic, interdisciplinaxy approach which will insure the integrated use of the natural and social sciences and the environmental
design arts in planning and in decisionmaking...,"1^
The term "environmental de-
sign arts" is undefined in NEPA, but the "plain language" would seem te include the
consideration of land use planning and controls by the federal agency either independently or derivatively using the local, regional, and state land use plans, because by planning the land use and development of an area, an agency is, in effect,
engaging in environmental design.
Federal agencies must "identify and develop methods and procedures... which will
insure that presently unquantified environment?.! amenities and values may be riven
appropriate consideration in decisionmaking...."1^
This does nut direct the quanti-
fication of "environmental amenitites and values", but d&es seek to have "appropriate consideration" be given to these amenities and
A common .~cthld used by
local governments to insure the retention of "s=fe, healthful, productive, and es17
thetically and culturally pleasing surroundings"
in the midst of "the profound influences of population growth, high-density urbanization, ./~*and_7 industrial expan18
sion"
is land use planning and zoning enforcement.
There appears, then; to be a
pre-existing consideration of "environmental amentities and values" that federal
agencies may use to satisfy this requirement in all areas where such land use plans
and The
zoning
exist.
heart
of N'SPA is the impact statement requirement for "every recomn-.ends.tion
or report on proposals for legislation and other major Federal actions significantly
19
affecting the quality of the human environment."
One way of analyzing this thres-
hold issue would be that^ since land use planning and zoning are a means of managing
the "quality of the human environment", then "major Federal actiens" would significantly affect the quality of the human environment if they did net conform to existing land use plans and zoning. However^ by locking at the required content of a.n
EIS, one may glean additional implied references to the need to consider land use
P^I'Pq) snd zoning.
The "environmental
impact"2^ and "any adverse environmental ef21
fects which cannot be avoided"
require consideration of other immediate and near-
by activities in relationship to the proposed action.
These activities cannot be
divorced from the local land use plan and zoning, because their existence, continuance, and future depends on what is contained in the land use plan and zoning ordinate.
Moreover^ the magnitude of the impact would seem to depend, in part, on
what is the highest and best use ofjthe land as embodied by the land use plan. "Al22
ternatives to the proposed action"
would require a consideration of both modifi-
ca/tion of the action on the selected site and change of sites.
Performance sta.n4
dards derived frcra the building code rnd zoning ^rdina^es would be a minimal considerationjand any change of sites again directly confronts the zoning situation.
In considering "the relationship between local short-term uses of Iran's en°
23
viranment and the maintenance and enhancement of l^ng-term productivity" , the
l
agency must engage in predicting, planning, and modeling of the future ef the environment.
This^similar in mef^r-dolcgy snj^tgectives to that espoused in land use
planning and zoning.
By setkirg the "highest and best use" of the available land
resources, the land use plan should maximize "long-term productivity".
However,
land use planning cannot prevent "any irreversible and irretrievable committments
24
of resources"
, because it assumes the use of land resources but seeks to control
and direct land development.
Nevertheless, by complying with the local a.nd region-
al land use plan, the Federal agency can mitigate any impact created by its land use.
All federal agencies must "make availa.ble to States, counties, /"and// municipalities ,!I*e advice and information
25 useful in restoring, maintaining, and enhancing
the quality of the environment."
at least; two different waysj
This duty of federal agencies can be viewed in^
(i) a duty to merely make available specifically ap-
plicable environmental information on the area or general environmental science information, and/or (2) a duty to inform^ early^ the states, counties, and municipalities
of the plans that federal agencies have for development in the area. This latter
duty seems the most useful form of information which could be used to restore, maintain, and-enhsnce the quality of the environment because the anticipated federal
development could be incorporated into the local land use plan for an orderly, and
productive development of the area.
Finally, NEPA directs the federal agencies to "initiate and utilize ecological
26
information in the planning and development of resource-oriented projects."
ogy is a. study of the interrelationships of living organisms.
Ecol-
Ecology is not inde-
pendent of human activity, but, on the other hand it should not be dependent on
human activity.
"Ecological information", therefore, should include the individual
and sumj of the organisms relationships including humans since humans are also living organisms which relate to and effect other organisms.
Tnis "human ecology" is
inclusive and descriptive while the study cf natural ecology is limited and hypothetical.
Moreover, ecolegical information has its greatest value in predicting
the influence of human environmental changes, and therefore cannot be separated
from the actual human impact made or which will be made.
Since land is a resource
and ecological information includes all organic relationships, then federal agencies
must plan the development of the land by evaluating human and all other organisms
(plant and animal) activities.
This could be either a limitation of the use of
local land use plans which seldom include consideration of the "natural ecology",
or an expanded use of such plans because they usually are derived from the recognition or study of human relationships,
A recurrent theme throughout NEPA is the concern for the reasoned, justified,
and balanced utilizationjand development^of the environment.
Viewing NEPA in this
panaramic picture, all the attributes of the environment should be thoroughly considered in the process of decisionmaking.
One attribute is the land use patterns.
The l~nd use pattern attribute is defined as "... natural or imposed configurations resulting from spa/tial arrangement of the different uses to which plots of
ground are put at a particular time.
Land use patterns evolve as a result of (l)
changing economic considerations inherent in the concept of highest and best use of
land, (2) imposing legal restrictions (zoning) on the uses of land, and (3) changing
(zoning variances) existing legal restrictions.
The critical consideration is the
extent to which any changes in land use patterns resulting from an action are compatible with.-existing adjacent uses ?~nd in conformity with approved or proposed
27
land use plans." ' However, this so called "environmental attribute" is not an independent variable, but is inherently derivative of the Council on Environmental
Quality (CEQ) Guidelines and the Maryland-National Capital, Park
and Planning Cor.n 23
mission v. U.S. Postal Service, kQ7 F.2d 1029 (D.C. Cir. 1973).
574.
14
Notes on Section II A
1.
Pub. L. No. 94-83 (August 9, 1975).
2.
This 1975*amendment to NEPA was the first since its passage in 1969*
3.
NEPA § 102 (2)(D). An initial question might be whether such impacts include or exclude mere disagreement with the appropriate la.nd use plan. The
term is undefined,and a strong argument could be made for either inclusion or
exclusion.
4.
This function seems non-delegable a.nd must remain within the performance by the
federal official.
5.
NEPA § 102 (2)(D).
6.. Kleppe v. Sierra Club, _ U.S.
See generally Sixth Annual Report at 646-9.
96 S. C£. 27I8 (1976).
7.
Aberdeen and Rockfish RR. v. Students Challenging Regula/tGry Agency Procedure,
422 U.S. 289 (1975).
8.
See Conservation. Society of Southern Vermont v. Secretary of Transportation,
531 F.2d 637 (2d Cir, 1976).
9.
NEPA R 101,
10. Id. § 102.
11. Id. § 101 (a). Language similar to that in NEPA regarding state and local cooperation is in the Environmental Improvement Act of 1970. However "this general commitment... does not ... overcome" an area of federal preemption. Lockheed Air Terminal, Inc. v. City of Burbank, 457 P.'2d 667 (9th Cir. 1972), aff'd,
4ll U.S. 624 (1973).
12. NEPA § 101 (b).
13. Id.
14. Id. § 102 (1).
15. Id. (2)(A).
16. Id. (3).
17. Id. 5 101 (b)(2).
18. Id. (a).
19. Id. G 102 (2)(C).
20. Id. (i).
21. Id. (ii).
22. Id. (iii); NEPA § 102 (s).
^
23. NEPA § 102 (2)(c)(iv).
15
2'+. Id. (v).
25. Id. (G).
26. Id. (H)„
27. U.S. Army, Handbook for Environmental Impact Assessment 37^ (197*0.
28. Id. at 37^-7.
This section closes with a final comment}
"On the surface, it would appear that proposed land use plans,
policies, or controls as well as those which generally address,
land use without supportive legal instruments... would not be as
binding — or taken into account to the same degree — as would
those specifically and carefully drawn, officially enacted or
promulgated, and having the support of legal precedent. However,
the language of the... CEQ Guidelines is rather unequivocable....
Time and precedent will determine how this element of the guidelines is interpreted in practice."
Id. a.t 38I.
But see U.S. Geological Survey, Circular 64_5, A Procedure for Evaluating Environmental Impact Plate 1 (I97I) which illustrates an "Information Matrix for
Environnental Impact Assessment" and includes along the vertical axis of the
matrix, describing the "Existing Characteristics and Conditions of the Environment", a sub-section on ''land use" uctdsr the section "cultural factors". Tne
U.S. Geological Survey manual was published tw® years before CEQ issued its
Guidelines requiring consideration of local land use plans.
576
16
B.
Fedirsl agencies' interpretation of NEPA,
1,
Council on Environmental Quality,
The Council on Environmental Quality (CE^) was created by Title II of
N'EPA, and was given general advisory duties relating to its position in the Executive
Office of the President.1
Kowever, CEQ's power to interpret NEPA and to guide the
2
preparation of EISs wa.s the result of a later Executive Order.
CE^ has performed
F
~
its duty and issued its /inal Guidelines.
The CSQ Guidelines,though created and published by Executive Order and codified
in the Code of Federal Regulations, are not legally binding on any federal agency,
but are merely "advisory".
Tnis shortcoming on CEQ's power** has been disregarded
by some federal courts which find the Guidelines highly persuasive because of CEQ's
5
status and expertise \ but(on the other hand,some courts have found the Guidelines
are merely advisory and without authority, and have decided the cases based on its
own interpretation of '4EPA.^ Regardless of which court usage is followed, the
fact remains that the Guidelines are the chief federal environmental agency's interpretation of NEPA, are codified, have the force of an Executive Order behind
them, and are nearly unanimously followed by all the federal agencies.
The first CEQ Guidelines appeared in 1970.'' These "Interim Guidelines" required the coverage of six points in the EIS.3 The six points closely tracted the
requirements ©f a detailed statement in NEPA.
There was only one mention of con9
sideration of land use; and no mention was ma.de as to coordination of the federal
action with a land use plan.
u«S
10
A second set of Guidelines
published in 1971•
Even though the breadth
t
and scope of coverage of the Guidelines >££5 expanded, the required content of the
EIS regarding land use considerations remained unchanged.11
The subsequent history of the second set of Guidelines is unclear.
Tnere was
an investigation of the EIS process by the General Accounting Office (GAO) in 1972.
The GAO report12 severly criticised the CEQ and other federal agencies for inade1T
quately implementing NEPA.
Congressman John Dingell (D. Kich.), in light of the
GAO report, asked CEQ to review the Guidelineg-^i^ requested a report from them by
17
14
February 1, 1973.
CEQ published a proposed new set of Guidelines on Kay 2, 1973,
and solicited comments thereon.^
After numerous comments on the proposed Guide-
lines were received and considered, CEQ published its final Guidelines on August 1,
1973.16
The new Guidelines were, in many aspects, a significant departure from the
earlier Guidelines.
Besides the motivation behind' the preparation of the new
Guidelines as noted above, the new Guidelines were also modified in response to two
general themes presented by comments on the proposed Guidelines of I*:ay 2, 1973«
CEQ sought to "increase the opportunity for public involvement in the impact statement process" and t* "provide more detailed guidance on the responsibilities of
17
Federal agencies in light of recent court decisions interpreting the Act."
One significant departure in the new Guidelines was the requirement that impact statements cover "the relationship of the18
proposed action to land use plans,
policies, and controls for the affected area."
This new requirement for impact
statements was even a departure from the proposed Guidelines published three
months earlier.
No statement has been found as to why this new requirement was
added.19
2. Other federal agencies.
NEPA is directed ta the Federal Government and all its agencies. The
Policy Declaration in NEPA is framed in terms of "it is the continuing policy
20
^"responsibility^
the Federal Government...."
In the "action-forcing"
previsions of NEPA, Congress directed that "all agencies ®f the Federal Government
21
shall...,"
Each federal agency was to review its "present statutory authority,
administrative regulations, and current policies and procedures for the purpose
ef determining whether there are any deficiencies or inconsistencies therein
22 which
prohibit full compliance with the purposes and provisions of this Act...."
No-
thing in the duties and functions of CE^ in NEPA would seem to detract from the
preceding directives of Congress.2-^ However, CEQ's authority was expanded by
Executive Order.24
13
Most federal agencies whose actions may significantly affect the environment
have established EIS procedures derived from the basic structure in the CEQ Guidelines.
25
After reviewing the implementing Guidelines of several agencies, I could
detect no significant deviation from the CEQ Guidelines, except for those agencies
which have not revised their Guidelines since the CB£ Guidelines were revised in
26
1973.
574.
19
NOTES ON SECTION II B.
I.
NEPA §§ 202, 204.
2o
Exec. Order No. 11514, 35 Fed. Reg. 4247 (1970).
3.
40 C.F.R. § 1500 et. seq. (1975). See generally Comment, The Council on Environmental Quality's Guidelines and Their Influence on the National Environmental Pclicy Act. 23 Catholic U. L. Rev. 547 (1974).
4.
The chairman of CEQ, Mr. Russel Peterson, feels that CEQ should not "be the enforcer of NEPA or of its own Guidelines, and he would not support any legislation to change the existing distribution of power. See 6 Env. Rep._ 1443 (1975).
5.
Environmental Defense Fund v. Tennessee Valley Authority, 339 F. Supp. 806, 811
(E.D. Tenn.), aft'd, 468 F.2d 1164 (6th Cir. 1972).
6.
Greene County Planning Beard v. Federal Power Commission, 455 F.2d 412, 421
(2d Cir., 1972), cert, denied. 409 U.S. 849 (1972).
7.
35 Fed. Reg.. 7390 (I97O).
8.
NEPA § 102 (2)(C).
9.
35 Fed. Reg.. 7390 (1970), § 7 (a) "The following points are to be covered:
(i) ... For example, the implications, if any, of the acticn for population distribution or concentration should be estimated and a_n assessment made of the effect of any possible change in population patterns upon the resource base, including land use...."
10.
36 Fed. Reg. 7723 (1971).
II. Id. at 7724, § 8.
12. General Accounting Office, Adequacy of Selected Environmental Impact StateTTcnTS" r"rcl?CTcTi
A"C L of 1^69
13- 3 Env. Rep. 909 (1972).
14. Id. at 910.
15. 33 Fed. Reg. IO856 (1973).
16.. Id. at 20550; 40 C.F.R.. § 1500 et. seq. (1975).
17.-Id.
18. 40 C.F.R. § 1500.8 (a)(2) (1975). "The following points are to be coveredi ...
the relationship of the proposed action to land use plans, policies, and controls
for the affected area. This requires a discussion of how the proposed action
may conform or conflict with the objectives and specific terms of approved or
proposed Federal, State, and local land use plans, policies and controls, if
any, fer the area affected, including those developed in response ta the Clean
Air Act or the Federal Water Pollution Control Act Amendments of 1972. Where
a conflict or inconsistency exists, the statement should describe the extent
to which the agency has reconciled its praposed action with the plan, policy
or control and the reasons why the agency has decided to proceed notwithstanding the absence of full reconciliation." Id.
580
on
19. In Council on Environmental Quality, Environmental Quality - Fourth Annual
Report at
hcrcinaiter ciiecTas fourth AnnuaT heport, J U i s cussea the new Guidelines but made no mention ol Ufe "con±ormarice wi'th land
use plans" requirement. The new Guidelines were discussed in the Environment
Reporter, and it was noted that the land use provision had been changed in the
Final Guidelines from the proposed Guidelines, but no mention was made as t«
why the change occurred. See 4 Env. Rep. 559 (1973). C E Q issued a memorandum
on August 2, 1973, t© all federaj. agencies outlining steps to be taken for preparing EISs. Tbe memo noted a major change in the grouping of areas of environmental impact to include "land use and management", but no mention was made ?s
to the change in the EIS content regarding land use plans. See Id. at 680-81.
One author believes "the Guidelines further indicate full awareness of the relationship of environmental impact of a particular project to existing or
projected land use plan activities." F. Grad, Treatise on Environmental Law
at 9-82 (1975). Another author merely~n<Tted. "the change without discussing the
rea.sons for it, nor its impact. See Comment, The Council on Environmental
Quality's Guidelines and Their Influence on the National Environmental Policy
Act, 23 Catholic U. L. Rev. 547. 5?2 (197*U. Other than possibly a number of
critical comments Deceived about the proposed Guidelines which, in turn, suggested the land use provision, there appears two other possible motivating
factors for the change in requirements. One is the President's State of the
Union "essage on Natural Resources and the Environment on February 15» 1973»
which declared, "but because land is a national heritage, the Federal Government must exercise leadership in land use decision processes, and I aja today
again proposing that we provide it." Fourth Annual Report at 444. A second,
possible; motivating source is court decisions wnich will be discussed later.
20. NEPA
101, 102.
21. Id. § 102 (2).
22. Id. S 103.
23. See Id. § 204.
24. Exec. Order No. 11514, 35 Fed. Reg. 4247 (1970).
25. See Council on Environmental Quality, Environmental Impact Statements —
Analysis of Six "Years' Experience by Seventy Federal Agencies 5 (1976).
An
26. See Generally Id; c.p:. U.S. Army Corps of Engineers! "Environmental statements
will be based on CEQ 'Guidelines'..39 Fed. Reg. 12740 (1974); U.S. Energy
Research and Development Administration! "(7) Relationship of proposed a.ctian
te land use plans, policies and controls.", Id. at 5625; Tennessee Valley Authority! " ( c ) The relationship ef the proposed action to land use plans, policies,
and controls for the affected area.", Id. at 5673j
Federal Power Commission's
Guidelines for Preparation of Applicants' Environmental Reports which requires
consideration of the present uses and characteristics of the land area and a
"list of all authorities consulted for obtaining permits, licenses, and certificates, included zoning approvals needed to comply with applicable statutes
and regulations." 38 Fed. Reg. 15946-52 (1973).
This requirement for EIS content is stressed here because CE^ obviously intsnds federal agencies to also consider these requirements when preparing an impact assessment. CEQ h-->s ?lso ar.alyzed the threshold issue in its Guidelines,
but, since the imuact analysis is the preliminary step taken to arrive at the
threshold'issue and CSQ's Guidelines for an EIS controls the analysis, the required SIS contents bear heavy on the threshold issue.
21
581.
C. Court Decisions.
The relatively few cases involving NSPA and local zoning can be divided
into two classes:
(l) suits against a local zoning authority,1 and (2) suits by a
2
local authority, or group of citizens, against a federal agency.
should be further subdivided into three groups:
The latter class
(a) suits on the threshold issue
of whether an action wa.s "major federal action significantly affecting the quality
of the human environment"; (b) suits on the substantive content of an SIS; and (c)
suits on the final decision of the agency to act after filing s.n EIS. Unfortunately, it seems that there are no esses
on the latter two groups in regard to viola3
ticn of local zoning ordinances.
The two suits challenging the action of the local zoning authorities were decided on the ground that the authority was not a. federal agency. In Tolman Iannis
dry , the District of Columbia Zoning Commission had rezoned a large tract of land(
and the plaintiffs sued for a preliminary injunction to enjoin enforcement of the
zoning order until anjf EIS was prepared.
Even though the zoning change had been
recommended by a federal agency, the National Capital Planning Commission, the court
held that NEPA was not applicable to action by the Zoning Commission because it was
independent of} and not^ a federal agency.^ The issue of the local agency being in
partnership with a federal agency^, and therefore subject to NEPA, was not raised,
but may be a potent argument if a federal agency scught
7 rezoning of an area by a
local government in order to circumvent filing an EIS.
o
The Bid sr.man v. Morton
c^se involved the U.S. Dep-rtment of the Interior (DDI
and certain municipalities surrounding Fire Island National Seashore who were issuing construction permits and zoning variances for Fire Island.
Tne plaintiffs
sued to enjoin the municipalities' actions on Fire Island pending completion of an
EIS by DOI. After reviewing the nature of the relationship between DOI and the
municipalities, and DOI's authority under the Fire Island National Seashore Act,
the court affirmed the denial c-f a preliminary injunction:
"But, as we have attempted to make clear, the federal government does not have what we characterize as 'go-ahead* powers
over the z Q n i n g decisions of the Sesshore municipalities....
22
/ T_J7he Secretary of the Interior... is authorized merely to acquire by condemnation 'improved property* not zoned in an approved
manner. At the present time, moveover, even this circumscribed option is not available to the Sedretary because... the jT'iaoaeyJ appropriated by Congress has been spent or earmarked for committed
expenditure." 9
Turning to the cases in which a local government or group of citizens sued a
federal agency on the threshold issue of whether an SIS must be prepared if the
federal action is not in accordance with the local zoning ordinace, one of the
earliest cases was Town of Groton v.
Tne. U.S. Navy has a large complex,
a Naval Submarine Base, in Groton.. The Navy, pursuant to its Master Plan for the
area and after preparing an environmental assessment which considered "health,
safety, local socio-economic factors, transportation systems, vehicular and air
traffic patterns, utility systems, public services, and aesthetics,"^ began construction of a 300-unit multi-family, residential complex for its employees in
Groton because of a continuing housing shortage.
The area in which the con-
struction was taking place was zoned single-fajnily residential with greater minimum set-back, a.nd dwelling area requirements than the Navy construction specificaticns.
Tne T e w sought to enjoin construction until and EIS w-s prepared.
Tne
court held in favor of the Navy, finding its action not to prepare an EIS was
12
"neither illegal, arbitrary, nor capricious...."
However, the court decided a
number of issues which need further eXEmination.
First, the c-^urt did not view the zoning ordinance of the Town as controlling
the Navy's compliance with NEPA.
In fact, the court only looked to see if there
w.-s "substantial compliance" with the local zoning.
Tne court felt that mere con-
sideration by the federal agency ef the factors usually associated with zoning decisions was in itself sufficient.
Next, the court in no uncertain terms divorced NEPA and federal actions from
local zoning controls, at least insofar: as housing projects was concernedj
"Quite apart from the fact that the Navy is exempt from local
zoning ordinances, NEPA is not a sort of Keta-zoning law. It is
not designed to enshrine existing zoning regulations on the
theory that their violation presents a threat t® environmental values. "SPA ma.y net be used by communities to shore up
large lot and ether exclusionary zoning devices that price
23
583
out Isw and even middle income families."
The court did not stop there "but wenA on to say that even if unavoidable adverse effects could be shown, "...it has no relevance t© the Baily Hill project. People
have to have somewhere t« live. There is no question that Groton has a serious
housing shortage."1-'
Finally, the court dealt with the alternative of selection of another site in a
nearby town for the housing project.
The court shifted the burcenjof disproving the
Navy's conclusion in its assessment that the proposed action was the only known alterna.tive; t® the plaintiff, a.nd reinforced the ITavy's conclusion with some of its
own "obvious" reasons for considering only one site.
Tnroughout the opinion, the court seems to justify the means used by the Navy by
the contemplated end - increased supply of low and middle income housing.
If this
type of assistance by the court was necessary for federal agencies to justify their
projects, there would have been no need for NEPA because federal agencies seemed to
have been doing extremely well in rationalizing their actions even without any help
from the courts. However, the court's reasoning regarding NEPA and local zoning
seems compelling.
The leading ca.se in establishing a direct relationship between NEPA and local
zoning is the Maryland-National Capital Park and Planning Commission v. U.S. Postal
Service^^
The Postal Service wanted to construct a Bulk Kail Center on 63 acres of
land in Prince George's County, Maryland.
The U.S. Army Corps of Engineers per-
formed an environmental assessment of the project and found no significant environmental impacts from the project.
The Commission felt that the proposed structure
did not fully comply with the zoning ordinance far the sx&a^ but approved the project
as long as though it was placed entirely within the area zoned I-3. After about an
13 month delay because of changes in the structure of the Postal Service, the Service decided to proceed with the project as originally planned which included constructing the Center in the 1-1 zone.
which had progressed to
The commission sued to enjoin construction
of completion of Phase III. Tne District Court denied
the motion for a preliminary injunction,
and the Commission appealed.
The iusue in the cs.se was whether the Postal Service was "unreasonable" or "sr18
bitrary" in failing ta file and EIS.
In order to evaluate this issue the court
specifically looked at two factors, only the first of which will be considered herej
(l) NEPA and local zoning, and (2) NEPA and anesthetics.
In regards to NEPA and zoning, the court first hypothesized if the federal agency
complies with the local zoning ordinance.
"When local zoning regulations and procedures are followed
in site loca.tion decisions by the Federal Government, there is
an assurance that such 'environmental' effects as flow from special
uses of land... will be no greater than demanded by the residents
acting through their elected representatives. Tnere is room
for the contention, and there may even be a presumption, that such
incremental impact on the environment as is attributable to the
particular land use prc-posed by the Federal agency is not 'significant', that the basic environmental impact from the project
derives from the land use pattern, approved by local authorities,
that prevails generally for the same kind of land use by private
persons." 19
This is pure dicta because the Postal Service had not complied with the local zoning ordinance.
However, consider what the court is sayingj
the federal a.gency may
be Pontius Pilate and wash its hands clean of any environmental impact because the
course of the land use pattern^ as embodied in the zoning ordinance's not its decision^but that of the local populace.
Tnere may be some assurance that if the a-
gency complies with the zoning ordinance, the environmental effects will not be controversial. However, the strength of this assurance as related to environmental im20
pacts is questionable.
Moreover, it has to be seriously debated whether this is-
sue should even be considered under NEPA^because NEPA involves the abstract concept ©f "human environment" and does not degrade itself to merely considering "what
the neighbors think".
Also, serious problems may arise in such a rule because fedsr-
al-na.tional policy frequently conflicts with local desires, and national policy
should not be subjugated to such local-parochial concerns.
Tne most troublesome
aspect of the court's opinion has to be its creation of a situation granting absolution to federal agencies. NEPA responsibilities sheuld not, and can not, be
581.
25
delegated a.way in this fashion^ because the principle of NEPA was to declare a "continuing responsibility" of the federal government which the courts cannot delegate
sway. The court talks about "incremental impact" but fails to realize that all
federal actions, except for possibly an accidental explosion, are incremental. A
federal structure does not arise overnight^ but the relatively short time period for
its erection may create a substantial environmental impact over that which previous-
21
ly existed and which must be assessed.
The "bla.me" for the impact cannot be shif-
ted to the loca.l government^ beca.use NEPA directs all federal agencies to prepare a
detailed statement for all "major federal actions significantly affecting the quality of the human environment," and NEPA contains n® language which allows a court
to transform federal impact into local impact at the court's discretion.
Tnis ccurt now will "closely scrutinize... and engage in a 'hard look' at the
decision not to file an impact statement, due to deviation from local zoning procedures, while restricting ^"theirJ7 consideration to legitimate environmental effects...."22
"When on the other hand, the Federal Government exercises its
sovereignty so as to override local zoning protections, NEPA requires more careful scrutiny. NEPA has full vitality, and its
policies cannot be taken as effectuated by local land use controls, where the proposal ef the Federal Government reflects a
distinctive difference in kind from the types of land use, proposed by private and local government sponsors that can fairly
be taken as within the scope of local controls. Ibe same consideration may apply where there are differences in degree so
great as t® make a difference in kind or where potential environmental effects extend geographically beyond the control of one
independent local or regional government.,.. Rot all deviations
from local zcning will necessarily rise to the level of affecting the 'quality of human environment*.... We think £ the impact from people pollution_7 cannot fairly be projected as having been within the contemplation of Congress." 23
We must keep in mind t'nart the court is only considering the threshold issue of
whether to prepare an EIS^ a.bout which the court had already said that the threshold
24
for deciding to prepare an EIS is "relatively low".
Nevertheless, it seems the
ccurt is applying an even mere exacting standard of review of decisions not to prepare an EIS for federal actions not in compliance with local zoning than previously
existed and justifying its actions based on HEPA. I cannot agree with the court be26
581.
cause I can find neither the authority nor a rationale for such^paramount place for
lociil zoning in NEPA, and the court did not elaborate as to where it found it except
25
the phrase "quality of the human environment".
Moreover, the court's interpretation
of that phrase seems contradictory because, <wi one hand, the phrase is used to raise
the importance of local zoningj but, on the other hand, the court says that "human
environment" does not include consideration of "people pollution" which is both a
primary consideration in local zoning decisions and,
1 also,
1 a fundamental factor in
what an average person would consider as part of the "human environment".
Finally,
since NEPA contains no express requirement that federal agencies consider local zoning ordinances, the court, by requireing such consideration, is, in effect, waiving
a part of federal supremacy on a very tenuous construction of NEPA.
26
The last case to consider the relationship between major federal actions and
local zoning is Nucleus of Chicago Homeowners Assoc. v. Lynn.
The Association
sought to enjoin the Department of Housing and Urban Development (HUD) from assisting the Chicago Housing Authority in constructing low-income housing units be27
cause of HUD's noncompliance with NEPA, The District Court denied the injunction
po
and the Seventh Circuit affirmed..
This case did not involve federal action con-
trary to lc-cal zoning, but involved people pollutien and the "fears of neighbors ef
29
prospective public housing tenants". 7 Tne case is significant because it applies
the "incremental impact" comment of the Maryland-National Capital case-^t
"the low density design of the housing coupled with the fa.ct
tha.t it will be built Gn vacant lets in compliance with local
zoning requirements suggests, for example, that the increased
burden on schcols, transportation, fire and other cor-munity
services will be at most incremental." yi
In a footnotej the court cites the Haryl and-Nati on a1 Capi tal case, and states(
"compliance with loca-1 zoning regulations and growth consistent with existing
growth patterns strongly suggests that a federal action is not environmentally significant."2^
So, the partial waiver of federal responsibility and sovereignty seems
judically accepted, except where the federal action involves certain "people rcl-
33
lution" which is excluded from the "quality sf the human environment",
587
Notes on Section II C
1.
Biderman v. Norton, 497 F.2d 1141 (2d Cir. 197*0} Tolman Laundry v. Washington,
6 E.R.C.. 1264 (D.C. Super. Ct. 1974).
2.
Nucleus of Chicago Homeowners Assoc. v. Lynn, 524 F.2d 225 (7th Cir. 1975), cert.
denied, __ U.S.
j Maryland-National Capital Park a.nd Planning Comra'n v. U.S.
Postal Serv., 3$9 F. Supp. 1212 (D.D.C. 1972), remanded, 437 F.2d 1029 (D.C.
Cir. 1973)} Town of Grotcn v. Laird, 353 F. Supp. 344 (D. Conn. 1972). See
Kanley v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert, denied. 412 U.S. 908
(1972). The outcome of the former three cases suggests three levels of applicability of local zoning-land use planning to NEPAi (l) no direct applicability,
(2) total applicability, a,nd (3) some applicabiltiy with some exceptions,
3.
See Annot., 61 A.L.R.2d 970 (1953)} Annot., 17 A.L.R. Fed. 33 (1973).
4.
6 E.R.C. 1264 (D.C. Super. Ct. 197*0*
5.
LI. at 1271. See also McLean Gardens Residents Assoc. v. National Capital Planning Comm'n, 390 F. Supp. I65 (D.D.C. 1974). In McLean-Gardens the plaintiffs
wanted both the National Ca.pital Planning Commission (NCPC) and the District of
Columbia Zoning Commission (Zoning Commission) enjoined from approval of a development in the District of Columbia until a.n EIS was filed.. The court considered NCPC a federal agency, but decided that the Zoning Commission was a local entity.
"It seems apparent that under the pertinent statutes and regulations control over zoning applications is, and will continue
te be, vested in the government ef the District of Columbia and
not in the Federal Government. That the federal membership of
the Zoning Commission constitutes only a minority is consistent
with an intent to keep the nature of its decision predominantly
local. The subject matter of zoning decisions is municipal in
nature and involves local policy considerations. The purpose of
federal participation in the District zoning process is not t®
superimpose federal policy on District zoning action, but to insure a voice for the federal interests in the National Capital
and... to protect the viability of the comprehensive plan for
the National Capital against inconsistent District Zoning action.
Thus... the Zoning Commission... acts as a municipal, not a federal,., agency; and when the Planning Commission ^NCPC_7 reviews
... applications for approval and reports its findings to the
Zoning Commission, it acts not as a policy-maker, but as an adviser. The Planning Commission may recommend approval or disapproval.. . , but only the Zoning Commission has the authority
ultimately te adopt or reject the proposal. ...Because NEPA
was not intended to reach zoning operations of the local government, it does not apply in this case. ... The proper avenue
fur implementation of NEPA is in the planning operations of
^~NCPC_7, and particularly in the formulation of the Comprehensive Plan, for it is at this sta.ge that federal rather than local, policymaking ccmes into play.... In the area of urban land
use, NEPA would be implemented in a fashion far more consonant
with these purposes through application at the planning level...,
rather than at the zoning level, where NEPA—type considerations
of environmental factors is at best piecemeal, and at worst sin
581.
28
intolerable burden on the performance by the Zoning Conmission
of its statutory duties.... ,/~~T_7he authors of NEPA could hardly
have intended the Zoning Commission and Planning Commission to
prepare individual environmental impact sta.tcments each and every
time they consider a major local zoning application." Id. at i75-6.
It is hard to imagine that there was ne federal partnership here even if the
District ef Columbia government is local. Must the Planning Commission and all
other federal agencies "consider" the D.C. zoning ordinance in all actions within the District of Columbia? NEPA is a decisionmaking tool to combat the piecemeal a.nd irrational decisions of "federal agencies" and it's irrelevant whether
we label the subject as "local" or "state" or "federal". Moreover, some state
NEPAs (e.g., Cal. Pub. Res. Code § 21080 (Supp. 1976)) include local governments in the detailed statement requirement and no reason is advanced why the
District of Columbia Government is so ill equiped to perform the sa_*ne evaluations.
Na.med Individual Members of San Antonio Conservation Society v. Texas Highway
Dep't, 446 F.2d 1013 (5th Cir. 1971), cert, denied, 406 U.S. 933 (1972).
See Citizens Ass'n of Georgetown v. Zoning Comm'n of the Dist. of Columbia, 477
F.2d 402 (D.C. Cir. 1973). Tne waterfront area of Georgetown had been zoned
commercial and industrial since 1920, when in 1969 the National Capital Planning
Commission (NCPC) prepared a comprehensive land use plan which called for the
waterfront area to be devoted to low-density residential and park-land uses. A
developer wanted to begin major commercial construction on the waterfront and
the D.C, Zoning Commission was asked by the Citizen's Association to interim
down-zone the area until NCPC completed a $270,000 study of the area. Tne Zoning Commission refused, and the Citizen's Association sued. Tne trial court
granted summary judgment to the Zoning Commission. By narrowing its review to
"consider only whether 'in denying the application _/the Commission_7 was arbitrary and capricious,
its decision had_7 n® substantial relationship
to the general welfare'," the court merely remanded the case to the Commission
for a full statement of reasons for its challenged decision. Id. at 407, 410,
In passing, the court commented "...that-lurking in the shadows of this case is
an issue not raised by the parties..., the question ef whether a recommendation
of the NCPC, a federal agency, to the local Zoning Commission must be accompanied by an environmental impact statement." Id. at 410. Tne court's answer was,
"where, as here, the potential! environmental effects of the Commission's decision
are substantial, it must at least consider the environmental issue to fulfill
its public interest mandate. The judgment s.s to environmental impact is a determination of policy committed to the discretion of the Commission alone; and
where the Commission has struck a balance between environmental and oth^r factors, we will not reverse its decision simply because we would have attached
different weights to the competing interests at stake." _Id, -Tne decision in
this c?se, as all the others involving the D.C, Zoning Commission, revolves around the court's conclusion that the Commission is a "local" entity. However,
whatever strength for this conclusion could be mustered from the D.C. Code must
be emasculated by the fact that "...the Zoning Commission is msde up entirely
of Presidential appointees, responsible to the executive branch of the federal
government and not to the people of the District of Columbia...." _Id. at 409 n.
28. If, under these circumstances, the actions of the D.C. Zoning Commission
is not "federal action", then the concept of federal-local partnership was a
cruel joke on the States. See Na.med Individual Member of San Antonio Conservation Society v. Texas Highway Dep't, 446 F.2d 1013 (5th Cir. 1971), cert.
denied, 406 U.S. 933 (1972). Also note that NCPC felt that NEPA had some application to the District ef Columbia Government. 477 F.2d at 410. Is this
the federal leadership ostensibly commanded by the President? See Exec. Order
No. 11514, 35 Fsd. Reg. 4247 (1970).
29
581.
8.
497 F.2d 1141 (2d Cir. 1974).
9.
Id. at 1147-8. Note the requirement that DOI consider local zoning as an initiative for condemnation action by DOI was incorporated in the Seashore Act,
and was not discussed as an element of NEPA,
10. 353 F. Supp. 344 (D. Conn. 1972).
11. Id. at 348. But the assessment stated, "the site proposed for condemnation is
zoned residential.", Id. at 351 > which is true generally, but the proposed construction did not conform to the type of residential zoning in the area,
12. Id. at 352.
13. Id. at
"The construction of new dwellings to house additions to the
towns population is contemplated by everyone. The Baily Hill area is zoned for
housing. The only difference between the Mavy project and what the Town Zoning
Commission has provided for the area's future is the number of units that the
Navy will build on the tract....
J/he Navy project involves essentially the
same use of Baily Hill as that envisaged by the Town." Id. The objective is to
have an independent federal evaluation of the primary and secondary, direct and
indirect, environmental and socio-economic impacts. Local land use plans and
zoning ordinances, if available, may be a valuable source of information, but
should not be, in any sense of the word, controlling.
14. Id. at 350, There are two ways to analyze this statement: (l) the court is
making an absolute separation of NEPA and local zoning, a.nd exclusionary zoning
is only an example; or (2) the court is making only one separation - NEPA and
exclusionary zoning. Even though an absolute separation would be dicta here,
it seems that an absolute separation is exactly what the court means, and what,
I believe, is the better approach.
15. Id. at 351• Exclusionary zoning is today one of the most controversial and
widely debated issues in the field of land use planning.
16. 437 F.2d 1-029 (D.C. Cir. 1973). See tote, Maryland-National Capital Park and
Planning Commission v. United States Postal Service; Deference to Local Land
Uses and Zoning Laws by Federal Agencies, 10 Willamette L.J. 4?7 (l974TZ herein ~
after cited as Deference by Federal Agencies /; M. ~3aram, Environmental Law and
the Siting of Facilities (1976). Tnis case may, or may not, be the reason far
inclusion of the consideration of land use plans requirement in the CEQ Final
Guidelines of August 1, 1973. The case was decided in the U.S. District Court
on October 13, 1972, (which is prior to the issuance by CE2 of the proposed
Guidelines on May 2, 1973) in favor of the Postal Service. The case was argued in the Circuit Court on Hay 31, 1973, and decided on Augsut 23, 1973.
This time period would pl&Ge the decision 22 days after the issuance of the
Final Guidelines. Moreover, no comrcent was made as to the effect ef this esse
on the Final Guidelines in the Fourth Annual Report at 234-6, and the Fifth
Annual Report stated:
"CEQ, in § 1500.8(a)(2) of its guidelines has pointed out the
need for agencies to carefully inquire into the relationship between their proposed project and land use plans for the affected
area. This decision /"Maryland-National Capital Park and Planning Commission v. Postal Service, 487 F.2d 1029 (D.C. Cir. 1973)_7
highlights the need to do so, not only in the writing of an impact statement but also in making the threshold decision of
30
581.
whether a project will significantly affect the quality of the
environment." Id. at 396.
CEQ seems to "be talcing sole credit (?) for their interpretation of NEIPA,.
17. 3^9 F. Supp. 1212 (D.D.C. 1972).
18. 487 F.2d at 1035.
19. Id. at IO36-7. If this presumption were to be used against a plaintiff, he would
be forced to challenge the rationality of the underlying zoning regulation. This
seems both an unfair burden on the plaintiff and an unjustified extension of
NEPA into local zoning which, conceivs.bly, must nGw plan for federal activities
also. However, the courts have been very reluctant to extent NEPA to "local"
zoning activities.
20. See generally Roberts ch. 18} Dukeminier & Stapleton, The Zoning Board of Adjustment! A Case Study in Misrule, 50 Ky. L.J. 273 (1962); Note, Zoning; Variances and Exceptions! The Philadelphia Experience, 103 U. Pa. L. Rev. 516
(1955)» The unqualified claim of asurance seems completely unjustified and, in
fact, any general claim of assurance from local zoning would be extremely difficult to validate. Assuming that some relationship exists between local zoning and environmental effects from special land uses,-the assurance of the
existence of such a relationship and the degree of correlation between the two
factors would seem to vary depending on the nature and character of the land
use-zoning body, the perspective of the land.use-zoning body, and its authority.
For example, greater assurance would seem to flow from a state body because it
usually has highly qualified, full-time, professional personnel in a separate
department who analyze and evaluate the problem free of the local petty biases
and who have the power, prestige, and resources ef the state itself behind it.
See Note 5 s-t 3 supra.
21. See Hanley v. Kleindienst, 471 P.2d 823, 83O (2d Cir. 1972),cert, denied, 412
U.S. 908 (1972)| First Nat'l Bk. of Chicago v. Richardson, 484 F.2d I369 (7th
cir. 1973); Ely v. Velde, 4^1 F.2d II30 (4th Cir. 1971). In Hanley the court
saidi
"...In deciding whether a major federal action will 'signifiicantly' affect the quality of the human environment the agency
in charge... should... review the proposed action in the light
of a.t least two relevant factors! (l) the extent to which the
action will cause adverse environmental effects in excess of those
created by existing uses in the area, affected by it, and (2) the
absolute ouantita.tive adverse environmental effects of the action itself, including the cumulative harm that results from its
contribution to existing adverse conditions or uses in the affected area. Where conduct conforms to existing uses, its adverse consequences will usually be less significant than when it
represents a radical change. Absent some showing that an entire neighborhood is in the process of redevelopment, its existing environment, though frequently below an ideal standard, represents a norm that cannot be ignored.
.. , £ l j t must be recognized that even a slight increase in
adverse conditions that form an existing environmental milieu
may sometimes threaten harm that is significant. One more factory polluting the air and water in an area zoned for industrial
uses may represent the straw that breaks the back of the environmental camel. Kence the absolute, a.s well a.s comparative, effects of a major federal action must be considered." 471 F.2d at 83C-I.
31
Note that the court is talking about existing uses and not the "fairy-tale" land
of future uses. Existing uses must be the focus because zoning classifications
are as ephemeral as political power. Re-zoning, variances, and special exceptions are usually freely given except when the proposed use may intrude into exclusive single-family residential areas.
"An office building or, indeed, a jail, may have an adverse
impact in an area where such use does not exist and is not permitted by zoning laws...;whereas the contrary would hold in a location where such uses do exist and are authorized by such laws...."
Id. at 831.
22. 487 F.2d at IO37-8. See Deference by Federal Agencies at 481.(The MarylandNational Capital case established the "rule expressly requiring deference te
local zoning laws in determining if proposed activity will have significant effect on the human environment."!.. See also Morgan v. United Sta/tes Postal Serv.,
405 F. Supp. 413 (W.D. Mo. 1975/ (enjoined a proposed expansion of parking facilities at local past office until an EIS was prepared because, among other issues. the proposed construction was not in accordance with a local comprehensive
plan); McDowell v. Schlesinger, 404 F. Supp. 221 (W.D. Mo. 1975) (enjoined transfer of U.S. Air Force unit from Missouri Air Force Ease to Illinois Base until
an EIS was prepared because, among other problems, of failure to consider socioeconomic, transportation, and land-use impa.cts.); Tierrasanta Community Coun. v.
Richardson, 6 E.R.C. IO65 (S.D. Cal. 1973) (enjoined proposed construction of
youth facility for the Bureau of Prisons near existing residential area and a
proposed elementary school site until an EIS wa.s prepared because, among other
things, the proposed facility was to be built in an area that was depicted in
the City's General Plan as low-density housing and open space.); Goose Hollow
Foothills League v. Romney, 334 F. Supp. 877 (D. Ore. 1971) (enjoined construction of high-rise apartment building partially financed by the U.S. Department
of Housing and Urban Development until an EIS was prepared because of failure to
adequately consider that the area presently has no high rise buildings, and the
new building will change the character of the neighborhood, concentrate population in the area^ and serve to draw greater population in the future, increase
automobile traffic, and effect the existing view from neighboring properties.)
23. 487 F.2d at IO37.
24. See Id. at 1040.
25. Id. at 1037.
26.524 F.2d 225 (7th Cir. 1975), cert, denied, __ U.S. _ .
to Exclude the Poor, 4 Env. Affairs 81 (1975).
See Daffron, Using NEPA
27. Nucleus of Chicago Homeowners Assoc. v. Lynn, 372 F. Supp. 147 (N.D. 111. 1974).
28. 524 F.2d at 232.
29. Id, a.t 23I. Compare the special treatment of the "people" in this case - low income public housing tenants - with the treatment given the convicts in Hanley,
First Nat'l Bk. of Chicago, and Tierrasanta Copimunitv Coun. ca.ses. Public housirig tenants are "good people" and cannot be considered as "pollution", but convicts are "bad people" and may, in themselves collectively, be "pollution" of a
"decent" neighborhood. The key term in NEPA is "impact" and not "pollution"
which has already built into it a qualitative negative stigma. The courts seem
32
581.
to "be making an implied distinction based on public policy.
30. 387 F.2d at IO36.
See text preceding note 27 supra at 27.
31. 524 F.2d at 231.
32. Id. at n. 4.
33. See also Milo Community Hosp. v. Weinberger, 525 F.2d 144 (1st Cir. 1975) where
the court saidj
"Therefore... whether or not the prospective social and economic
impact could be said to fall within the statutory term, 'quality of
the human environment',...we hold that the decertification of a
small hospital as a 'provider' or /"sicJ services under the Medicare Act for continued noncompliance with significant fire protection provisions of the Life Safety Code is a decision which
should be governed solely by that Act."
Id. at 148.
Some justification for the "people pollution" exception is found in Daffron,
Using NEPA to Exclude the Poor, 4 Bnv. Affairs 81 (1975).
574.
33
III.
Conclusion.
The issue is whether NEPA is, or should be, concerned with the way local Governments zone an area in which a federal agency intends to conduct a "major federal action". Consistency would dictate an unconditional "yes" or "no" answer,
however, the law infrequently speaks in such absolute terms.
The constitutional issue is the scope of the federal government's immunity from
state and local regulation and its transferral to fedsr?! contractors and other instrumentalities.
Some corollary issues arej
what is required to constitute a
waiver of federal immunity and how will the court measure the extent of a. legislative w?.ivsr? Based on the "hard look" that the United States Supreme Court has
given both NEPA and implied waiver of federal immunity, it seems that only an explicit legislative waiver in NEPA and a strong policy argument justifying such a
waiver would be sufficient to uphold any federal immunity waiver.
There is no express language in NEPA which would indicate any direct relationship between it and local zoning activities,
the 1975 Amendment to NEPA suggests a
relationship but falls short of an out-sn-out direct link-up. fteny of NEPA's prcvisons can be interpreted to find a. relationship between them and local zoning,
"owdver, will, and should, the courts be so anxious to bind the federal a-gencies to
local zoning decisions on so tenuous a basis?
The federal agencies are, in many instances, good gauges of the intent of federal ststutesj and NEPA is no exception.
CE^, the NEPA watchdog, claims that JtEPA
requires consideration of state and local land use plans and policies, and the
other federal agencies have luimicked it. However, CEQ's pronouncement was sudden, unexpected, and unexplained, which, therefore, restricts the amount of confidence that one could place on it.
The case law appears to be moving to a recognition of VEPA as a partial land use
planning act but excluding consideration of some "people pollution".
The courts seem
tc have made a dangerous presumption that there will be no significant effect cn
the "human environment" as long as the federal agency complies with the local zoning
scheme.
This presumption is dangerous because it absolves federal agencies free, re-
sponsibility for environmental effects "based on a local zoning ordinance whose
scope, rationality, and even-hande&ness is, in many localities, questionable.
This
presumption seems even more out-of-place because courts view the fuhction and a.ction of zoning as being local in nature and beyond rcach of NEPA.
In the Town ©f Groton v. Laird, 353 F. Supp. 344 (D. Conn. 1972), the court
stated that "NEPA is not a sort of Keta-zoning law."
Id. at 35O. On the other
hand, the court in Maryland-National Capital Park and Planning Commission v. U.S.
Postal Serv., 487 F.2d 1029 (3.C. Cir. 1973), stated it will "closely scrutinise...
r-nd engage in a 'hard look* at the decision not to file an impact statement, due to
deviations from local zoning procedures while restricting /~"their_7 considera.tion to
legitimate environmental effects /"excluding people pGllution_7...."
Id. at 1037-8.
The choice of answer^s te the primary question lies in one of these two directions.
All of the factors lead me to believe that both the language of NEPA and policy behind it fsvor the rationale and applic=tion given in the Town of Grotcn c'-se.