# Petition — SECRETARY OF HOUSING & & URBAN DEVELOPMENT DEVELOPMENT v. KARLEN (Nos. 79-184, 79-168, 79-181) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0675%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 ## Text AUG $ 1979 4 In the Supreme Court of the Hrrited LPS 02K 1. CLERK OCTOBER TERM, 1978 PATRICIA R. HARRIS, SECRETARY OF HOUSING AND URBAN DEVELOPMENT, PETITIONER Vv. ROLAND N. KARLEN, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT WADE H. MCCREE, JR. Solicitor General STUART E. SCHIFFER Acting Assistant Attorney General WILLIAM ALSUP Assistant to the Solicitor General BARBARA L. HERWIG MICHAEL JAY SINGER Attorneys Department of Justice Washington, D.C. 20530 EDWARD W. NORTON Acting General Counsel ARTHUR J. GANG TIMOTHY HARTZER Attorneys Department of Housing and Urban Development Washington, D.C. 20410 INDEX Page Te aks a 55: 4's aes newses 1 ee wa Ts 'e bese ceed sac 1 en. bas niee a esencese 2 Statutory provision involved .................. 2 ete Bay sles hoes o's scenes 2 Reasons for granting the petition.............. 11 Tee Wy cbs sae sescecsees 19 eas Webi sos ce ences la ee eres cede avesseceseey 12a ee as ck ees ceseseseece 49a OU dpi w nde ccsescuse 63a EE ays y's'se 6's ss becesesses 142a hE 144a CITATIONS Cases: Aberdeen & Rockfish R. Co. v. SCRAP, 422 I 12 Alaska v. Andrus, 580 F.2d 465 .......... 14, 16 Andrus v. Sierra Club, No. 78-625 (June 11, TN Soe vesesesuses 15 Blackwood v. Harris, Civil No. 79-1297 (.0.C., tiled May 11, 1979) ............ 18 Braucher v. Harris, Civil No. CA-H-79-122 (S.D. Tex., filed Jan. 19, 1979) .......... 18 City of Des Plaines v. Metropolitan Sani- tary District, 552 F.2d 736 ............. 15, 16 City of Plano, Texas v. Harris, Civil No. M-78-69-CA (E.D. Tex., filed July 7, EE 18 Conservation Council of North Carolina v. eee 16 Culpeper League for Environmental Pro- tection v. United States Nuclear Regula- tory Comm’n, 574 F.2d 633 ............. 15 i li Cases (continued): Page Dalzell v. Harris, Civil No.1-78-28 (N.D. OK., TOG FUe GB, THF) nc cs cevcnceses 18 Environmental Defense Fund, Inc. v. Proehlite, 473 Fd DOG 2. ccs ccceseses 16 Fayetteville Area Chamber of Commerce v. VO Oe Fe PONE 8 0h screws eect eons 14, 16 Jicarilla Apache Tribe of Indians v. Mor- ae ff 5 or errr er 16 King v. Harris, 464 F. Supp. 827, appeal pending, No. 79-7144 (2d Cir.) .......... 17, 18 Kleppe v. Sierra Club, 427 U.S. 390....... 12, 15 Matsomoto v. Brinegar, 568 F.2d 1289..... 15, 16 Nucleus of Chicago Homeowners Ass’n Vv. EA Se © os Vane ceacashsscas es 16 Otero v. New York City Housing Authority, ee BOE sini hans kan ew esses 5 Reed v. Harris, Civil No. 3-78-1294F (N.D. Tex., Sled Sept. ZZ, WTB) 2... cece ccsese 18 Save Our Invaluable Land, Inc. v. Needham, 542 F.2d 539, cert. denied, 430 ee ON uw iru baud a0 a ee ck eae 15, 16 Short Haul Survival Committee v. United ORENG, ee ee Oe GS 5 voc Wsaewesaue 16 Trout Unlimited v. Morton, 509 F.2d ee a ay ee aly 16 Vermont Yankee Nuclear Power Corp. v. Pe: , ME A Ns 6k ok eS etwied dv sees 12, 15 Statutes and regulation: Act of August 9, 1975, Pub. L. No. 94-83, 89 eR se nes crag aaa eee 7 National Environmental Policy Act, 42 U.S.C. 48al et seq.: Section 101(b), 42 U.S.C. 4331(b)...... 7 Section 101(b)(1), 42 U.S.C. EN Siig oss ve we vs nee nu ce ws 13 iil Statutes and regulation (continued): Page Section 102(2)(D), 42 U.S.C. EN A a 7 Section 102(2)(E), 42 U.S.C. bop og AE OE OED 2, 6, 7, 12 United States Housing Act of 1937, 42 U.S.C. 1487 et seq.: ok er pane ees ae 3, 13 42 U.S.C. 1437-1437} ................ 2 Oe he EO oc vee hoki celddnks, 13 eS | | a 3 a Oe ee 3 42 U.S.C. 1437b-1487f ....:.......... 3 ee Se. 3 ee | 17, 18 42 U.S.C. 1487f(D(1) . 0. eee. 17 URC, TOEMA) «on k evs ccccccene'se 13 Oe Oe BO os dices knees bedidewncs 17, 18 A Sg: ee ar 17 SA ED ov vk vo sveceaecn, 17 Miscellaneous: 43 Fed. Reg. (1978): EE ied Fay ev Sky sot nee le, 15 aE 8 Sh dean u dc eee eteo ues 15 In the Supreme Court of the United States OCTOBER TERM, 1978 No. PATRICIA R. HARRIS, SECRETARY OF HOUSING AND URBAN DEVELOPMENT, PETITIONER v. ROLAND N. KARLEN, ET AL. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT The Solicitor General, on behalf of Patricia R. Harris, the Secretary of Housing and Urban Development, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit in this case. OPINIONS BELOW The decision of the court of appeals (App. A, infra, la-lla) is reported at 590 F.2¢ 39. The decision of the district court (App. B, infra, 12a-48a) is reported at 445 F. Supp. 204. The earlier opinion of the court of appeals (App. C, infra, 49a-62a) is reported at 523 F.2d 88. The earlier opinion of the district court (App. D, infra, 63a-141a) is reported at 387 F. Supp. 1044. JURISDICTION The judgment of the court of appeals (App. E, infra, 142a-143a) was entered on December 14, 1978, and a 2 petition for rehearing was denied on March 15, 1979 (App. F, infra, 144a-145a). On June 5, 1979, Mr. Jus- tice Marshall extended the time for filing a petition for a writ of certiorari to and including July 13, 1979, and on July 5, 1979, Mr. Justice Marshall further extended the time for filing a petition to and including August 3, 1979. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED When a federal agency has given detailed considera- tion to environmental values in its decisionmaking proc- ess, in full compliance with the procedural requirements of the National Environmental Policy Act, does NEPA authorize a court to reweigh the relevant considerations and to require the agency to choose an alternative that the court regards as environmentally preferable but that the agency has rejected for policy reasons. STATUTORY PROVISION INVOLVED Section 102(2)(E) of the National Environmental Policy Act, 42 U.S.C. 4332(2)(E), provides: The Congress authorizes and directs that, to the fullest extent possible: * * * (2) all agencies of the Federal Government shall— (E) study, develop, and describe appropriate al- ternatives to recommended courses of action in any proposal which involves unresolved conflicts con- cerning alternative uses of available resources * K STATEMENT 1. The United States Housing Act of 1937, 42 U.S.C. 1437-1437}, establishes a national policy of assisting 3 local governments “to remedy * * * the acute shortage of decent, safe, and sanitary dwellings for families of low income * * *” (42 U.S.C. 1437). To achieve this goal the Secretary of dousing and Urban Development is empowered to provide various types of financial assist- ance to low-income housing projects (42 U.S.C. 1437b- 1437f). One of these programs, Section 1437¢(a), au- thorizes the Secretary to “make annual contributions to public housing agencies” not to exceed “the annual amount of principal and interest payable on obligations issued by the public housing agency to finance the de- velopment or acquisition cost of the low-income project * * *” By contributing to the debt service and thereby reducing the rent required to be paid by occupants, these annual contributions “assist in achieving and maintaining the low-income character” of such projects (42 U.S.C. 1437¢(a)).! 2. In 1958, after a two-year study, the New York City Planning Commission decided to devise and im- plement a comprehensive plan for a 20-block area in Manhattan known as the West Side Urban Renewal Area (WSURA).? After holding a number of public hearings, the Commission in 1962 adopted a plan which ‘Low-income families” are those “who cannot afford to pay enough to cause private enterprise in their locality or metropoli- tan area to build an adequate supply of decent, safe, and sanit- ary dwellings for their use” (42 U.S.C. 1437a(2)). “Low-income housing” means “decent, safe, and sanitary dwellings within the financial reach of families of low income” (42 U.S.C. 1437a(1)). The rental for federally assisted units for such families may not exceed one-fourth of the family’s “income” as defined by the Secretary (42 U.S.C. 1437a(1)). At least 20% of the dwelling units in any project under an annual contributions contract must be occupied by “very low-income families” (ibid.). These are “families whose incomes do not exceed 50 per centum of the me- dian family income for the area, as determined by the Secretary with adjustments for smaller and larger families” (42 U.S.C. 1437a(2)). 2This area extends from West 87th Street to West 97th Street and from Central Park West to Amsterdam Avenue (App. B, infra, 13a n.3). 4 contemplated that various sites throughout the WSURA would be improved over a period of several years by private parties and local and state agencies (App. D, infra, 71a-72a). The plan went into effect in January 1963 (id. at 75a). The WSURA plan called for the eventual provision of 2,500 units of low-income housing through a combina- tion of public housing projects and setting aside 20 to 30% of the units in certain middle-income projects for low-income residents (App. D, infra, 73a-75a). By 1969, a total of 1,584 low-rent units had been completed (id. at 81a). Shortly thereafter, however, local agencies in New York concluded that because of changed cir- cumstances the original commitment to provide adequate low-income housing in the area was not going to be met and that the only means of achieving that goal would be to convert an area known as Site 30, which had been intended for a middle-income housing project, to a public housing project (id. at 83a).? On August 11, 1971, the City Planning Commission approved the use of Site 30 for 160 units of public housing, and on November 11, 1971, the city’s Board of Estimate agreed (ibid.). Subsequently, in December 1972, the Secretary entered into a contract providing loan and annual contributions assistance for the Site 30 project. 3. On October 4, 1971, Trinity Episcopal School Cor- poration, which had built a combination school and middle-income housing project on Site 24 as part of the WSURA plan (App. D, infra, 64a, 76a, 89a), brought suit in the United States District Court for the South- ern District of New York to enjoin the construction of public housing on Site 30. Respondents Roland N../ Karlen and Alvin C. Hudgins, who had renovated brownstones in the urban renewal area, and the Com- 3Site 30 is located on the west side of Columbus Avenue, be- tween West 90th and West 91st Streets (App. B, infra, 13a n.3). 5 mittee of Neighbors To Insure a Normal Urban Envi- ronment (CONTINUE) intervened as plaintiffs (id. at 76a). The defendants included the Secretary and the City of New York (id. at 64a n.2)4 Plaintiffs’ contentions stemmed chiefly from the fact that Site 30 was near approximately one-half of the existing public housing in the WSURA and that, as a result of the new project, West 91st Street from Amsterdam Avenue to Central Park West would bor- der buildings containing 837 of the 1,231 public housing units in the area (J.A. 56).5 In light of this, plaintiffs alleged that the conversion of Site 30 from middle- income to public housing violated their contracts with the city, that the use of Site 30 for public housing vio- lated certain procedural requirements of state and fed- eral housing statutes, and that the Site 30 project, to- gether with other public housing projects in the area, would “tip” the racial balance of the neighborhood in violation of federal law (App. D, infra, 65a-66a). The district court rejected each of these contentions in a thorough opinion (id. at 89a-120a).® By the time of trial, plaintiffs also contended that, in entering into an annual contributions contract with the public housing agency for Site 30, the Secretary vio- *Strycker’s Bay Neighborhood Council, Inc., a public interest group of residents and community organizations, intervened as a defendant (App. D, infra, 64a n.2). °“J.A.” refers to the joint appendix in the court of appeals. ° After a detailed analysis of the community involved, the dis- trict court found that 160 units of public housing at Site 30 : ould not result in racial “tipping” of the neighborhood (App. D, infra, 96a-120a). The court of appeals affirmed this ruling on the first appeal (App. C, infra, 54a-55a), and respondents did not challenge the ruling in this Court. Respondents’ failure to seek certiorari thus eliminated from the case any claim that the Site 30 project might result in racial segregation. See Otero v. New York City Housing Authority, 484 F.2d 1122 (2d Cir. 1973). 6 lated the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seg., by preparing only a “special environmental clearance” (Gov't Exh. E) rather than an environmental impact statement (EIS).’ The Secretary had concluded that the new project was not a “major federal action” and would not have a “sig- nificant adverse effect on the environment” and there- fore that an EIS was not required (App. D, infra, 129a). Plaintiffs argued that the Secretary failed to con- sider whether the project would have a significant ad- verse impact on social attitudes and fears of residents caused by the influx of low-income families (id. at 130a). The district court rejected this argument, hold- ing that NEPA did not require consideration of such factors (id. at 128a-131a). In addition, plaintiffs claimed that the Secretary violated NEPA by not considering alternatives to the proposed use of Site 30 for public housing. The court rejected this argument on the ground that consideration of alternatives is only re- quired in an EIS (id. at 134a). The court of appeals affirmed on all but the NEPA issue (App. C, infra, 49a-62a). Without holding that an EIS was required,® the court concluded that HUD had violated Section 102(2)(E) of the Act, 42 U.S.C. 7The complaint was filed on October 4, 1971, over a year be- fore the Secretary entered into the annual contributions con- tract. For that reason, the complaint did not allege that the de- cision to fund the Site 30 project violated NEPA. The only claim against the Secretary was the allegation that HUD had violated federal housing laws (Compl. 14). On April 22, 1974, the dis- trict court granted plaintiffs leave to amend the complaint to allege (Tr. 673) that the Secretary had failed to comply with NEPA by not preparing an EIS before deciding to provide fi- nancial assistance. The amended complaint did not allege a vio- lation of Section 102(2)(E) of the Act, 42 U.S.C. 4332(2)(E), an issue that was not raised until post-trial briefing. 8The court only stated that it agreed with the Secretary that an EIS was not required for the entire WSURA (App. C, infra, 61a). 7 4332(2)(E),? which requires all federal agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources * * *” (App. C, infra, 55a- 61a). In the court’s view, this provision, which is inde- pendent of any duty to file an environmental impact statement, obliged the Secretary to consider housing al- ternatives to the project and to evaluate them on the basis of, among other things, the resulting “concentra- tion” of low-income families in a single area.!° The court remanded for consideration of these alternatives, stat- ing (id. at 60a-61a): In this endeavor consideration might well be given to the entire West Side Urban Renewal Area, the percentage of low-income units in that particular location, the sizes, type and designs of existing and possible alternative housing, whether there may be ways of spreading low-income units throughout the area rather than concentrating them in a few plots such as Site 30, and whether rehabilitation of existing housing may be developed as a means of achiev ng the Plan’s contemplated economic ratio. Those who live there and those who hope to live there are entitled to obtain their housing aided by federal funds in a balanced and integrated commu- nity as envisaged by the Plan. Nor is it sufficient to approach the problem on an Area-wide basis. The purpose of the Plan is integration—not concentra- *The court of appeals’ opinion refers to Section 102(2)(D). In August 1975, two weeks after the court’s decision. Section 102(2)(D) was redesignated as Section 102(2)(E) of the Act, 42 U.S.C. 4332(2)(E). See Act of August 9, 1975 Pub. L. No. 94-83, 89 Stat. 424. '°The court suggested, without saying so directly, that the district court erred in concluding that organized opposition to the project based on perceived social impact was not an en- vironmental impact within the meaning of Section 101(b) of the Act, 42 U.S.C. 4331(b) (see App. C, infra, 59a). 8 tion. That purpose would not be achieved by con- centrating low-income housing on 91st Street and compensating for this segregation by an equal con- centration of middle-income housing on 97th Street. 4. Following the remand, HUD conducted a thorough study of alternatives to the Site 30 project, which it submitted to the district court on April 15, 1977, in the form of a 200-page “Special Environmental Clearance” (J.A. 7-212).11 The report concluded that the proposed construction of low-income public housing on Site 30 was, on balance, an appropriate and environmentally sound response to the needs and conditions of the WSURA, that the project “[would] have no significant environmental impact since, it will not substantially change the income, racial, ethnic or age distribution of the neighborhood or [the] community,” and that it therefore should proceed as planned (id. at 54, 67-75). The report also stated that the proposed use of Site 30 was “clearly compatible with existing land-use and with development trends in the West Side” (id. at 27). Al- though it acknowledged that certain members of the community opposed the project on the ground that it would, in their view, threaten “the social balance” of the neighborhood (id. at 29), the report analyzed the neighborhood, found it to be stable, and determined that the project would not threaten to upset that sta- bility (id. at 29-34). In addition, the report noted that the 160-unit proj- ect would only introduce between 472 and 560 persons to the WSURA (J.A. 14, 60) and would result in only a 1.9% increase in the number of low-income units in the area (id. at 35, 54). The report conceded that the proj- ect would increase the number of public housing units in its immediate vicinity, but it identified at least five fac- 11The study is summarized in detail in the district court’s opinion on remand (App. B, infra, 18a-38a). 9 tors that already averted any “Chinese Wall” effect and suggested ten additional steps that could be taken to mitigate further any adverse social consequences (J.A. 56-58). | The report then considered numerous alternatives to the project, including (i) construction of the same or a similar project on another site; (ii) dispersal of low- income units on more sites; (iii) rehabilitation of exist- ing buildings in WSURA,; (iv) a rent subsidy program; (v) no project at all; and (vi) alternative uses for Site 30 (J.A. 67-75). One alternative—transferring the project to Site 9—would have resulted in a lower concentration of low-income housing, but it would have offered less recreational or parking area and would have required relocation of existing occupants and site clearance (id. at 69). Site 41 was also found to be an adequate alterna- tive, but it (like Site 30) was originally programmed for subsidized moderate income housing and “(t]he impacts related to social fabric of the community may not be ameliorated with transfer of the 160-unit public housing project from Site 30 to Site 41” (ibid.). Indeed, the re- port speculated that conversion of Site 41 to low-income housing “might be even more strongly opposed” be- cause many residents hostile to the Site 30 project lived even nearer to Site 41 (ibid.). And, as with Site 9, use of Site 41 would have required relocation of present oc- cupants and site clearance. Finally, the “most convincing” reason offered for not using Sites 9 or 41 was that at least two additional years of delay would result in meeting WSURA’s “demonstrated” need for low-income housing (J.A. 69). The report remarked that “(t]he continued inability of [the] government to meet these needs” was itself “an adverse environmental effect” (ibid.) and that the benefits of transfer to another site were “insurtficient to justify” these environmental costs (id. at 70). The district court found that the “Special Environ- mental Clearance” contained “a very illuminating and factual discussion of all appropriate [alternatives] to 10 construction of 100 percent low-income housing on Site 30” and that “HUD discharged its duty to examine al- ternatives with good faith objectivity” (App. B, infra, 41a).!2 It therefore vacated its preliminary injunction against the project and entered judgment for the de- fendants (id. at 48a). 5. The court of appeals again reversed and remanded, holding that the Secretary had violated NEPA in still another way (App. A, infra, la-lla). The court ac- knowledged that HUD had done a “careful analysis” and had “consider[ed the] alternatives” required by its first opinion (id. at 8a). “But ‘consideration’ ” of the en- vironmental factors, the court stated, “is not an end in itself ” (ibid.). NEPA also imposes certain “substantive standards” (id. at 7a), an agency’s compliance with which is subject to judicial review. First, the court of appeals held that NEPA prohibits “economic concentration.” The court observed that, to 12The court added (App. B, infra, 42a-43a): We find that HUD’s consideration of alternatives was neither arbitrary nor capricious. It was done in good faith and in full accordance with the law. * * * HUD’s decision was based upon a consideration of all relevant factors, to wit, site selection and design, density, displacement and relocation of residents, quality of the built environment, impact of the environment on the current residents and their activities, decay and blight, implications for the city growth policy, traffic and parking noise, neighborhood sta- bility, and the existence of services and commercial enter- prises to service the new residents. HUD weighed the technical and economic advantages and disadvantages of building or not building on Site 30 together with the environmental costs and benefits flowing therefrom. HUD gave careful and detailed attention to all the environmental factors contemplated as relevant under NEPA. The agency is not expected to arrive at a perfect solution of all environmental consequences of a proposed Federal project. * * * We cannot disturb HUD’s finding or rejection of alternatives as long as HUD’s choice among them was reasoned. 1] build a “17-story apartment building exclusively for low-income [families] in an area already containing a high percentage of low-income housing” might not cause racial “tipping,” but “it is not the [economic] integration contemplated by NEPA” (App. A, infra, 7a). Second, the court held that under NEPA “delay is an impermis- sible factor as against a further concentration of low- income housing” (id. at 10a). The Secretary thus erred by regarding delay in providing the poor with decent housing as an “overriding factor” and by not giving “de- terminative weight” to avoiding a concentration of low-income housing (id. at 9a). In sum, although the court found that HUD had fully complied with the pro- cedural mandate of NEPA, it concluded that the agency had violated the Act’s “substantive” requirements. It therefore reinstated the injunction against any federal assistance to low-income housing on Site 30 and re- manded once more for further proceedings (id. at 1la).}% REASONS FOR GRANTING THE PETITION The decision of the court of appeals represents a seri- ous misconstruction of an important federal statute. In holding that the National Environmental Policy Act forbids HUD from proceeding with a program to fi- nance badly needed low-income housing in New York City, despite the agency’s unquestioned compliance with the Act’s procedural requirements, the court of appeals’ ruling conflicts with this Court’s repeated ob- servation that “NEPA [sets] forth significant substan- tive goals for the Nation, but its mandate to the agen- cies is essentially procedural.” Vermont Yankee Nu- 'SThe court of appeals suggested that on remand HUD might consider financing a moderate-income project with a percentage of units reserved for low-income families “as envisaged by the original Plan” and that the agency should not ignore “recent de- velopments or thinking with respect to a trend away from high- rise apartments * * *” (App. A, infra, 9a). 12 clear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978). As the Court observed in Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976): Neither the statute [NEPA] nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the en- vironmental consequences of its actions. See Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463, 481 (CA2 1971), cert. denied, 407 U.S. 926 (1972). The only role for a court is to insure that the agency has taken a “hard look” at en- vironmental consequences; it cannot “interject it- self within the area of discretion of the executive as to the choice of the action to be taken.” Natural Resources Defense Council v. Morton, 148 U.S. App. D.C. 5, 16, 458 F.2d 827, 838 (1972). See also Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289, 319 (1975). There is no dispute that HUD took a “hard look” at the environmental consequences of providing financial assistance to the Site 30 project. It produced an exhaustive report, identifying and investigating every environmental consequence, weighing every alterna- tive, and discussing the relative advantages and disad- vantages of the proposed federal action. The decision of the court below to substitute its judgment for that of the agency about the weight to be accorded these fac- tors and the wisdom of low-income housing finds no support in NEPA and warrants this Court’s review. 1. The only NEPA requirement at issue in the pres- ent case is Section 102(2)(E). That provision requires agencies to “study, develop, and describe appropriate alternatives to recommended courses of action” where a proposal involves “unresolved conflicts concerning al- ternative uses of available resources * * *.” Assuming that the Site 30 project implicated such an “unresolved conflict,” even the court of appeals acknowledged that the agency fully studied, developed and described ap- 13 propriate alternatives in light of their likely environ- mental impact (App. A, infra, 8a). The court of appeals invalidated the agency’s decision because it disagreed not with the procedures followed by HUD in reaching its decision but with the decision itself. In the court’s view, the Secretary gave insuffi- cient weight to the benefits of economic integration and undue emphasis to the goal of promptly providing low-income families with decent housing. However, be- cause NEPA contains no special provision for judicial review, the Secretary’s substantive decision could be set aside only if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. 706(2)(A). The Secretary’s decision was not arbitrary, capricious or an abuse of discretion. The United States Housing Act sets a national goal of remedying “the acute short- age of decent, safe, and sanitary dwellings for families of low income * * *.” 42 U.S.C. 1487. Here, HUD de- termined that any alternative other than Site 30 would require at least a two-year delay in providing such housing for 160 families. In the meantime, due to the shortage of decent housing in the WSURA, those families and their children would be forced to live in substandard units, which would have severe human and environmental consequences.'!4 On the other hand, HUD found that the project would increase the number '*The court of appeals concluded that delay was an impermis- sible factor because of the government’s “continuing responsi- bility” under Section 101(b)(i) of the Act, 42 U.S.C. 4331(b)(1), “consistent with other * * * considerations of national policy,” to “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations * * *” (App. A, infra, 8a). But one “consideration of national policy” is the elimination of substandard housing. To that end, the United States Housing Act authorizes the Secretary to finance 100% low-income hous- ing projects. 42 U.S.C. 1437a. Avoidance of delay in achieving this goal and the suffering that inevitably would accompany delay is “consistent with * * * considerations of national policy.” 14 of low-income housing units in WSURA by less than two percent, and it attached importance to a number of additional factors.15 The resolution of these competing considerations, each of which was discussed by HUD at length, cannot be labeled as arbitrary, capricious, or an abuse of discretion. Nor was the Secretary’s action “not otherwise in ac- cordance with” NEPA. The appropriate weights to be assigned to competing policy factors are not preor- dained by NEPA; the Act expresses no preference be- tween, e.g., the environmental benefits of economic in- tegration and the environmental benefits of providing decent housing promptly to families now living in di- lapidated and rat-infested buildings. Moreover, even where there is an environmentally preferable alterna- tive, NEPA does not insist upon its adoption. To the contrary, the requirement that federal agencies con- sider the environmental consequences of their proposed actions presupposes that weights must be assigned to both environmental and non-environmental factors and that the latter, on occasion, may prevail. Indeed, NEPA regulations issued by the Council on Environ- mental Quality, which are entitled to substantial defer- See Fayetteville Area Chamber of Commerce v. Volpe, 516 F.2d 1021, 1028 (4th Cir. 1975); Alaska v. Andrus, 580 F.2d 465, 475-476 (D.C. Cir. 1978). 15These factors included the following: (1) the adverse en- vironmental impact of the proposed project would be minimal; (2) the benefits from relocation of the project to another site wouid be slight; (3) one of the two suitable alternative sites (Site 41) would be even closer to many of the objecting parties; and (4) the other suitable transfer site (Site 9) would involve reloca- tion of existing occu pants and a reduction in parking and recrea- tional area (J.A. 67-75). Although the court of appeals’ ambigu- ous reference to Otero (App. A, infra, 9a-10a) suggests that the project might lead to racial concentration, that conclusion was foreclosed by the first appeal, which affirmed the district court’s factual finding that the project would not lead to “tipping” (see note 6, supra). 15 ence (see Andrus v. Sierra C'ub, No. 78-625 (June 11, 1979), slip op. 9), recognize that an agency may reject an environmentally preferable alternative in favor of a course the agency deems required by other essential considerations of national policy. 48 Fed. Reg. 55978, 55986, 55999 (§1505.2) (1978). In sum, NEPA requires only that a federal agency give a “hard look” (Kleppe v. Sierra Club, supra, 427 U.S. at 410 n.21) at the environmental impact of a pro- posed decision. It does not dictate any specific substan- tive policy decision, and it surely does not authorize a court to recalibrate the competing factors and to re- quire adoption of a substantive decision different from that reached by the agency. Vermont Yankee Nuclear Power Corp. v. NRDC, supra, 435 U.S. at 558.16 2. The decision of the court of appeals is in conflict with decisions in other circuits holding that NEPA only requires an agency to consider the environmental con- sequences of its proposed action, not to give determina- tive weight to an environmentally preferable alterna- tive notwithstanding other important policy consid- erations. See, e.g., Matsomoto v. Brinegar, 568 F.2d 1289, 1290-1291 (9th Cir. 1978); Culpeper League for Environmental Protection v. United States Nuclear Regulatory Comm’n, 574 F.2d 633, 634-645 (D.C. Cir. 1978); City of Des Plaines v. Metropolitan Sanitary District, 552 F.2d 736, 738 (7th Cir. 1977); Save Our Invaluable Land, Inc. v. Needham, 542 F.2d 539, 16Of course, when an agency gives little or no weight at all to environmental values or when it rejects an environmentally preferable alternative for no apparent reason, its decision might be arbitrary and capricious. But that is a far cry from the court of appeals’ holding that NEPA requires agencies to give en- vironmental concerns specified weight, with the judiciary to do the specifying. Here, the court below agreed that HUD gave “careful analysis” to environmental factors (App. A, infra, 8a) but held that the agency’s decision nonetheless to fund the Site 30 project violated the “substantive standards” of NEPA (id. at 7a). 16 542-543 (10th Cir. 1976), cert. denied, 430 U.S. 945 (1977); Nucleus of Chicago Homeowners Ass'n v. Lynn. 524 F.2d 225 (7th Cir. 1975). In Matsomoto. for example, the Ninth Circuit held that “NEPA is essentially a procedural act” and that, once federal agencies are armed with the information required by the Act, “the decision, good or bad, may be made.” 568 F.2d at 1290. Judicial “[rJeview of the deci- sion on the merits * * * is not required” by NEPA, even though “[t]he project when finished may be a complete blunder * * *” (ibid.).17 And in City of Des Plaines, the Seventh Circuit emphasized the distinction between review of the merits of an agency decision, on the one hand, and review of the adequacy of its consid- eration of environmental factors, on the other, and stressed that judicial oversight of NEPA’s procedural requirements “does not open the back door to reargu- ment of the merits of the decision proposed * * *.” 552 F.2d at 738.18 Moreover, the decision below is incon- sistent with decisions holding that agencies may prop- erly take delay in achieving policy goals into account under NEPA in rejecting alternative proposals. See, e.g., Fayetteville Area Chamber of Commerce v. Volpe, 17See also Short Haul Survival Committee v. United States, 572 F.2d 240, 249 (9th Cir. 1978); Trout Unlimited v. Morton, 509 F.2d 1276, 1282 (9th Cir. 1974); Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1280-1281 (9th Cir. 1973). 18See also Nucleus of Chicago Homeowners Ass'n v. Lynn, supra, a ease closely resembling the instant litigation, in which the court of appeals limited itself to scrutinizing HUD’s com- pliance with the procedural dictates of NEPA in upholding the agency's decision to fund low-income public housing against the claims of local residents that it would drastically alter the character of the neighborhood. But cf. Conservation Council of North Carolina v. Froehlke, 473 F. 2d 664 (4th Cir. 1973), and Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346 (8th Cir. 1972), in which the courts found authority under NEPA to review the merits of agency action. 17 515 F.2d 1021, 1028 (4th Cir. 1975); Alaska v. Andrus, 580 F.2d 465, 475 (D.C. Cir. 1978). 3. The court of appeals’ decision threatens to permit courts to inquire into the wisdom of an agency’s sub- stantive policy decisions under the guise of ensuring compliance with NEPA. It is expected to have a par- ticularly severe impact on the Secretary’s administra- tion of federally assisted housing projects. HUD antici- pates that it will approve approximately 700 low-income public housing projects under the United States Hous- ing Act in each of the next five years and that it will fund approximately 1,800 projects annually under other housing programs for low- and moderate-income resi- dents.’ Although the Secretary attempts to avoid ap- proving projects that would concentrate subsidized housing in any one section of a metropolitan area (see 24 C.F.R. 200.710), each such project funded by HUD necessarily increases the “economic concentration” in its immediate vicinity and is subject, under the Second '9Several HUD programs offer financial assistance for the construction of new housing for low-income families and are thus subject to the claim of “economic concentration.” In addition to the program at issue here, 42 U.S.C. 1437f authorizes HUD to make housing assistance payments to private or public owners who agree to provide new or rehabilitated units for occupancy by “lower-income” families. These are families whose income do not exceed 80% of the median income for the area, as deter- mined by the Secretary (42 U.S.C. 1437f(f)(1)). HUD anticipates that it will approve approximately 1,000 such projects annually. 12 U.S.C. 1701q authorizes HUD to make loans to induce non- profit corporations to finance construction of rental or coopera- tive housing projects for the elderly or the handicapped. HUD estimates it will approve 320 such projects annually. 12 U.S.C. 1715/ authorizes HUD to insure mortgages on new construction of multifamily housing for low- and moderate-income families and families displaced by governmental action or a major disas- ter. HUD estimates it will fund approximately 450 projects an- nually that are insured under this section, with an additional subsidy under 42 U.S.C. 1487f to permit occupancy by low- income families. 18 Circuit’s approach, to endless litigation and judicial scrutiny of the merits of the final agency decision.” This is not a result Congress intended NEPA to achieve. 20For example, in King v. Harris, 464 F. Supp. 827 (E.D. N.Y. 1979), appeal pending, No. 79-7144 (2d Cir.), the district court enjoined the Secretary from funding less than 100 units of lower income housing in New York under 42 U.S.C. 1437f. Re- lying on the court of appeals’ decision in this case, the district court held that, even if the project would not result in racial segregation, it would result in an undue concentration of low- income housing. /d. at 843-844. At least five other cases are now pending in the district courts seeking to enjoin federal funding of low-income housing for alleged violations of NEPA or the holding in this case. Blackwood v. Harris, Civil No. 79- 1297 (D.D.C., filed May 11, 1979) (12 U.S.C. 1701q); Braucher v. Harris, Civil No. CA-H-79-122 (S.D. Tex., filed Jan. 19, 1979) (42 U.S.C. 1437f); Reed v. Harris, Civil No. 3-78-1294F (N.D. Tex., filed Sept. 22, 1978) (same); City of Plano, Teas v. Harris, Civil No. M-78-69-CA (E.D. Tex., filed July 7, 1978) (same); Dalzell v. Harris, Civil No. 1-78-28 (N.D. Tex., filed July 5, 1978) (same). CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. WADE H. MCCREE, JR. Solicitor General STUART E. SCHIFFER Acting Assistant Attorney General WILLIAM ALSUP Assistant to the Solicitor General BARBARA L. HERWIG MICHAEL JAY SINGER Attorneys EDWARD W. NORTON Acting General Counsel ARTHUR J. GANG TIMOTHY HARTZER Attorneys Department of Housing and Urban Development AUGUST 1979 APPENDIX A UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 1079—September Term, 1977. (Argued June 12, 1978 Decided December 14, 1978.) Docket No. 78-7147 ROLAND N. KARLEN, ALVIN C. HUDGINS and CONTINUE, Plaintiffs-Appellants, —against — PATRICIA KOBERTS HARRIS, Secretary of the Depart- ment of Housing and Urban Develepment, THE CITY OF NEW YORK and STRYCKER’s BAY NEIGHBORHOOD COUNCIL, INC., Defendants-A ppellees. Before: MooRE, MULLIGAN and GURFEIN, Circuit Judges. K * ok * * la 2a A. DAVID BENJAMIN, Esq., New York, N.Y. (Demov, Morris, Levin & Shein, Eugene J. Morris and Jonathan M. Bryer, of counsel), for for Plaintiffs- Appellants. PETER C. SALERNO, Assistant United States At- torney for the Southern District of New York (Robert B. Fiske, Jr., U.S. Attorney, of coun- sel), for Defendant-Appellee Harris. CAROLYN E. DEMAREST, New York, New York (Allen G. Schwartz, Corporation Counsel of the City of New York, Leonard Koerner, Esq., of counsel), for Defendant-Appellee City of New York. JOHN DE P. Douw, Esq., New York, New York (Catherine P. Mitchell, Community Action for Legal Services, Inc., of counsel), for Defendant-Appellee Strycker’s Bay Neighbor- hood Council, Inc. Moore, Circuit Judge; This is the second appeal to come before us in “a case directly affecting the future of a 20 square block com- munity and its more than 35,000 current and former residents.”! The particular site (Site 30) involved is part of the West Side Urban Renewal Area (““WSURA” or “Area”), and is located on the west side of Columbus Avenue, between West 90th and West 91st Streets, in the Borough of Manhattan, City of New York. See, 445 F.Supp. at 207 n.3. The area was to be developed in accordance with the West Side Urban Renewal Plan \Trinity Episcopal School Corp. v. Romney, 387 F.Supp. 1044, 1047 (S.D.N.Y. 1974). The area is in the west side of Man- hattan, New York City, between West 87th and 97th Streets and between Central Park West and Amsterdam Avenue. 3a (“the Plan”), which had as its objective the rehabilita- tion of the area on an integrated basis both racially and economically. A detailed description of the Plan, its de- velopment and various amendments is set forth in the trial court’s first opinion, reported at 387 F.Supp. 1044 (1974). An appeal from the decision approving the use of Site 30 for a low-income apartment building, which would be situated in a block containing other exclusively low- income buildings caused us to remand the case to the district court to ascertain from the Department of Housing and Urban development (HUD) what consid- eration had been given to other alternatives? so that “[t]hose who live [in the Area] and those who hope to live there [would be] entitled to obtain their housing aided by federal funds in a balanced and integrated community as envisaged by the Plan”. We said: “The purpose of the Plan is integration—not concentration” and “[T]hat purpose would not be achieved by con- centrating low-income housing on West 91st Street... .” Trinity Episcopal School Corporation v. Romney, 523 F.2d 88, 94 (1975). Accordingly, we re- manded for the consideration by HUD of reasonable al- ternatives to the development of Site 30 as a 100 per cent low-income housing project “consistent with the scheme of the Plan.” On the remand, HUD produced a lengthy document, with many exhibits attached, entitled “Special En- vironmental Clearance of Department of Housing and Urban Development”. It was filed with the district court on April 15, 1977. Thereafter defendants- appellees moved for summary judgment dissolving the injunction against building a 100 per cent low-income housing structure on Site 30 and dismissing the com- plaint. From the judgment dissolving the injunction and dismissing the complaint, plaintiffs-appellants appeal. *National Environmental Policy Act of 1969 §102(2)(D), 42 U.S.C. §4332(2)(D). 4a The trial court’s opinion is reported at 445 F.Supp. 204. A motion (F.R. Civ. P. §60(b)) for correction of judg- ment was made by appellants and denied, from which denial plaintiffs-appellants also appeal. Consideration of many of the environmental aspects relating to the construction of a 100 per cent low-income building on Site 30 which were treated in HUD’s report (A 7-212)3 is unnecessary. We remanded for the specific purpose of having “a study [made] by the appropriate agencies of possible ‘alternatives’ with respect to the present proposal to change the development of Site 30 to 100 per cent low-income housing.” 523 F.2d at 95. We thought that “[I]f attention is paid to the Plan and its purposes, the agencies with the cooperation of the interested parties should be able to arrive at an equita- ble solution”. Our attention, therefore, must center on that portion of the HUD report which deals with “Im- pact on the Social Fabric and Community Structures” (Ex. 8, A 54) and “Notable Impacts and Alternatives”. (A 67). A survey by the City of nine undeveloped sites found that none were “appropriate alternatives”. Amongst the reasons cited were that “[s]ubstantial delays would be imposed in relocating the development to another site”. (A 67). The City’s Housing and Development Administration (HDA) made additional comments as to three sites which it believed to be unacceptable. As to HDA’s survey, the HUD report said “the City’s evalua- tion of alternative sites seems incomplete. It did not address the possibilities of combining sites, of repar- celizing [sic] sites, of dividing the 160-units committed to by HUD onto two of the redevelopment sites... .” (A 68). The report continued: “There are two alterna- tive sites which are even more appropriate for the transfer of the proposed 160-unit development (perhaps with minimal design changes required) than those con- 3A” refers to the Joint Appendix submitted by the parties on appeal. 5a sidered by the City” (A 68), namely, Sites 9 and 41. HUD stated that “[t]he City’s most convincing reason in opposition to transfer of the project to an alternative site is the certainty of an additional long delay before construction could commence on any alternative site selected.” (A 69). The added delay was estimated to be at least two years; whereas the HDA estimated that - construction could start on Site 30 within six months. The City’s need for low-income housing within the area was cited as an additional reason for retaining Site 30 for this purpose as well as possible litigation or protest by residents of the alternative areas. As to Site 9, HUD found that “[flrom the standpoint of social environmental impact, this location [Site 9] could be superior to Site 30 for the development of low-rent housing” and that at Site 9 “the total concen- tration would be smaller ....” (A 69). As to Site 41, HUD said that this site “is a very appropriate alterna- tive site” but feared opposition from the residents of the area “although it appears to be quite a rational deci- sion, within the context of the Plan and its objectives to facilitate an integrated community”. (A 67). Despite these pro and con arguments, HUD came to the conclu- sion that “[mJeasured against the environmental costs associated with the minimum two-year delay, the bene- fits seem insufficient to justify a mandated substitution of sites”. (A 70). HUD also expressed the view that “[t]he continued inability of government to meet these needs [more low-rent housing for people of low income] would be considered an adverse environmental effect of transfer to another site”. (A 69). HUD, in dealing with the question of “Dispersal of Low Income Units on More Sites”, stated “For example, attitudes of low-income and rninor- ity persons toward street life are frequently con- ditioned by the economic limitations on their mo- bility and by their cultural heritage. Their use of public space is often in conflict with the values of middle and upperclass people, mobile and able to 6a spend leisure time away from home. Differing so- cial and cultural attitudes about territoriality and privacy, acoustical as well as spatial, could fuel the tension which excessively close physical relation- ships between ‘vest-pocket’ projects and high-cost housing might generate.” (A 71). In its analysis, HDA has said that “[tJhe high level of economic integration in the area, however, makes con- cern about additional public housing on Site 30 seem unwarranted.” (A 113) This statement would appear to be at variance with the facts as stated by the parties in their briefs which are to the effect that West 91st Street is presently lined with low-income housing. The question which now arises is: what is the role of a federal appellate court at this stage of the proceedings? In the report of HDA, the City’s Housing Authority and the City Planning Commission, dated November 17, 1976 (A 82) a history of the WSURA Plan is set forth, including amongst other things, a statement that “(t]he objectives were to accommodate the housing needs of all residents of all income levels ... .” (A 88) and that “(t]he Urban Renewal Plan’s objective is to create a racially and economically integrated commu- nity”. (A 110). Apparently, because of the large num- bers of low-income families living in sub-standard housing, the City changed these objectives. As a result, Site 30 was to be used for a 100 per cent low-income high-rise (17-story) apartment building. In seeking the scope of our reviewing powers we must look to the Congressional source, the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§4321, et seg. and the Administrative Procedure Act (APA), 5 U.S.C. §706(2)(A) which provides in part: “The reviewing court shall— * * * (2) hold unlawful and set aside agency action, findings, and conclusions found to be— 7a (A) arbitrary, capricious, an abuse of discre- tion, or otherwise not in accordance with law ” The provisions of NEPA contain the substantive standards necessary to review the merits of agency de- cisions under the APA. A mere reading of the HUD report reveals many warning signals which must be considered in relation to the local environment. The City proposes to build a 17-story apartment building exclusively for low-income tenants in an area already containing a high percentage of low-income housing. This alone constitutes concentration. Regardless of whether this would cause so-called “tipping”, it is not the integration contemplated by NEPA. Despite HUD’s assurances that such a development would “not substantially change the income, racial, ethnic or age distribution of the neighborhood or com- munity” (a questionable assumption) and that “[t]he proposed low-income project will have only a fractional effect on the economic balance of WSURA’s population, ...’ (A 54) these area statistics will not affect the lives of the present residents on West 91st Street. General comment about the “potential social envi- ronment impacts” is stated as follows: “While the choice of Site 30 for development as a 100 percent low-income project has raised valid questions about the potential social environmental impacts involved, the problems associated with the impact on social fabric and community structures are not considered so serious as to require that this component be rated as unacceptable.” (A 58). The importance of this decision lies in the fact that once a high-rise low-income apartment is built on Site 30, the character of the neighborhood is permanently established—at least for the life of the structure—if as represented, its adds to an already concentrated group of low-income buildings. This construction will not be a 8a temporary stop gap to enable the City to solve its problem for adequate housing for its low-income popu- lation. The Congress did not authorize the use of fed- eral resources for this single purpose. To the contrary it said, in part “it is the continuing responsibility of the Federal Government to use all practicable means, consist- ent with other essential considerations of national 7 policy, to improve and coordinate Federal plans ... and resources to the end that the Nation may .. . (1) fulfill the responsibilities of each generation as trustee of the environment for succeeding gen- erations... .” (NEPA §101, 42 U.S.C. §43831). HUD is not an agency merely to support whatever plan the City may find to be expedient in solving its problems. Its careful analysis of the various sites has shown that it has given “consideration” to alternatives. But “consideration” is not an end in itself. Ultimately there must be a decision and by some decision-maker. We do not depart from our statement that the func- tion of An Environmental Impact Statement (EIS) (here the Special Environmental Clearance) is to set forth “sufficient information to enable the decision- maker to consider fully the environmental factors in- volved and to make a reasoned decision after balancing the risks of harm to the environment against the bene- fits to be derived from the proposed action, as well as to make a reasoned choice between alternatives”. County of Suffolk v. Secretary of Interior, 562 F.2d 1368, 1875 (2d Cir. 1977) cert. denied, 434 U.S. 1064 (1978). The HUD Secretary herself has said (after com- menting that the HUD report had extensively criticized the City’s conclusions [HUD’s BR. p. 35)): “The Clearance nevertheless concludes, rea- sonably, that transferring the site would only cause additional unnecessary delay, and might generate opposition from the project’s new neighbors, while alleviating that of the plaintiffs in this action. e _ ESE Se 9a Under these circumstances, the agency was not re- quired by NEPA to choose an alternative location.” (HUD’s Br. at 35). It is thus quite evident that delay (outranking all other environmental considerations) was a paramount factor in HUD’s decision—witness, its statement that “[t]he City’s most convincing reason in opposition to transfer of the project to an alternative site is the certainty of an additional long delay before construction could com- mence on any alternative site selected” (A 69), which statement immediately followed HUD’s own conclusion, previously stated, that “[flrom the standpoint of social environmental impact, this [Site 9] would be superior to Site 30 for the development of low-rent public housing”. (A 69). But Congress, in authorizing federal aid and creating HUD itself, had exactly “social environment impact” in mind as expressed in the statute. Neither the City in its desire to take care of its low-income resi- dents nor HUD itself had the power to override this Congressional purpose. Therefore, consistent with our position taken in Otero v. New York City Housing Authority, 484 F.2d 1122 (2nd Cir. 1973), we hold that delay is not to be regarded as an overriding factor and that environmental factors, such as crowding low- income housing into a concentrated area,’should be given determinative weight. On remand, it may well be that consideration should also be given by HUD to the construction of a building containing a reasonable percentage of moderate-income residents as envisaged by the original Plan. Nor should recent developments or thinking with respect to a trend away from high-rise apartments, particularly where children would be involved, be ignored. The fact that the development of Site 30 was au- thorized prior to the recently expressed thoughts on the subject of the wisdom of high-rise apartments, even though not retroactive, should not deter HUD from giving consideration to them. No construction has yet 10a been commenced. It would be folly not to heed the most modern thinking on the subject where a major under- taking is involved. After all, what doctor would fail to use the most recently discovered curative medicine merely because the patient had become ill prior to its discovery? Although we regret further delay, we hold that delay is an impermissible factor as against a further concen- tration of low-income housing on West 91st Street as presently proposed by the use of Site 30 for that pur- pose. Once the area is committed to a high concentra- tion of low-income housing, the Congressional purpose of racial and economic integration is thwarted. We reit- erate what we said in Otero: “An additional source of the affirmative duty to integrate is found in the 1968 Fair Housing Act... which provides that ‘[i]t is the policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States,’ 42 U.S.C. §3601 and, in §3608, that ‘(d) The Secretary of Housing and Urban Development shall . . . (5) administer the programs and activities relating to housing and urban development in a manner af- firmatively to further the policies of this sub- , 9 chapter’. * OK OK “However, we are satisfied that the affirmative duty placed on the Secretary of HUD by §3608(d)(5) and through him on other agencies ad- ministering federally-assisted housing programs also requires that consideration be given to the im- pact of proposed public housing programs on the racial concentration in the area in which the pro- posed housing is to be built. Action must be taken to fulfill, as much as possible, the goal of open, in- tegrated residential housing patterns and to pre- vent the increase of segregation, in ghettos, of ra- cial groups whose lack of opportunities the Act was designed to combat.” 484 F.2d at 1133-34. lla To fulfill our conception of Congressional purpose we must take a somewhat negative position as to what is not to be done, namely, the construction of a high-rise apartment building exclusively for low-income families on Site 30. HUD has shown that there are ways to avoid such a concentration. Pending such a solution we reinstate the injunction against the construction of a low-income apartment on Site 30 and remand to the dis- trict court for further consideration in the light of this opinion. 12a APPENDIX B TRINITY EPISCOPAL SCHOOL CORPORATION AND TRINITY HOUSING COMPANY, INC., PLAINTIFFS, and ROLAND N. KARLEN, ALVIN C. HUDGINS AND CONTINUE, PLAINTIFFS-INTERVENORS, V. PATRICIA ROBERTS HARRIS, SECRETARY OF DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, ET AL., DEFENDANTS, and STRYCKER’S BAY NEIGHBORHOOD COUNCIL, INC., DEFENDANT-INTERVENOR. No. 71 Civ. 4815 (IBC). United States District Court, S. D. New York Jan. 19, 1978 OPINION IRVING BEN COOPER, District Judge. The Government has moved to dissolve the Order en- tered by this Court on September 25, 1975, which en- joined construction on Site 30 of the West Side Urban Renewal Area. Additionally, the Government has moved for summary judgment dismissing the com- plaint. Both motions are granted. l3a Before embarking on the discussion of the issues now before the Court, a very brief recital of the history per- taining to the instant applications is appropriate.! This action was commenced by plaintiffs Trinity Episcopal School Corporation (hereinafter “Trinity”) and Trinity Housing Company, Inc.,? to enjoin conversion of the housing project planned for Site 30° of the West Side Urban Renewal Area (“WSURA”) from 30 per cent low-income housing to 100 per cent low-income housing and to prevent the use of federal funds therefor. Plain- tiffs Roland H. Karlen, Alvin C. Hudgins and CON- TINUE (Committee Of Neighbors To Insure a Normal Urban Environment) later intervened. The named de- fendants included, inter alia, the United States De- partment of Housing and Urban Development (“HUD”) and the City of New York. Strycker’s Bay Neighbor- hood Council, Inc., was allowed to intervene as a de- fendant. J At the original trial of this action, we were presented with four issues for resolution: (1) whether the defend- ants had breached their contract with Trinity; (2) whether the defendants had failed to conform with the purposes and intent of the West Side Urban Renewal Plan promulgated by City and State agencies to re- habilitate a portion of WSURA which includes Site 30; ‘A fuller chronicle of the lengthy and convoluted turmoil inci- dent to this litigation is set forth in our opinion Trinity v. Romney, 387 F.Supp. 1044 (S.D.N. Y. 1974). ? By Stipulation and Order filed December 16, 1977, plaintiffs Trinity Episcopal School Corporation and Trinity Housing Com- pany, Inc., withdrew from the litigation. Consequently, only plaintiffs-intervenors are left to carry this action forward. 3 Site 30 is located on the west side of Columbus Avenue, be- tween West 90th and West 91st Streets, in the Borough of Man- hattan, City of New York. The West Side Urban Renewal Area, about twenty blocks in area, is north between West 87th and West 97th Streets, and west between Central Park West and Amsterdam Avenue. l4a (3) whether the concentration of low-income housing in Trinity’s immediate area would create an impermissible “pocket ghetto” of a nonintegrated nature; and (4) whether HUD had complied with the requirements of the National Environmental Policy Act (hereinafter “NEPA”). We found in defendants’ favor on all four is- sues. The Court of Appeals affirmed our judgment on the first three issues, but remanded the case back to us and ‘as the fourth. Trinity v. Romney, 523 F.2d 88, 95 (2d Cir. 1975). We had found HUD’s determination that construction of low-income housing on site 30 would not “significantly [affect] the quality of human environ- ment” was not an arbitrary and capricious decision. We had therefore held that an Environmental Impact Statement (“EIS”), otherwise required by Section 102(2)(C) of NEPA, Section 4332(2)(C), Title 42 of the United States Code, would not be necessary. Trinity, 387 F.Supp. at 1077, 1082. Consequently we concluded, erroneously, that HUD did not have to consider alter- natives to construction of low-income housing on Site 30. Upon that error the Court of Appeals reversed and remanded holding that Section 102(2)(D) of NEPA, Sec- tion 4332(2)(D), Title 42 of the United States Code,‘ in- dependently of Section 102(2)(C) of NEPA, imposed upon a federal agency the obligation to consider alter- natives wherever a proposed federal action involves un- resolved conflicts concerning alternate uses of available resources. Trinity, 523 F.2d at 93. The mandate by our Court of Appeals to us is clear and explicit (523 F.2d at 95): We find that HUD’s acceptance of the “no alterna- tives” conclusion as a matter of law fails to meet 4Since the Court of Appeals announced its decision, Section 102(2)(D) of NEPA has been redesignated Section 102(2)(E). However, for clarity and convenience we will continue to refer to it as Section 102(2)(D). lda the directive of 102(2)(D) of NEPA. We remand so that the District Court can fashion an appropriate order requiring HUD to consider reasonable alter- natives to the development of Site 30 as a 100 per- cent low-income housing project to the fullest ex- tent possible using HUD regulations as guidelines for the type of alternatives and the context of urban environmental factors to be used in the proc- ess of consideration of alternatives, consistent with the scheme of the Plan. The Circuit Court disapproved HUD’s action in simply adopting the conclusion of the New York City Housing Authority (“City Housing Authority”) that there were no alternative site locations because of the scarcity of land in WSURA (523 F.2d at 94): This blanket generalization unsupported by the evidence as to alternative sites within the area (not to mention other potential sites) does not conform with HUD’s responsibilities. HUD is not required to search out potential sites throughout the New York metropolitan area but the federal agency must itself determine what is reasonably available especially where as here the building of public housing is part of a coordinated plan to deal with the broad problem of meeting the housing needs of low income residents. In delineating what HUD’s consideration of alterna- tives should embrace, the Circuit Court required HUD to investigate alternatives not from a viewpoint as to how HUD or the City Housing Authority would choose to resolve the City’s low-income housing situation, but “as to how within the framework of the Plan its objec- tive of economic integration can best be achieved with a minimum of adverse environmental impact” (523 F.2d at 94): [HUD’s search should take in] the entire West Side Urban Development Area, the percentage of low- 16a income units in that particular location, the sizes, types and designs of existing and possible alterna- tive housing, whether there may be ways of spreading low-income units throughout the area rather than concentrating them in a few plots such as Site 30, and whether rehabilitation of existing housing may be developed as a means of achieving the Plan’s contemplated economic ratio . . . Nor is it sufficient to approach the problem on an Area- wide basis. The purpose of the Plan is integration—not concentration. The factors to be considered by a federal agency be- fore deciding to build in an urban environment were enumerated by the Circuit Court (523 F.2d at 93-94): site selection and design, density, displacement and re- location, quality of the built environment, impact of the environment on the current residents and their ac- tivities, decay and blight, implications for the city growth policy, traffic and parking, noise, neighborhood stability, and the existence of services and commercial enterprises to service the new residents. Against these factors, the Circuit Court held that HUD was required by NEPA and its own regulations to consider a variety of alternatives (523 F.2d at 94): alternative locations or sites, alternative of not building, alternative designs both in use of site and size of individual apartment units and number of total units, dispersal of the low-income units on more sites in WSURA, alternative measures for compensating or mitigating environmental impacts, and finally, alternatives requiring action of a signifi- cantly different nature which would provide similar benefits with different impacts such as rehabilitation of existing buildings in WSURA as public housing proj- ects. Pursuant to the mandate of our Circuit, on Sep- tember 25, 1975, we enjoined further construction of public housing on Site 30 until the mandate had been complied with. On April 25, 1977, HUD filed with this Court its completed Special Environmental Clearance 17a (hereinafter “Clearance”). Subsequently, on September 21, 1977, the Government moved to dissolve the Court’s Order of September 25, 1975, and for summary judg- ment dismissing the complaint in its entirety contend- ing that the mandate of the Second Circuit had been complied with. Plaintiffs filed their answering papers on October 25, 1977; oral arguments were heard October 26 and reply papers received on November 11 and 14.5 The Government’s applications are now ready for deci- sion. Plaintiffs strenuously disagree with the Government that HUD has complied with the mandate of the Second Circuit. Plaintiffs insist that the “matter” be returned to HUD for further proceedings. Among the objections voiced by plaintiffs is that HUD followed Section 102(2)(C)(iii) and not Section 102(2)(D) as the Circuit Court specified. Furthermore, plaintiffs claim that in proceeding according to Section 102(2)(C) HUD avoided having to hold public hearings, a course which plaintiffs assert is necessitated by Section 102(2)(D). Plaintiffs also submit that had “the proper procedure ... been followed, and a correct analysis ... made of the ele- ments being evaluated, it would have been established that 160 units of low-income public housing should not be built on Site 30 and the funds for such housing should be transferred out of the area [WSURA] to another site where such housing is needed and there are a number of such sites available.” Plaintiffs’ Mem- orandum of Law dated October 24, 1977, at page 4. Plaintiffs additionally contend that (1) the Clearance prepared by HUD as to alternatives is a “rubber stamp” of the position of defendants in this action;® (2) the Clearance was prepared by individuals who are not residents of WSURA; (3) defendant Strycker Bay °We denied plaintiffs’ request to surreply. SPresumably, by this plaintiffs mean that the Clearance is a “rubber stamp” of the City’s position. 18a dominated the input and preparation of the materials included in the Clearance and the conclusions set forth in it; and (4) that the Clearance is unreasonable, arbi- trary and capricious. As appears below, we find plain- tiffs’ conclusory assertions to be without merit either in law or fact and, accordingly, we grant the Govern- ment’s motions. THE CLEARANCE The Clearance prepared by HUD and filed with this Court on April 25, 1977, is a substantial document in excess of two hundred legal-size pages. The first four pages identify the project and summarize the conclu- sions reached by the Clearance. The next six pages are a technical analysis of whether Site 30 is appropriate for construction of the type and size of housing which is proposed for the site from the viewpoint of the follow- ing criteria: slope stability, foundation conditions, ter- rain, soil permeability, water supply, impact on sani- tary sewer system, impact on energy resources, and effect on neighborhood character. The next 59 pages of the Clearance comprise the ac- tual study (“Study”) completed by HUD in compliance with our Order. The remaining 150 pages are exhibits and attachments in support of the conclusions reached in the Clearance. To prepare the Clearance, HUD solicited the views of those local agencies directly involved with construction on Site 30—the New York City Planning Commission, the Housing and Development Administration and the New York City Housing Authority. HUD requested each of the three local agencies to review and comment on alternatives to construction of low-income housing on Site 30. HUD also requested the agencies to provide information on a number of environmental factors rel- evant to HUD’s assessment (Study, p. 1). In addition to soliciting views from local government agencies, HUD also sought views from the public bearing on the en- 19a vironmental significance of the proposed construction on Site 30. This was done through a published public notice on October 28, 1975.7 On the first page of the Study, HUD specifically re- fers to the decision of the Court of Appeals in the in- stant litigation and quotes that the decision required HUD to consider reasonable alternatives to the develop- ment of Site 30 as a 100 per cent low-income hous- ing project to the fullest extent possible using HUD regulations as guidelines for the type of al- ternatives and the context of urban environmental factors to be used in the process of the considera- tion of alternatives, consistent with the scheme of the Plan. Nine pages of the Study (pp. 12-20) are devoted to a detailed examination of the character of the neighbor- hood of WSURA. In assessing all reasonable alterna- tives to the fullest extent possible, HUD prepared a rigorous analysis of the existing WSURA community. We are impressed with it as being thorough and exhaustive. Among the factors surveyed in this Study are the stability of the minority population in WSURA and the extent of economic integration. On the former point the Study concludes (at pp. 17-18): Kov social indicators such as incidence of welfare dependency and number of broken families show the WSURA tenancy to be significantly more sta- ble than public housing tenancy generally. The high “The New York Times advertisement, 3” by 7” long, was in the Real Estate section; it invited the public to submit “relevant facts bearing on the issue of the project’s environmental signifi- cance...” Of course, plaintiffs knew that HUD was preparing such a Clearance and submitted through their counsel 45 letters apparently gathered by plaintiff CONTINUE from its members. The responses from the public (including the immediate forego- ing) are collated and analyzed in Exhibit A 6 of the Clearance. 20a percentage of elderly, the smaller number of chil- dren, the lower proportion of minority dominance, all contribute to this agreeable sociai profile .. . [T]he percentage of minors in WSURA projects [is] substantially below the customary proportion in public housing. Also noteworthy is the higher per- centage of families with two adults employed. As to the welfare recipients in WSURA, whose number HUD took to be an indicator of social pathol- ogy, the Study reviews the data and states (at p. 18) that [it shows] a remarkable stability in the incidence of welfare recipiency in WSURA for the first five years of this decade, numerous allegations to the contrary [notwithstanding]. The numbers suggest that the welfare tenancy of the newer, econom- ically integrated buildings in WSURA derives largely, if not exclusively from the re-housing of title-vested relocatees from temporary holding sites. By contrast, we note a substantial increase in home relief cases (without children)—citywide, borowide, community districtwide, and, in the area which surrounds WSURA. in assaying the character of the West Side Urban Renewal Area, the Study observes that “The neighbor- hood social character ... is one of health diversity in race, ethnicity, and income, with no convincing evi- dence of community instability.” Study, p. 18. Earlier, the Study notes (p. 13) that filIn terms of investment, density, land use, de- velopment patterns and other physical components of neighborhood character, [Site 30] is clearly suit- able for the proposed project. Serious questions have been raised about the suitability of the site from the viewpoint of the social character of the neighborhood, because of the existing concentra- tion of low-rent housing units in the immediate vi- cinity of Site 30. WSURA is generally recognized 2la to be a racially, ethnically and economically inte- grated area, where widely, but not universally held preferences for diversity and commitment to inte- gration have helped to reduce social distance be- tween disparate subcommunities. After carefully weighing and sifting the extensive data HUD has compiled regarding WSURA, the Study re- jects the allegation that development of more low- income housing, particularly at the location of Site 30, would jeopardize the social balance of the larger com- munity within WSURA. HUD concludes that increased criminal activity, which plaintiffs claim would accom- pany the proposed construction on Site 30, does not stem from low-income housing per se: It is a function of “the very elements of urban life prized by the community—size, density, diversity, wealth of open space and public facilities which attract ‘outsiders’ from proximate areas of lesser social stability.” Study, p. 18.8 The Study devotes a considerable space (pp. 21-23) to reviewing congestion in the neighborhood schools serving WSURA and concludes that most schools in WSURA are underutilized and could easily accommo- date the students expected to be generated by a 160 unit low-income project as planned for Site 30. The Study describes the availability of employment both within and without WSURA and the accessibility of public transportation to residents of WSURA. The Study further states that the work force of 145 primary wage-earners and 13 secondary wage-earners, expected to reside in the low-income building contemplated for Site 30, would only have a negligible effect on the ex- * Before stating its conclusions, the Study indicates the perti- nent data and facts it relied upon. See County of Suffolk v. Secretary of the Interior. Nos. 1187, 1258, 562 F.2d 1368 (2d Cir. 1977). Similar treatment appears throughout the entire Study. 22a tensive mass transit facilities available throughout WSURA (Study, p. 49). HUD notes that while the City’s zoning permits only 20 on-site parking spaces, they would be fully adequate: Forthcoming increases in gasoline fuel prices can — be expected to reduce the extent of auto ownership among low-income motorists. The enforcement of alternate side [of the street] parking restrictions in the area is also an effective disincentive to auto ownership in the area. (Study, p. 49). Also encompassed within the Study is a consideration of whether Site 30 is adequately served by stores for shopping and whether there are sufficient playgrounds and open space (Study, pp. 24-25). HUD concludes that the recreational area annexed to the Site 30 project will accommodate the diverse needs of the project’s resi- dents and will also provide an attractive addition to the WSURA streetscape (Study, p. 46). Hospital and social services in WSURA will only be minimally affected by the 160 households added by the use of Site 30 for low-income housing. HUD notes (at p. 47) that the stability, industriousness and independence of families living in NYCHA [New York City Housing Authority] projects in WSURA is markedly superior to typical public housing tenancy. Sensi- tive tenant selection, with full priority rights for former site occupants ... could assure a project population with a high percentage of employed heads-of-household, a low index of welfare depen- dency and minimal requirements for extensive public services. An extensive section of the Study (pp. 26-30) is de- voted to a detailed and full discussion of the availability of police and fire protection within WSURA in general and for Site 30 in particular. While there are no fire 23a companies within the geographical area of WSURA, several companies are stationed nearby and their re- sponse time to Site 30 is two minutes—well within na- tional standards (Study, p. 26). The Study refers to a review by the New York City Fire Department, and, according to the Fire Commissioner, it has no objec- tions regarding accessibility and availability of fire pro- tection for the project intended for Site 30.9 The apparent inadequacy of police services, which was the subject addressed most often in the responses HUD received from its advertisement, is extensively reviewed. Site 30, located in a police precinct of 0.91 square miles, is considered to be in a high crime area. We had remarked, Trinty, supra at 1070, that crime figures from 1971 to 1973 had shown a marked decline: however, the Study notes (pp. 27-28) that since 1974 statistics indicated a marked increase in the number of homicides, rapes, burglaries, robberies and grand lar- cenies committed in the general area of WSURA. From 1973 to 1976, the number of criminal complaints filed in the precinct serving Site 30 has increased at a slightly greater rate than the rate for the Borough of Manhat- tan. Pursuing the examination further, the Study dis- closes (p. 28): Felony crime rates in 1973, however, were at a rel- atively low point in recent history of the 24th Pre- cinct [covering Site 30] and reflected the marked decrease since 1971... . Therefore, a wider study was indicated, using 1971 as the base year. From [New York Police Department] annual statistical reports for the year 1971 through 1976, a broader tabulation of complaints within the 24th Precinct *Indeed, to the extent the project on Site 30 accommodates relocatees now resident in temporary holding areas (which could be demolished or rehabilitated when vacated), there may be a net reduction in required fire department services by the elimi- nation of non-fireproof and possibly inadequately wired tene- ments from the area (Study, p. 48). 24a was complies [sic]... . Use of the year 1971 as a base yields different conclusions about the increase in felony crime in the 24th Precinct. The total number of felony complaints, which had dropped 32.6 percent from 1971 to 1973, has been rising steadily but, at the end of 1976, still stood 9.4 per- cent below the 1971 level.'° In assessing the relationship between criminal activity and population, the Study observes that since 1970 there has been a sizeable net increase in the population of WSURA as numerous housing projects were com- pleted and occupied (Study, p. 29). The Study confesses (p. 29) the absence of objective yardsticks to measure the adequacy or inadequacy of police protection. It attributes this to the fact that “adequate police protection” is, to an extent, defined subjectively and would necessarily reflect the differing perceptions of the various segments of the neighbor- hood population. Nonetheless, the Study considers the number of arrests to be a relevant and objective factor. HUD acknowledges that though the 24th Precinct ranked 13th in felony complaints, it ranked 23rd among the 73 City precincts in felony arrests. The considera- tion HUD gives to the problem of police protection is perceptive and balanced (Study, p. 30): The data and analysis presented ... show a high incidence of crime in the precinct, a fair share of which occurs in WSURA, particularly crimes 10Percentage changes between 1971 and 1976 for individual categories of offenses are (Study, p. 28): Category Change Murder and Non-negligent manslaughter +153% Forcible Rape +112% Robbery 29% Felonious Assault ne [no change 71 Burglary 4% Grand Larceny 17% Grand Larceny-Motor Vehicle 20% Other Felonies 14% 25a against property and those crimes against the per- son which involve property; the “fair share” ap- pears based on population. The arrest record of the 24th Precinct suggests need for improvement, which its new Commander may be undertaking. Based on the above, a marginal rating is assigned to this component, but a recommendation is hereby made to accept the marginal component because of minimal impact, and the general ability of the New York Police Department to allocate additional re- sources to the 24th Precinct on a showing of need. The Study concludes (p. 48) that the presence of low- income housing on Site 30 is not likely to have any dis- cernible impact on the police services in the community. HUD’s conclusion is based on its expectation that the City Housing Authority will tenant Site 30 with great care.1! HUD similarly reviews (pp. 32-33) the adequacy of social services, senior centers, youth services, and transportation services. It concludes that the present aforementioned services are adequate to meet the needs of the estimated 500 new inhabitants who would be living within the proposed housing on Site 3012 (Study, p. 47.) The inadequacy of sanitation services, a frequent complaint in the responses HUD received from the public, is a problem which HUD notes is not confined to '! Indeed, the operation of Site 30 by the City Housing Au- thority may actually reduce the demand on City police services because Housing Police will be assigned to on-site patrol func- tions (Study, p. 48). '2The exception is day care facilities for infants. HUD notes that these are failing to meet the substantial demand in WSURA (Study, p. 32). However, as this shortage is equally acute throughout the City and not peculiar to the immediate en- virons of Site 30 or WSURA, it is not a relevant factor in weighing alternatives to construction on Site 30. 26a WSURA,; it pervades the city.'* However, HUD con- clades on the basis of field observations by its staff in 1977 that the community appeared clean and well- serviced by municipal sanitation workers (Study, p. 34), 14 A crucial segment of the Clearance discusses the im- pact construction of low-income housing will have on the social fabric and community structures of WSURA (Study, pp. 38-42). WSURA, according to HUD, is ra- cially, ethnically, and economically integrated. For various reasons the prospective residents of Site 30 are expected to reflect the same demographic characteris- tics of WSURA. The explanation offered (p. 38) is the small size of the project proposed for Site 30 (160 units or about 500 tenants) as well as the fact that first priority for occupancy will be given to title-vested ten- ants of WSURA who are now resident within the area on temporary holding sites, with a second priority in occupancy for former residents of WSURA who wish to return. HUD also concludes that a 160 unit fully low-income project will only have a fractional effect on the economic '8The minutes of the Local Community Board indicate that the problems of sanitation (or lack thereof) affect the entire area within its baliwick (from 59th Street on the south to Cathedral Parkway on the north, from the Hudson River east to Central Park). Indeed, because the problem “{is] due to a shortage of personnel and equipment, there would be little improvement untii the general public helped itself as a result of a public rela- tions program and participation by Block Associations and the general public in enforcement and clean up.” Study, p. 34. Thus, siting low-income housing elsewhere in WSURA or, for that matter, in the West Side would present the same problem with sanitation as encountered on Site 30. at 14(T]he premises of other [New York City Housing Au- thority] projects in WSURA have invariably been clean and or- derly when visited on numerous occasions by HUD staff.” Study. p. 48. 27a balance of WSURA’s population,!> and that even if the impact is limited to the 25 already existing projects constructed or redevcloped in WSURA, the net in- crease of low-income families will be less than two per- cent. Within the context of the larger community, the approximate order of magnitude for the increase of low-income families will be one percent (Study, p. 39). HUD squarely addresses an issue raised by the Cir- cuit Court, Trinity, supra, at pp. 94-95, and ardently fostered by plaintiffs throughout the entire history of this litigation: the concentration of public housing within a severely limited area of WSURA. If Site 30 is developed as 100 percent low-income housing, West 91st Street from Amsterdam to Central Park West will border buildings containing 837 of the 1231 public housing units in the area (Study, p. 40). Defending the wisdom of Site 30 as the choice for additional public housing, the Study observes that [t]he siting of 68 percent of all public housing units on a single one of the 11 crosstown axes in the area may display either insufficient sensitivity to public attitudes and urban design principles, or it may re- The Study (p. 38) demonstrates this fractional effect by means of the following table: Without P.H. Project With P.H. Project on Site 30 WSURA on Site 30 WSURA Units in economically 4382 84.6% 4352 82.1% integrated buildings Units in low-rent 795 15.4% 955 17.9% housing projects Units for middle/ 3390 65.5% 3390 63.5% moderate income Units for low-income 1787 34.5% 1947 36.5% Units occupied by 3303 63.8% 3303 61.9% middle/moderate income * Units occupied by 1874 36.2% 2034 38.1% low-income * * Assumes continued occupancy of 87 middle/moderate income units by families receiving welfare rent assistance. 28a flect a calculated administrative or political decision made after consideration of several factors which tend to mitigate the potential adverse reaction to the decision. Study, p. 40. HUD listed (p. 40) the factors as follows: (1) The physical appearance of the public housing project structures, existing and planned, is gener- ally harmonious with other, nearby housing de- velopments, and is mostly not stereotypical of New York City public housing design and construction. (2) Compliance with WSURA Plan requirements for open space will produce an open profile on the Site 30 block, and avert a potential “Chinese Wall” effect from the adjacency of the Site 30 project and Stephen Wise Tower. (3) One hundred of the public housing units along the 91st Street axis are located in 15 [rehabilitated] brownstones which blend into their surroundings with indifferent success. Street number signs and certain other common touches identify these struc- tures and set them apart from their neighbors, but their appearance does not scream out—‘“Public housing!” (4) The tenant characteristics point to an impres- sive level of social and familial stability in the WSURA public housing project. (5) Active efforts, through such programs as the Goddard-Riverside Community Center’s youth program supported by CJCC, to modify anti-social behavior by area juveniles. HUD concedes that low-income housing on Site 30 will distress the sensibilities of certain residents of the immediate area. In conseqsence, HUD has directed the City Housing Authority to take measures to ameliorate the impact of the housing. These measures include (pp. 40-42): (1) requirements placed on the turnkey developer to select materials for exterior walls and surfaces 29a which, in color and texture, depart from the mate- rials commonly used in public housing projects. (2) requirements placed on the turnkey developer to incorporate into the exposed exterior surfaces of the building such details or treatments which will contribute to the distinctiveness of the structure. (3) requirements placed on the turnkey developer to assure, either through choice of materials or treatment thereof, exterior or walls on the north and east facades particularly which will be either graffiti-resistant or will readily permit effective and easy removal of graffiti [sic]. (4) sensitive tenant selection by the Housing Au- thority, whose tenant screening and selection pro- cedures at the controversial Forest Hills public housing project produced a project population which has been successfully integrated into the surrounding community with astonishing rapidity and lack of conflict. (5) strict compliance with the City’s commitments to provide priority in occupancy to present and former title-vested site occupants only. (6) potential involvement of community leadership, perhaps through the vehicle of Community Board 7, in the tenant selection process, to the greatest extent permitted by law and regulation. (7) the assignment of qualified Housing Authority personnel, after initial occupancy commences, to provide the full spectrum of tenant services avail- able at the Authority. (8) the assignment of adequate Housing Authority police protection for the residents of the cluster projects around the intersection of W. 90th Street and Columbus Avenue. While the primary function would be to augment the City police services in this high-crime precinct, their visible, uniformed pres- ence might also still some unreasoned fear of mid- dle and upper-income class residents, and would certainly contribute to an atmosphere of orderli- ness in the area. (9) an affirmative pursuit by the Housing Author- ity of community services to occupy the project’s 30a community space. In view of the unmet demand for day care and youth services, these might be the most appropriate uses. The authority should con- sult at an early date, with the director [s] of Goddard-Riverside Community Center ... and Goddard-Riverside Day Care Center . . . on these matters. Since Goddard-Riverside Community oc- cupies space in both Stephen Wise Towers and in the vest-pocket project diagonally opposite Site 30, they would be the most logical group to operate and provide such services as infant and child day eare, or perhaps an after-school center. While the latter might attract children from the neighboring projects as well as Site 30, it could serve as a neighborhood resource, as does the community center in the Forest Hills project. (10) an affirmative pursuit by the Housing Author- ity to attract commercial occupants for the large ground-floor commercial space in the project. Choice of tenant(s) should be made on the basis of neighborhood, as well as project needs to maximize social interactions between project residents and their neighbors. At page 42 of the Study HUD concludes [that] while the choice of Site 30 for development as a 100 percent low-income project has raised valid ques- tions about the potential social environmental im- pacts involved, the problems associated with the impact on social fabric and community structures are not considered so serious as to require that this component be rated as unacceptable. HUD conditions its approval of the low-income hous- ing planned for Site 30 on the City’s good faith com- pliance with the ameliorative measures HUD outlined. Towards seeing that the substance of each recommen- dation is implemented, the City Housing Authority is required to submit quarterly progress reports during the project’s development and yearly reports thereafter (Study, p. 42). 3la ALTERNATIVES The Study devotes pages 51 to 59 exclusively to a consideration of alternatives to construction of low- income housing on Site 30. To that objective, HUD di- rected the City of New York to survey the remaining nine undeveloped sites in WSURA. After that survey was completed, the City concluded (see Study, p. 51) that none of the sites were appropriate alternatives since (a) transferring the 160 units of low-income hous- ing to another site would not silence opposition by cer- tain segments of the WSURA community; it would only cause relocation elsewhere; (b) the substitution of any of the seven large sites would result in “under- utilization of good sites”; (c) demolition and relocation would be required for use of any alternative site and the costs thereby incurred would be, as described by the City (see Study, p. 51). “a financial hardship”; (d) tentative sponsors have been designated for each of the alternative sites; and (e) substantial delays would be imposed in relocating the development to another site. The City also studied three sites in extenso but con- cluded that they would not be “appropriate alterna- tives” to proceeding with the development of Site 30 as planned. HUD summarized the City’s conclusions as follows (Study, p. 52): (a) Site 23, a mid-block parcel between W.92 and W.93 Streets, can accommodate 130 units. The City currently contemplates an urban renewal plan change to delete from planned demolition and to re- tain two sound structures on W.93 St. and desig- nate them for rehabilitation. The reduced size of Site 23 could take between 80 and 100 housing units of new construction, following relocation of tenants and demolition of one additional occupied structure on site. Time delays are also considered significant. (b) Site 45/46, an L-shaped site on the northeast corner of Columbus and W.87 and extending along 32a the Avenue frontage to W.88, is planned for 106 units. It has only *% the area of Site 30, and is not considered a viable alternative because of the “loss” of 54 units ... (160-106) of public housing presumed to occur in the substitution. The site is occupied; the time and money costs of relocation and demolition are considered important con- straints. (c) Site 4, already designated in the WSURA Plan for low-income public housing, is to be developed under co-sponsorship of NYCHA and the New York City Educational Ccenstructional Fund (ECF). Located on a 40,000 [square foot] parcel on the Columbus Avenue block-front between W.96 and W.97 Streets, the planned redevelopment will include a 640-seat elementary school essential to replace obsolescent facilities in the neighborhood, in addition to 270 units of public housing, for which no application has yet been submitted to HUD. Final architectural drawings have already been prepared by NYCHA and ECF, at considerable expense. HUD assessed the City’s evaluation of alternatives and concluded that they were incomplete: They failed to address the possibilities of combining sites, of repar- celing sites of dividing the 160 units committed to by HUD onto two of the redevelopment sites, or of seeking additional funds to enable HUD to develop fully a com- bination of sites. Additionally, HUD concluded that there are two sites which are even more appropriate for the transfer of the proposed 160 units planned for Site 30. The sites HUD proposes in lieu of Site 30 are Site 9, located on the west blockfront of Columbus Avenue be- tween West 95 and West 96 Streets, and Site 41, lo- cated on the east blockfront of Columbus Avenue be- tween West 88 and West 89 Streets. These sites are roughly comparable in size to Site 30 and their use as alternatives would entail a minimal amount of under- utilization, design change, and site clearance. HUD has ee ie ee ee ee eee i Pe ate OLS en eo tee ae ee > wee eet eet Soo Jr hittin Sali te te Met ie 9 Me 2D 33a some reservations as to the viability of Site 41 as a sub- stitute for Site 30: In view of the extensive response to HUD’s public notice from residents of W.89 Street and the na- ture of their comments about low-income and pub- lic housing, one might suspect that a proposal to transfer the project to their block might be even more strongly opposed, although it appears to be quite a rational decision, within the context of the Plan and its objectives to facilitate an integrated community. Study, p. 53. HUD thoroughly canvasses the persuasive argu- ments for favoring the two alternatives it suggests. However, it recognizes that the City’s reason for op- posing them is valid. The added delay of possibly two years strongly militates against the selection of another site.'® HUD’s observation as to the possibility of re- locating the low-income housing presently designated for Site 30 is well-stated (Study, p. 54): While relocation of the project from Site 30 will certainly reduce the fears and negative perceptions of some WSURA residents, it will certainly in- crease the fears, hostility and opposition of others if Site 41 is chosen as the alternative. The possibil- ity of new litigation should not be discounted, which would add to the delays. The environmental 'SThat is the time estimated by City Housing Authority pro- fessionals as required for completing the approval process (be- fore construction can start). New borings, new foundation plans and perhaps major design changes might be required. In view of the four years already consumed by the instant litigation, an additional two years of delay in meeting the intense need for low-income housing may properly be treated as an unacceptable environmental effect of the transfer to another site. This is especially cogent as the City Housing Authority estimates that once the injunction over Site 30 is lifted, construction can start in six months (Study, p. 53). 34a benefits of transferring the project to Site 41 are considered to be questionable, in view of the ap- parent spatial distribution of Site 30 opponents. Transfer to Site 9 is less likely to generate the ex- tensive community opposition which would add in- estimable time to the mandated delays through re- design and redesignation by appropriate agencies. The environmental benefits of transfer to Site 9 are relatively small and directed at a rather narrow range of beneficiaries (primarily continue and other opponents to Site 30 project). Measured against the environmental costs associated with the minimum two-year delay, the benefits seem insufficient to justify a mandated substitution of sites. HUD next considers alternative designs (e.g., apartment size distribution and size of project). The City is quoted by HUD as opposing either reducing the size of the project on Site 30 or the apartment sizes which will be offered.17 HUD concurs, noting that while the project as presently designed may provide more units than are required by the remaining families to be relocated, there appears to be more then enough re- locatees residing outside WSURA to fill Site 30 (Study, p. 54). Indeed, the project is actually below the zoned development capacity of the site. HUD concludes (Study, p. 54); Further reduction appears unjustified, with no concomitant environmental benefits to be dis- cerned. The objections to reuse of the site for pub- lic housing have centered on the character, rather 1™The City rejects these alternatives on the basis of: com- patibility of planned project with neighboring development; dis- economies of scale caused by project size reductions; the need to adjust the development potential of other sites ‘to conform to the Urban Renewal Plan’, and, decidedly more relevant, be- cause the apartment size distribution provides ‘a range of apartment sizes that would meet the requirements of the re- maining relocation workload.’ ” Study, p. 54. 35a than than [sic] the intensity of use. That character would not be significantly altered if the project were 150 or 120 or 100 units. HUD adopts the City’s proposal that the recreational area of Site 30 be on the southern portion of the site which “not only maximizes its exposure to the sun for the benefit of the residents, but also reduces the amount of plaza and street activity which will occur in the immediate vicinity of the Trinity School.” Study, p. 5A. HUD also considered the possibility of dispersing the low-income units on more sites. While this would re- lieve to a certain extent the concentration of public housing on the West 91st axis mentioned earlier (see Study, p. 40), the environmental detriments are noted. These include little room for outdoor recreational space (though HUD notes this is of little concern as WSURA abounds with such spaces), and scale-related increases in per-unit costs of construction, management and maintenance, which would reduce the number of units the City Housing Authority could afford to build. Fi- nally, HUD notes that dispersal of low-income units may exacerbate the already strained class relations in WSURA (Study, p. 55): [By dispersing low-income units, there is] in- creased potential for inter-group and/or use con- flicts, based on the inability to provide adequate buffer space on small mid-block sites to accommo- date differing life-styles by the various economic sub-communities. HUD reviewed the reasons advanced by the City in rejecting the rehabilitation of existing buildings as an alternative to construction of low-income housing on Site 30. The City, HUD concluded, was in error in stating that federal funding would not be available for 36a rehabilitating tenements.'® Nonetheless, HUD ap- proved the City’s decision not to divert the limited funds available from one category of assistance to “another category (Study, p. 56): [Given the tremendous housing need in New York and the finite nature of resources available .. ., City officials decided not to seek Section 8 funds for rehabilitation within WSURA, despite several op- portunities to do so, in view of higher priority needs elsewhere in the City. This political decision appears justifiable when viewed within the context of urban environmental factors affecting other and needier neighborhoods especially those which do not have the benefit of either private investment or of a Federal commitment for 160 units of low-rent public housing. Furthermore, Section 8 housing, which would disperse low-income families as subsidized tenants in privately owned buildings, has little merit when put to large scale use. Secondly, the level of assistance available under Section 8 is less than the rent charged in most privately owned multi-family housing in WSURA. Consequently, Section 8 is not considered feasible for use in WSURA. Alternative uses for Site 30 were considered by HUD. Included among these were the following poten- tial uses: retail-commercial; office-commercial; public park; public facility; off-street parking. HUD rejected commercial development since “the amount of such space judged to be marketable in this location is far below the development capacity of the site and would cause an unacceptable level of underutilization.” Study, p. 57. Because of the abundance of parks in WSURA (it borders Central Park), converting Site 30 to a park 18Funding, according to HUD, would be available from the federal government under Section 8 of the Housing Assistance Program (Study, p. 56). See Title 42 of U.S. Code, Sections 1437 et seq., 1437f. 37a would be superfluous. As a park, Site 30’s small size (% acre) would invite conflict between those residing on its boundaries and those using it for recreation. Finally, at present, there is only minimal need for an additional public facility in WSURA. This, when combined with the City’s inability to fund capital projects of less than urgent need, rules out that option. Development of Site 30 as “tax-abated” or “full- taxpaying” housing could be accomplished with only a minor plan change. Though HUD questions the feasi- bility of erecting a luxury high-rise on Site 30, HUD finds it possible to use Site 30 for low-density, fully taxpaying modern townhouses. However, weighed against this alternative is the heavy environmental cost of failing to meet the continued deficiency of low-income housing in WSURA. Finally, HUD considers the alternative of no project development on Site 30. This would mean no additional low-income housing in WSURA as the alternatives of different locations, methods and designs were treated by HUD previously. HUD rejects this option (Study, p. 58): A decision for government to abandon the objective of providing decent, safe and sanitary housing for low-income persons in the superior urban environ- ment offered in the West Side Urban Renewal Area, absent the assurance of effective means of sheltering such persons in WSURA in private- market housing, would appear to involve a con- stellation of unacceptable urban environmental im- pacts including potentially, income and racial segregation. The need for clean and safe low-income housing is pressing in New York City. When it is juxtaposed against the scarcity of alternative sites for such housing in WSURA, the no-build option would unquestionably lead to inter-group tension in the neighborhood which would be a potential adverse 38a social environmental impact of greater magnitude than the more limited potential adverse effects of public housing construction on Site 30. Study, p. 59 LEGAL DISCUSSION We find the Clearance and Study submitted by HUD to this Court on April 25, 1977, herein extensively re- viewed, satisfies the mandate of the Second Circuit. HUD has considered reasonable alternatives to the de- velopment of Site 30 as a 100 percent low-income hous- ing project. It has done this exhaustively using its reg- ulations as guidelines. It has considered alternatives against the full spectrum of urban environmental fac- tors as well as against all the factors the Court of Ap- peals listed in its opinion. It is true that in considering alternatives HUD pro- ceeded pursuant to Section 102(2)(C) and not Section 102(2)(D) of NEPA referred to in the mandate of the Court of Appeals in remanding this case back to us.'9 However, this difference is harmless as we do not be- lieve Section 102(2)(D) imposes as intensive or as thor- ough a consideration of alternatives as that mandated by Section 102(2)(C). To infer otherwise would be con- 19Section 102(2) reads in pertinent part as follows: The Congress authorizes and directs that, to the fullest ex- tent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2) all agencies of the Federal Government shall— . . . (C) include in every recommendation or report on propos- als for legislation and other major Federal actions signifi- cantly, affecting the quality of the human environment, a detailed statement by the responsible official on— . . . (iil) alternatives to the proposed action. . . (E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available re- sources. ... 39a trary to the plain structure and intent of Section 102(2). Section 102(2)(D) is applicable if there are unresolved conflicts concerning alternative uses of available re- sources. Trinity v. Romney, 523 F.2d 88, 98 (2d Cir. 1975); New York City v. United States, 337 F.Supp. 150, 159 (E.D.N.Y.1972) (Friendly, J.) Significantly, Section 102(2)(C) is not triggered unless there are pro- posed “major federal actions significantly affecting the quality of the human environment.” Hanley v. Klein- dienst, 471 F.2d 823 (2d Cir. 1972). It therefore follows that Section 102(2)(D) imposes upon a federal agency the more routine duty of studying, developing and de- scribing alternatives to contemplated actions of the fed- eral government. See 40 C.F.R. §§1500.6, 1500.8 (1976). While both Sections 102(2)(D) and 102(2)(C) im- plement the Congressional intent behind NEPA “[to require] all federal agencies to consider values of en- vironmental preservation in their spheres of activ- ity,’ Calvert Cliffs’ Coordinating Committee v. United States Atomic Energy Commission, 146 U.S. App.D.C. 33, 35, 449 F.2d 1109, 1111 (1971), the degree of scrutiny necessitated by Section 102(2)(D) is not as in- tensive or as far-ranging as that under 102(2)(C). Though plaintiffs knew a few days after October 14, 1975, that HUD was definitely proceeding under Sec- tion 102(2)(C) (see oral argument of Eugene Morris, Esq., Official Minutes, October 26, 1977, at p. 40), they apparently were not deeply troubled by this as they failed to formally move this Court for an order requir- ing HUD to proceed differently. Instead, they were content with writing a letter to the Area Office of HUD to note this discrepancy. If plaintiffs believed then, as they fervently insist now, that HUD’s departure from the mandate of the Second Circuit was so material as to utterly negate the purpose of NEPA, they were obli- gated to promptly bring this matter to our attention. There is no dispute that we had continuing jurisdiction; we could have resolved this problem back then with far less inconvenience and burden upon the litigants and 40a the general public (who, it cannot be denied, have an interest in the prompt resolution of this litigation) than we can at this late date. Notwithstanding, we have examined the merits of plaintiffs’ claim. We conclude as we have already stated, that HUD’s deviation from the mandate of the Second Circuit was harmless and incon- sequential. Even were Section 102(2)(D) to be interpreted as re- quiring the federal agency to make as rigorous and de- tailed an evaluation as that required by Section 102(2)(C), we would find that the Clearance submitted by HUD clearly meets that test—actually exceeds it. See Monroe County v. Volpe, 472 F.2d 633, 697 (2d Cir. 1972); Environmental Defense Fund, Inc. v. Corps of Engineers, 492 F.2d 1123, 1134 (5th Cir. 1974). Very recently, our Circuit had oceasion to set forth the criteria to be employed in reviewing an Environmental Impact Statement prepared pursuant to Section 102(2)(C): [In deciding whether an EIS contains] sufficient information to satisfy Section 102(2)(C) of NEPA . a court is governed by the “rule of reason,” under which an EIS need not be exhaustive to the point of discussing all possible details bearing on the proposed action but will be upheld as adequate if it has been compiled in good faith and sets forth sufficient information to enable the decisionmaker to consider fully the environmental factors involved and to make a reasoned decision after balancing the risks of harm to the environment against the bene- fits to be derived from the proposed action, as well as to make a reasoned choice between alternatives. County of Suffolk v. Secretary of the Interior, Nos. 1187, 1258, 562 F.2d 1368 at 1375 (2d Cir. 1977) (citations omitted). Thus, as we noted at the inception of this decision, a federal agency cannot satisfy Section 102(2)(C) by a conclusory, superficial consideration of alternatives. The agency must go beyond mere assertions and indi- 4la cate its basis for them. 1-291 Why? Association v. Burns, 372 F.Supp. 223 (D.Conn.1974), aff'd per curiam, 517 F.2d 1077 (2d Cir. 1975). In reviewing the Clearance now before us, it is well to remember that the aim of NEPA was not to abolish economic or technical progress but to have federal agencies balance environmental concerns against the material gains of “progress.” NEPA requires these agencies to incorporate into their decision-making proc- ess a systematic consideration and balancing of these possibly diverse goals. Calvert Cliffs, supra, 146 U.S. Appd.D.C. at 36, 449 F.2d at 1112. Furthermore, in remanding the instant case back to us, the Second Cir- cuit clearly enunciated that the solution to unbalanced housing of which plaintiffs complain is not for the courts but for the agencies. Trinity, supra, 523 F.2d at 95. In reviewing the adequacy of HUD’s consideration of al- ternatives, we have been mindful of these constraints and have endeavored to avoid substituting what we may prefer for what the duly authorized agencies have resolved for Site 30 after good faith deliberation. We find the consideration by Clearance of alterna- tives a very illuminating and factual discussion of all appropriate options to construction of 100 percent low-income housing on Site 30. Indeed, it would be on the merits to describe it as an exhaustive study. We find that HUD discharged its duty to examine alterna- tives with good faith objectivity. HUD did not generate a mountain of paper to rationalize a prejudgment to which it had committed itself. In judging whether HUD acted in good faith, we cannot apply the requirements of NEPA retroactively Environmental Defense Fund, Inc. v. Corps of En- gineers, 492 F.2d 1123, 1129 (5th Cir. 1974). Thus, HUD was obligated to consider as relevant factors the present condition of Site 30 as well as the several years it will take to prepare possible alternative sites. In re- viewing HUD’s weighing of the advantages and disad- vantages of the appropriate alternatives, we will not 42a turn the clock back and compel the agency to disregard present realities or require HUD to pivot its decision on facts that no longer exist New York City v. United States, supra, at 163. As we stated earlier, we are not going to “second guess” HUD as to the substantive merits or demerits of a particular alternative. Those decisions are, by Congress, committed to the good faith decision of the agency. Hanley v. Mitchell, 460 F.2d 640, 643 (2d Cir. 1972); Converned About Trident v. Schlesinger, 400 F.Supp. 454, 480 (D.Wash. 1975); En- vironmental Defense Fund v. Froehlke, 473 F.2d 346, 353 (8th Cir. 1972). The wisdom of low-income housing, its siting in WSURA, its design, or finally the decision, after a good faith consideration by HUD of alternatives pursuant to Section 102(2)(D) of NEPA, to locate it on Site 30 are not before us for review. The umited issue before us is whether the mandate of the Court of Ap- peals has been satisfied—has HUD fulfilled its obliga- tions under Section 102(2)(D). Trinity, supra, 523 F.2d at 95. Consequently, our focus in reviewing the Clearance is on the process HUD employed in arriving at the conclu- sions which formed the basis of its decision to construct low-income housing on Site 30 rather than on another appropriate site. The issue, therefore, is whether HUD’s decision was made in good faith or whether it was arbitrary, capricious, or otherwise not in accord- ance with the law. Concerned About Trident, supra, at 481. We find that HUD’s consideration of alternatives was neither arbitrary nor capricious. It was done in good faith and in full accordance with the law. See Section 706(2)(A) of the Administrative Procedure Act; Citi- zens to Preserve Overton Park v. Volpe, 401 U.S. 402, 413-416, 91 S.Ct 814, 28 L.Ed.2d 136 (1971). HUD’s decision was based upon a consideration of all relevant factors, to wit, site selection and design, density, dis- placement and relocation of residents, quality of the built environment, impact of the environment on the a OT ee ont. 43a current residents and their activities, decay and blight, implications for the city growth policy, traffic and parking noise, neighborhood stability, and the existence of services and commercial enterprises to service the new residents. Trinity, supra, 523 F.2d at 93. HUD weighed the technical and economic advantages and disadvantages of building or not building on Site 30 together with the environmental costs and benefits flowing therefrom. HUD gave careful and detailed at- tention to all the environmental factors contemplated as relevant under NEPA. The agency is not expected to arrive at a perfect solution of all environmental conse- quences of a proposed Federal project. County of Suf- folk, supra. at 1378; Natural Resources Defense Council v. Callaway, 524 F.2d 79, 88 (2d Cir. 1975). We cannot disturb HUD’s finding or rejection of alter- natives as long as HUD’s choice among them was rea- soned. County of Suffolk, supra, at 1387. Only by a preponderance of the evidence can plain- tiffs establish their claim that the considreation by HUD of alternatives was inadequate; a prima facie showing of deficiencies will not suffice. Sierra Club v. Morton, 510 F.2d 818, 818 (5th Cir. 1975); Sierra Club v. Callaway, 499 F.2d 982, 992 (5th Cir. 1974); En- vironmental Defense Fund, Inc., supra, at 1131. Plaintiffs offer no feasible alternative to construction of low-income housing on Site 30 in WSURA which will lessen the environmental impact while providing the type and quantity of housing so urgently needed. We sympathize with plaintiffs’ professed fear of crime. However, plaintiffs fail to causally link crime with the presence of low-income housing. It is beyond this Court’s ken to single out the reason or reasons for the sustained increase in the crime rate in WSURA: over the past decade; it is apparent that soaring crime rates are not confined to the urban ghettos but, sorrowfully, afflict many areas of this country where there is no 44a low-income housing.?° Thus, we cannot accept the pro- position that the people who dwell within low-income housing bring about crime to a greater degree than do those making up other strata of society. Yet, even were plaintiffs’ theory considered valid, we do not see how shifting low-income housing around the 20 block area of WSURA would significantly reduce the crime plaintiffs fear. Alternatives which result in simi- lar or greater harm need not be considered. Sierra Club v. Morton, supra, at 825. Furthermore, plaintiffs are decidely wrong when they assert that HUD omitted from its Clearance all information contrary to the desirability of adding an additional 160 units of low-income housing (Affidavit of Eugene J. Morris sworn to October 24, 1977, at p. 15). : HUD fully analyzed the public comment it received, | both adverse and favorable, to proceeding with con- struction on Site 30. HUD was open and frank in reve- aling all the drawbacks to going ahead with low-income housing on Site 30. Plaintiffs have not brought to our attention any negative factor not considered by HUD. The plaintiffs fail to see, or will not see, that these drawbacks are not peculiar to Site 30 but are common to WSURA and possibly to the siting of low-income housing anywhere in New York City, with the possible exception of limited areas in Staten Island or Brooklyn. Plaintiffs do not set forth substantive or dependable al- ternatives to show HUD’s failure to consider alterna- tives; we consequently reject plaintiffs’ argument to i i Se i i ee Pe 2°The 1976 Statistical Abstract of the United States, pub- lished by the Bureau of the Census, U.S. Department of Com- merce, states that for cities with populations of under 10,000, the annual percent change of rates for violent crime is as fol- lows: 1965 to 1969 1970 to 1974 1974 to 1975 7.9 11.8 6.3 In cities with populations of 250,000 or more, the percent change for the comparable period is 20.5, 3.3, and 4.6. SE ee a ee | 45a that end. Upper West Fork v. Corps of Engineers, 414 F.Supp. 908, 922 (N.D.W.Va.1976). HUD was not required to hold public hearings prior to preparing the Clearance in which it evaluated the several alternatives to construction on Site 30. In re- manding this case back to us, the Second Circuit did not specify that a public hearing would be required under HUD’s obligation to consider alternatives pursuant to Section 102(2)(D) of NEPA. It goes without saying that we would have held one if it had been warranted. The Council on Environmental Quality, the federal agency charged with appraising programs and activities of the federal government in light of NEPA, Section 4342 of Title 42, U.S. Code, has set forth criteria for deter- mining whether a public hearing is app [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0675%3A1. Public record. Not legal advice.