ELR Citation: ELR 20170
No(s). s. 82-6175 et al (2d Cir. Dec 3, 1982)

The court reverses the district court's grant of a permanent injunction blocking the Federal Highway Administration (FHwA) from reimbursing New York State for the cost of acquiring the right-of-way for the Westway highway project. The court first rules that the lower court erred in finding that payment of federal funds by FHwA would cause irreparable harm. The payment is not irrevocable and therefore will not bias the federal and state agencies' consideration of whether or not to adopt the Westway highway project. In addition, because the state has already acquired the city of New York's property and its obligation to pay the city is irrevocable, it is more likely that nonpayment by FHwA will create a bias in favor of the project.

The court next rejects appellees' argument that their likelihood of success in proving a violation of the National Environmental Policy Act (NEPA) requires issuance of the injunction. Even after a NEPA violation is established, whether to issue an injunction remains within the court's discretion. Injunctive relief may only be granted upon a showing of irreparable injury and the absence of a remedy a law. But since appellees failed to demonstrate irreparable injury, they are not entitled to injunctive relief despite the FHwA's violation of NEPA. Finally, the court rules that the district judge abused his discretion in failing to balance the equities affected by the injunction. Where public consequences are implicated, the judge must conduct such a balancing. The city and state will suffer substantial financial harm as a result of the district court's ruling, which outweighs the negligible harm suffered by appellees.

Counsel for Appellants
Nicholas Gimbel, Ass't U.S. Attorney
One St. Andrews Plaza, New York NY 10007
(212) 791-1973

Milton S. Gould
Shea & Gould
330 Madison Ave., New York NY 10017
(212) 370-8000

Gary H. Baise, Jonathan Z. Cannon, Charles A. Patrizia
Beveridge & Diamond
1333 New Hampshire Ave, NW, Washington DC 20036
(202) 282-0200

Counsel for Intervenor-Appellant
%john C. Brenner, Leonard Korner, Ass't Corp. Counsels
100 Church St., New York NY 10007
(212) 566-0376

Counsel for Appellees
Alfred K. Butzel
Berle, Butzel, Kass & Case
45 Rockefeller Ctr., New York NY 10111
(212) 765-1800

Joined by Oakes and Kearse, JJ.