ELR Citation: ELR 20963
No(s). 82-5656 (3d Cir. Jul 29, 1983)

The Third Circuit affirms an order enjoining demolition of an historic building until the Department of Housing and Urban Development (HUD) complies with the National Environmental Policy Act (NEPA) and §106 of the National Historic Preservation Act (NHPA). Appellants contended that NEPA did not apply to the demolition activity because it was part of an urban renewal project that had received HUD planning and funding approval prior to the passage of NEPA. The court rules that the statutory language and purpose of NEPA and regulations of the Council on Environmental Quality indicate that the continuing involvement of a federal agency in a federally assisted project constitutes a "major Federal action" requiring an environmental review. The court holds HUD was continually involved in the urban renewal project because the parties agreed by a loan and grant contract, in effect from 1969 to 1980, that the local agency would submit data to HUD on all proposed actions and HUD could object and refuse requested payment.

The court next holds that HUD erred in not complying with the historic review requirements of the NHPA.The court rules that the NHPA applies at every stage at which a federal agency retains authority to approve funds for and review federally assisted projects affecting historic properties. This interpretation of the NHPA is supported by its stated purpose and regulations of the Advisory Council on Historic Preservation. The court finds that the building was eligible for inclusion in the National Register of Historic Places beginning in 1976, even though it was not placed on the register until 1982. It also finds that HUD had opportunities to demand alterations in the urban renewal plan between 1976 and 1980 and, therefore, could have conducted an historical resource review during that period.

Counsel for Appellants
Peter R. Steenland Jr., Martin Green
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2748

Lorraine S. Gerson, Ass't U.S. Attorney
502 Fed. Bldg., 970 Broad St., Newark NJ 07102
(201) 645-2155

Counsel for Appellees
Mark L. First
Jamieson, McCardell, Moore, Peskin & Spicer
19 Chancery Lane, Trenton NJ 08618
(609) 396-5511

Before SEITZ, Chief Judge, SLOVITER, Circuit Judge, and POLLAK, District Judge.^*