BAZELON, Chief Judge:
In November, 1972, plaintiffs filed suit in the District Court challenging the legality of certain actions of the defendants—the District of Columbia Redevelopment Land Agency (RLA), the National Capital Planning Commission (NCPC), and the U. S. Department of Housing and Urban Development (HUD)—in formulating and executing plans for the urban renewal of the 14th Street area of the District.
In a series of orders the District Court denied the requested preliminary injunctive relief in all respects save one, granting an injunction only as to further actions under the second and third-year Neighborhood Development Programs. This injunction, however, the Court stayed, and ultimately dissolved after defendant HUD had filed with the Court a final environmental impact statement concerning the programs. In response to this series of orders plaintiffs filed these appeals.
We reverse the District Court's orders only insofar as they rested on a determination
An understanding of the issues before us requires a somewhat extensive account of the facts underlying this litigation and the complex course the litigation has thus far taken. In setting out upon the redevelopment of the 14th Street area, the District of Columbia chose to proceed under the Neighborhood Development Programs provisions of the federal Housing Act,
Renewal activities in the 14th Street area began in 1969 with the adoption of a general land use plan. By November, 1972, when this suit was instituted, NDPs 1, 2 and 3 had been fully approved in the manner described above; the fourth action year program, NDP 4, had been formulated by RLA, approved by NCPC, and forwarded to the City Council for its consideration. At the same time, pursuant to the action year programs already approved, RLA began to execute "Package I," preparing a prospectus to solicit bids and issuing notices to quit to residents of the site. It was apparently these actions of RLA that stimulated plaintiffs to bring this suit, plaintiffs objecting, in the main, to the ratio of low to moderate-income housing planned for Package I and in NDPs 2, 3 and 4 generally, and fearing that low-income residents of the area would be displaced despite the shortage of low-income housing elsewhere in the District.
On January 31, 1973, the District Court denied in all respects plaintiffs' motion for preliminary injunctive relief. Thereafter, perhaps in part in response to this suit, NCPC issued on February 16 an environmental impact statement concerning NDP 4, thus making it available shortly before City Council hearings were held on the plan. On March 7, the District Court vacated its order of January 31 and, in its stead, issued the first of the several orders before us on
Plaintiffs appealed from this order and, on May 7, filed emergency motions asking this Court (1) to vacate the stay of the preliminary injunction with respect to NDPs 2 and 3; (2) to reverse summarily the District Court's denial of a preliminary injunction with respect to NDP 4, the Uniform Relocation Assistance Act and the Housing Code; or, in the alternative, (3) to enter an injunction as to these matters pending disposition of the appeal. We denied these motions on June 8, the parties at that time agreeing to submit the case to the panel on the merits.
In the meantime, the following events had transpired: the District City Council approved NDP 4 on March 29, and the plan was submitted to HUD for funding; HUD issued a final environmental impact statement concerning the plan on May 25 and, in June, approved its funding. The plaintiffs thereupon applied once more to the District Court for a preliminary injunction, contending that, because the approval process had been completed, harm was now imminent. By order dated June 28, the Court again refused an injunction, on the ground that, since an appeal from its March 8 order was pending in this Court, it lacked jurisdiction over the NDP 4 question. On July 2, the District Court granted defendants' motion to dissolve the preliminary injunction with respect to NDPs 2 and 3, primarily because shortly before, HUD had issued and filed with the Court a final environmental impact statement concerning the plans. Plaintiffs filed appeals from both of these orders, and we consolidated these appeals with the earlier appeal for argument and decision.
Because these cases are before us on appeals from the denial and dissolution of preliminary injunctions,
In declining to enjoin RLA from "allowing or effecting the displacement of any resident of the 14th Street
Section 210 of the Act
Here, plaintiffs contend that, in fact, RLA has not provided the assurances required by Section 210 and by HUD regulations,
Defendant agencies argue on this appeal, as they did below, that contrary to plaintiffs' representations, RLA is now in full compliance with Section 210. This is, of course, a matter for the District Court to resolve. In reversing the Court's order on this point, we hold only that if, on remand, the Court finds that plaintiffs' representations are correct, there is no statutory bar to a preliminary injunction against defendant RLA, if the Court thinks such an injunction necessary to achieve the purposes of the Act.
In its March 7 order, the District Court also refused to enjoin RLA "from maintaining any of its residential properties in the 14th Street NDP area otherwise than in compliance with the D.C. Housing Code."
In any event, plaintiffs appear on this appeal to have abandoned their original position. They now contend that although RLA may not be bound to abide the detailed regulations of the Code, it is required to maintain its residential property in a decent, safe and sanitary condition.
A. We turn, then, to the NEPA issues presented in these appeals and, more particularly, to the questions whether the District Court erred in (1) denying a preliminary injunction, on NEPA grounds, as to NDP 4, and (2) in staying and ultimately dissolving the preliminary injunction it granted as to NDPs 2 and 3. As we noted above, the grant or denial of preliminary relief is a matter that calls for the exercise of judicial discretion. At the same time, however, "[n]ot only the avowed forecast as to probability of success on the merits, but also the analysis of injury to either or both parties, the public interest, and the balancing of interests may . . . depend on an assumption of
The now familiar provisions of Section 102(2) (C) of NEPA require that "to the fullest extent possible" all federal agencies must include a detailed environmental impact statement "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment . . .;" this environmental impact statement is to "accompany the proposal through the existing agency review processes . . . ."
The federal defendants argue that they must be allowed discretion in determining the points in the NDP approval process at which NEPA statements can most effectively and profitably be prepared. They say they have reasonably concluded that the requirements of NEPA can best be fulfilled by having NCPC prepare a draft statement concerning each action year program; this draft would be submitted, together with the program proposal, to the City Council and, if the Council approves, to HUD; and HUD would then prepare and issue a final environmental impact statement. We think this application of NEPA to the NDP approval process reasonable as far as it goes. But we find it deficient in one important respect: it makes no provision for RLA to prepare a draft impact statement for submission to NCPC.
Although we have said that it is, in the first instance, the responsibility of the agencies to mesh NEPA's requirements with their decision-making processes,
The federal defendants argue, however, that to require RLA to submit
B. We hold, therefore, that to meet the requirements of NEPA, both RLA and NCPC must include impact statements in their proposed action year programs, and that HUD must prepare and issue final statements when the programs are finally approved. This was not, of course, the procedure that the defendant agencies followed here. As of March 7, when the District Court issued its original order, NCPC had, as we have noted above, issued a draft statement concerning NDP 4; no statement had previously been issued by RLA. In denying an injunction as to NDP 4, the District Court said that "`federal action . . . significantly affecting the quality of the human environment' has not yet taken place nor is it imminent."
But this is not, apparently, what the District Court had in mind. Instead the Court seems to have been referring to the absence of imminent, irreparable harm flowing from the defendants' failure to comply with NEPA. NDP 4 was, according to the Court, only in the preparatory stage; no final decision concerning it had been reached. The Court continued: "Preparatory activities alone do not have the effect of triggering rights to preliminary injunctive relief for governmental failure to comply with NEPA. Only affirmative action that is likely to have direct tangible consequences of an environmental character . . . will do this; i. e., the commitment of resources or the entry into an enforceable obligation to commit resources in such a way as to ensure environmental consequences."
We do not mean to say, however, that, because RLA had failed to file an impact statement with its NDP 4 proposal, the District Court was compelled to issue a preliminary injunction requiring it to do so. As we explain more fully below, the District Court may conclude that a declaration of the agencies' NEPA obligations is sufficient to ensure compliance, especially if the agencies promise remedial action before actual, physical steps are contemplated. Moreover, when the deficiency concerns matters of timing, the required remedial actions need not necessarily be the equivalent of strict compliance. Adjustments in light of the circumstances may be made to the extent that the public interest demands. We hold only that, under NEPA, the imminence of physical steps is not an indispensable condition to preliminary injunctive relief.
Our second area of doubt concerning the District Court's March 7 order centers on the Court's treatment of plaintiffs' motion for preliminary relief as to NDPs 2 and 3. Because these programs had been fully approved and action pursuant to them was about to be undertaken, the Court said that "the prospect of imminent action promising significant environmental consequences" required "preliminary injunctive relief barring the RLA from completing this implementation until corrective action is taken."
This is not to say, of course, that the District Court erred in taking into account the public interest militating against even a temporary halt in the program. We think, however, that rather than stay the effect of its injunction as to the program in its entirety, the Court should have followed the approach taken by the First Circuit in Jones v. Lynn, a case closely similar to this. In short, we think that the court should have engaged in a more particularized analysis, staying the injunction only as to those elements of the project delay of which would demonstrably result in injustice or substantial public harm.
C. Despite our doubts about the premises of the District Court's March 7 order, we do not find a remand appropriate. Final environmental impact statements have been filed, in May as to NDP 4, and in June as to NDPs 2 and 3. On June 28, the District Court again refused to enjoin actions under NDP 4. Although it did so on jurisdictional grounds, the Court went on to say that the actions of NCPC and HUD, in issuing, respectively, draft and final statements on the plan, had achieved the substance of compliance with NEPA. On July 2, the Court dissolved the preliminary injunction as to NDPs 2 and 3, finding that the "corrective measures [defendants] have taken . . . have led to a belated but obviously thorough examination of environmental factors and have gone far to correct any damage which may have arisen from [the earlier] violation, i. e., the unwitting creation of an adverse environmental impact."
The Court's June 28 and July 2 orders were in no way based on a misconception that the defendants' remedial actions were the equivalent of strict compliance with NEPA's requirements. On the contrary, the Court acknowledged that, as we have held above, "[p]referred practice would be for a draft impact statement to accompany each NDP from its inception." Thus, as this litigation has evolved, the primary question now confronting us is whether the District Court abused its discretion in deciding that something less than strict compliance with NEPA was sufficient to avoid a preliminary injunction against further actions under the NDPs.
In most cases, perhaps, it is possible and reasonable for the courts to insist on strict compliance with NEPA, and actions can, consistently with the public interest, be enjoined until such compliance is forthcoming.
Of course, these factors in no way excuse the defendants' failure, in the first instance, to comply with NEPA. But they may, we think, properly be taken into account by a court of equity in deciding whether and what sort of relief is appropriate. Here, the Court concluded that, in order to preserve the efficacy of the programs, it was necessary to allow the defendant agencies to telescope their compliance with NEPA. In doing so., however, the Court was convinced that the defendants' remedial actions achieved the substance of NEPA's requirements and purposes. Moreover, plaintiffs do not contend, at this point at least, that the impact statements as finally issued are deficient in comprehensiveness. Their objection goes solely to the statements' timing. We deem it important to recognize that, once decisions have been made, it may, as a practical matter, be impossible to duplicate the kind of staged infusion of environmental information and consideration that NEPA contemplates.
The District Court found, in short, that requiring the defendant agencies to repeat the complex NDP approval process in a manner that comports fully with NEPA would not, in all probability, better serve NEPA's purposes than the remedial actions already taken, and that any such requirement would be distinctly contrary to the public interest. It is enough to say that, in the particular circumstances of this case, we find no abuse of discretion in this decision.
Accordingly, we affirm the District Court's orders except with respect to the denial of relief under the Uniform Relocation Assistance Act. On that point we reverse and remand to the District Court for further consideration.