ELR Citation: ELR 20745
No(s). 93-1286 PLF (D.D.C. Dec 9, 1994)

The court holds that the U.S. Park Service violated the National Environmental Policy Act (NEPA) by failing to prepare an environmental assessment (EA) or environmental impact statement (EIS) for its transfer of jurisdiction over portions of Anacostia National Park to the District of Columbia to facilitate development of a theme park. The court first holds that the matter is ripe for decision. The record of decision and official transfer of jurisdiction plat demonstrate that the Park Service's decision to transfer jurisdiction was a final agency action. Further, the environmental groups challenging the transfer have shown that the Park Service's failure to make a properly informed decision in compliance with NEPA has harmed them. The transfer means that the protective rules governing the Park Service's management of Anacostia National Park no longer apply to the transferred areas, the transfer facilitated and authorized potentially intrusive development, and it forecloses the groups' proposed alternative use for the land.

The court next holds that because the undisputed facts cannot support the assertion that the transfer of jurisdiction had no significant environmental impact or was a mere paper transaction that did not change the status quo, it cannot conclude that the Park Service acted reasonably in preparing neither an EIS nor an EA. NEPA and its regulations unambiguously require the preparation of either an EIS or an EA, followed by either a finding of no significant impact (FONSI) or an EIS, for all major federal actions that are not categorically excluded. Any assertions that there are no significant impacts must be made in an EA and a FONSI after a preliminary environmental inquiry, not to a court after suit is filed. The court further holds that it would not have been premature for the Park Service to comply with NEPA at the time of the transfer. Although development plans and their potential environmental effects will be more certain later, the role of the Park Service will be strictly limited, if not nonexistent, at that time. Because there will be no subsequent Park Service decision for future NEPA analysis to inform, the time for the Park Service to have advised itself and the public of the environmental effects of and alternatives to its decision to transfer jurisdiction was at the time of transfer.

The court next holds that the EA and FONSI that the federal National Capital Planning Commission (NCPC) prepared regarding the transfer do not satisfy the Park Service's obligations under NEPA. NEPA requires the Park Service to take its own hard look at the potential effects that the transfer may have on the environment by conducting an EA or preparing an EIS, especially since it has retained no authority over future activity that might effect the environment. Also, the National Capital Planning Act does not allow the Park Service to delegate or defer its NEPA responsibilities to the NCPC. Further, there is no clearconflict between NEPA and the National Capital Planning Act that would exempt the project from NEPA compliance, it would have said so in the statute. The court next holds that the Park Service failed to properly adopt the NCPC's EA. There is no evidence that the Park Service deferred to the NCPC or delegated its NEPA responsibilities to the NCPC or to any other agency in advance of its own final agency action to transfer. Nor did it observe the procedures NEPA requires to permit it to rely on the NCPC's EA and FONSI, nor did it in fact rely on the NCPC's documents regarding its EA. The court therefore holds that the Park Service may not justify, post hoc, its decision not to prepare its own EA or EIS on the basis of the NCPC's preparation of an EA and FONSI in the past or on the basis of the NCPC's anticipated preparation of an EA or EIS as development plans become more specific.

The court next holds that it cannot conclude that the Park Service is required to prepare an EIS, as opposed to an EA, at this time. Without an EA and FONSI prepared by the Park Service that provides its reasons for forgoing preparation of an EIS, it would be premature for the court to require the Park Service to prepare an EIS. The court holds that the Park Service must at a minimum prepare an EA, and based on the EA, either prepare a FONSI or, if it finds that the transfer may significantly affect the environment, an EIS. The court also holds, however, that at this late date the Park Service may not invoke a categorical exclusion or adopt the NCPC's EA or FONSI.

Counsel for Plaintiffs
Howard I. Fox, Fern L. Shepard
Sierra Club Legal Defense Fund
1531 P St. NW, Washington DC 20005
(202) 667-4500

Counsel for Defendants
Daniel Van Horn, Ass't U.S. Attorney
U.S. Attorney's Office
555 4th St. NW, Washington DC 20001
(202) 514-7168