CLARK, Circuit Judge:
What is the proper standard for judicial review of an agency's threshold determination not to file an environmental impact statement under the National Environmental Policy Act of 1969 (NEPA)?
This is an action to enjoin the construction of a federal office building on a downtown site in Mobile, Alabama, brought by an organization known as Save Our Ten Acres (alphabetically shorthanded: "SOTA"). SOTA is a voluntary unincorporated association comprised of approximately 572 employees of the Corps of Engineers, formed to resist the selection of the urban site. The Corps of Engineers is to occupy the greater part of the new building on completion. The site selection decision was made by the General Services Administration (GSA). The basis of SOTA's attack on that decision in the court below and in the instant appeal is limited to an alleged failure of the GSA to comply with the NEPA requirement that all federal agencies file a detailed statement of the environmental impact of all major federal actions which may significantly affect the quality of the human environment.
The question presented in this case has not yet been addressed by this circuit, though the question has arisen in a number of reported cases.
We find solid support for this position in the recent Supreme Court decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). There the Court narrowly construed the discretion of the Secretary of Transportation to approve highway routes under a "no prudent and feasible alternative" standard. Conceding the statutory language at issue in Overton Park differs from that of the NEPA, nevertheless, both statutes (at a minimum) require the acting agency or the administrator to consider particular environmental factors before making certain determinations. While the Court made it clear that the ultimate merit decision based upon a weighing of these environmental considerations should be reviewed under the arbitrary, capricious, or abuse of discretion standard, a thorough study of Overton Park teaches that a more penetrating inquiry is appropriate for court-testing the entry-way determination of whether all relevant factors should ever be considered by the agency.
Under the review standard we hold is required, the court must determine whether the plaintiff has alleged facts which, if true, show that the recommended project would materially degrade any aspect of environmental quality. In this case SOTA charges, inter alia, that the construction of the building will create severe urban parking and traffic congestion problems, will aggravate an already substantial air pollution problem, and is to be improperly located on the floodplain of the Mobile River. Though we express no opinion on the merits of SOTA's claim, we note that SOTA's allegations on their face may well satisfy the criteria of GSA's own statement of policy for implementation of the NEPA.
Not only do we iterate that this decision has not the slightest intent of indicating what ruling should eventuate from the retest we require, but we also would emphasize that it is not the province of the courts to review any actual decision on the merits (if one be required) as to the desirability vel non of the project. We merely hold that it is the courts' function to insure that the mandate of the statute has been carried out and that all relevant environmental effects of the project be given appropriate consideration by the responsible official whenever it is unreasonable to conclude that the project is without the purview of the Act.
SOTA also argues that the consolidation of the hearing on the preliminary injunction and on the permanent injunction pursuant to Rule 65(a) (2), Fed.R. Civ.P., deprived it of the opportunity to fully develop its case. See Nationwide Amusements, Inc. v. Nattin, 452 F.2d 651 (5th Cir. 1971). An examination of the record reveals no element of surprise or prejudice in this procedure in the case at bar. The contention is not meritorious. Of course, this point will become moot if the court below determines to conduct the entire hearing anew.
Nor do we find any error in the transfer of the suit from the District of Columbia to the Southern District of Alabama. The decision to require a change of venue in the interest of justice is largely committed to the sound
The judgment of the court below is
Affirmed, in part, vacated, in part, and remanded with directions.
At least two district courts have gone so far as to say that the agency has no discretion to exercise relative to whether the impact statement is required, but that a court will determine as a matter of law whether the project is a major program significantly affecting the environment. Scherr v. Volpe, 336 F.Supp. 886, 888 (W.D.Wisc.1971), aff'd on alternate holding, 466 F.2d 1027, 1034 (7th Cir. 1972); National Resources Defense Council, Inc. v. Grant, 341 F.Supp. 356, 366 (E.D. N.C. 1972). Another district court has held that the impact statement is required if the action would arguably have an adverse environmental impact, at least where the agency has not provided a detailed explanation of its decision. Students Challenging Regulatory Agency Procedures v. United States, 346 F.Supp. 189, 201 & n. 17 (D.D.C.1972). But see Goose Hollow Foothills League v. Romney, 334 F.Supp. 877, 879 (D.Ore. 1971) which appears to have applied the standard of arbitrariness. See also Citizens For Reid State Park v. Laird, 336 F.Supp. 783, 788-789 (D.Me.1972).
PBS 1095.1A, Attachment B.
See also Hanly v. Mitchell, supra n. 4, 460 F.2d at 647.
PBS 1095.1A, Attachment B.