U.S. Supreme Court Strycker's Bay Neighborhood Council v.
Karlen, 444
U.S. 223 (1980) Strycker's Bay Neighborhood Council,
Inc. v. Karlen No. 79-168 Decided January 7, 1980 444
U.S. 223 ast|>* 444
U.S. 223 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT Syllabus Held: The Court of Appeals erred in concluding that,
when the Department of Housing and Urban Development (HUD)
considered alternative sites before redesignating a proposed site
for middle-income housing as one for low-income housing it should
have given determinative weight to environmental factors such as
crowding low-income housing into a concentrated area and should not
have considered the delay that would occur in developing an
alternative site as an overriding factor. Once an agency has made a
decision subject to the procedural requirements of the National
Environmental Policy Act of 1969, the only role for a court is to
insure that the agency has considered the environmental
consequences; it cannot interject itself within the area of
discretion of the executive as to the choice of the action to be
taken. Here, there is no doubt that HUD considered the
environmental consequences of its decision to redesignate the
proposed site for low-income housing, and the Act requires no
more.

															Certiorari granted; 590 F.2d 39, reversed.

															PER CURIAM.

															The protracted nature of this litigation is perhaps best
illustrated by the identity of the original federal defendant,
"George Romney, Secretary of the Department of Housing and Urban
Development." At the center of this dispute is the site of a
proposed low-income housing project to be constructed on
Manhattan's Upper West Side. In 1962, the New York City Planning
Commission (Commission), acting in conjunction with the United
States Department of Housing and Urban Development (HUD), began
formulating a Page 444 U. S. 224 plan for the renewal of 20 square blocks known as the "West Side
Urban Renewal Area" (WSURA) through a joint effort on the part of
private parties and various government agencies. As originally
written, the plan called for a mix of 70% middle-income housing and
30% low-income housing and designated the site at issue here as the
location of one of the middle-income projects. In 1969, after
substantial progress toward completion of the plan, local agencies
in New York determined that the number of low-income units proposed
for WSURA would be insufficient to satisfy an increased need for
such units. In response to this shortage, the Commission amended
the plan to designate the site as the future location of a
high-rise building containing 160 units of low-income housing. HUD
approved this amendment in December, 1972.

															Meanwhile, in October, 1971, the Trinity Episcopal School Corp.
(Trinity), which had participated in the plan by building a
combination school and middle-income housing development at a
nearby location, sued in the United States District Court for the
Southern District of New York to enjoin the Commission and HUD from
constructing low-income housing on the site. The present
respondents, Roland N. Karlen, Alvin C. Hudgins, and the Committee
of Neighbors To Insure a Normal Urban Environment (CONTINUE),
intervened as plaintiffs, while petitioner Strycker's Bay
Neighborhood Council, Inc., intervened as a defendant.

															The District Court entered judgment in favor of petitioners. See Trinity Episcopal School Corp. v.
Romney, 387 F.
Supp. 1044 (1974). It concluded, inter alia, that
petitioners had not violated the National Environmental Policy Act
of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq. On respondents' appeal, the Second Circuit affirmed all but the
District Court's treatment of the NEPA claim. See Trinity
Episcopal School Corp. v. Romney, 523 F.2d 88 Page 444 U. S. 225 (1975). While the Court of Appeals agreed with the District
Court that HUD was not required to prepare a full-scale
environmental impact statement under § 102(2)(C) of NEPA, 42 U.S.C.
§ 4332(2)(C), it held hat HUD had not complied with § 102(2)(E),
[ Footnote 1 ] which requires an
agency 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."

															42 U.S.C. § 4332(2)(E). See 523 F.2d at 995. According
to the Court of Appeals, any consideration by HUD of alternatives
to placing low-income housing on the site "was either highly
limited or nonexistent." Id. at 94. Citing the "background
of urban environmental factors" behind HUD's decision, the Court of
Appeals remanded the case, requiring HUD to prepare a "statement of
possible alternatives, the consequences thereof and the facts and
reasons for and against. . . ." Ibid. The statement was
not to reflect "HUD's concept or the Housing Authority's views as
to how these agencies would choose to resolve the city's low income
group housing situation," but rather was to explain

															"how, within the framework of the Plan, its objective of
economic integration can best be achieved with a minimum of adverse
environmental impact." Ibid. The Court of Appeals believed that, given such an
assessment of alternatives, "the agencies with the cooperation of
the interested parties should be able to arrive at an equitable
solution." Id. at 95.

															On remand, HUD prepared a lengthy report entitled Special
Environmental Clearance (1977). After marshaling the data, the
report asserted that,

															"while the choice of Site 30 for development as a 100 percent
low-income project has raised Page 444 U. S. 226 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."

															Special Environmental Clearance Report 42. The last portion of
the report incorporated a study wherein the Commission evaluated
nine alternative locations for the project, and found none of them
acceptable. While HUD's report conceded that this study may not
have considered all possible alternatives, it credited the
Commission's conclusion that any relocation of the units would
entail an unacceptable delay of two years or more. According to
HUD,

															"[m]easured against the environmental costs associated with the
minimum two-year delay, the benefits seem insufficient to justify a
mandated substitution of sites." Id. at 54.

															After soliciting the parties' comments on HUD's report, the
District Court again entered judgment in favor of petitioners. See Trinity Episcopal School Corp. v.
Harris, 445 F.
Supp. 204 (1978). The court was "impressed with HUD's analysis
as being thorough and exhaustive," id. at 209-210, and
found that "HUD's consideration of the alternatives was neither
arbitrary nor capricious"; on the contrary, "[i]t was done in good
faith and in full accordance with the law." Id. at
220.

															On appal, the Second Circuit vacated and remanded again. Karlen v. Harris, 590 F.2d 39 (1978). The appellate court
focused upon that part of HUD's report where the agency considered
and rejected alternative sites, and in particular upon HUD's
reliance on the delay such a relocation would entail. The Court of
Appeals purported to recognize that its role in reviewing HUD's
decision was defined by the Administrative Procedure Act (APA), 5
U.S.C. § 706(2)(A), which provides that agency actions should be
set aside if found to be "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law. . . ."
Additionally, Page 444 U. S. 227 however, the Court of Appeals looked to "[t]he provisions of
NEPA" for "the substantive standards necessary to review the merits
of agency decisions. . . ." 590 F.2d at 43. The Court of Appeals
conceded that HUD had "given consideration' to alternatives" to
redesignating the site. Id. at 44. Nevertheless, the court
believed that "`consideration' is not an end in itself." Ibid. Concentrating on HUD's finding that development of
an alternative location would entail an unacceptable delay, the
appellate court held that such delay could not be "an overriding
factor" in HUD's decision to proceed with the development. Ibid. According to the court, when HUD considers such
projects, "environmental factors, such as crowding low-income
housing into a concentrated area, should be given determinative
weight." Ibid. The Court of Appeals therefore remanded the
case to the District Court, instructing HUD to attack the shortage
of low-income housing in a manner that would avoid the
"concentration" of such housing on Site 30. Id. at 45. In Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.
S. 519 , 435 U. S. 558 (1978), we stated that NEPA, while establishing "significant
substantive goals for the Nation," imposes upon agencies duties
that are "essentially procedural." As we stressed in that case,
NEPA was designed "to insure a fully informed and well considered
decision," but not necessarily "a decision the judges of the Court
of Appeals or of this Court would have reached had they been
members of the decisionmaking unit of the agency." Ibid. Vermont Yankee cuts sharply against the Court of Appeals'
conclusion that an agency, in selecting a course of action, must
elevate environmental concerns over other appropriate
considerations. On the contrary, once an agency has made a decision
subject to NEPA's procedural requirements, the only role for a
court is to insure that the agency has considered the environmental
consequences; it cannot " 'interject itself within the area of
discretion of the executive as to the choice of the action
to Page 444 U. S. 228 be taken.'" Kleppe v. Sierra Club, 427 U.
S. 390 , 427 U. S. 410 ,
n. 21 (1976). See also FPC v. Transcontinental Gas Pipe Line
Corp., 423 U. S. 326 (1976). [ Footnote 2 ]

															In the present litigation, there is no doubt that HUD considered
the environmental consequences of its decision to redesignate the
proposed site for low-income housing. NEPA requires no more. The
petitions for certiorari are granted, and the judgment of the Court
of Appeals is therefore Reversed. * Together with No. 79-181, City of New York v. Karlen et
al.; and No. 79-184, Secretary of Housing and Urban
Development v. Karlen et al., also on petitions for certiorari
to the same court.

															[ Footnote 1 ]

															At the time of the Court of Appeals' decision, this section was
numbered 102(2)(D) and was codified at 42 U.S.C. § 4332(2)(D) (1970
ed.). Congress redesignated it two weeks later. See Act of
Aug. 9, 1975, Pub.L. 94-83, 89 Stat. 424.

															[ Footnote 2 ]

															If we could agree with the dissent that the Court of Appeals
held that HUD had acted "arbitrarily" in redesignating the site for
low-income housing, we might also agree that plenary review is
warranted. But the District Court expressly concluded that HUD had
not acted arbitrarily or capriciously, and our reading of the
opinion of the Court of Appeals satisfies us that it did not
overturn that finding. Instead, the appellate court required HUD to
elevate environmental concerns over other, admittedly legitimate,
considerations. Neither NEPA nor the APA provides any support for
such a reordering of priorities by a reviewing court.

															MR. JUSTICE MARSHALL, dissenting.

															The issue raised by these cases is far more difficult than the
per curiam opinion suggests. The Court of Appeals held that the
Secretary of Housing and Urban Development (HUD) had acted
arbitrarily in concluding that prevention of a delay in the
construction process justified the selection of a housing site
which could produce adverse social environmental effects, including
racial and economic concentration. Today the majority responds
that,

															"once an agency has made a decision subject to NEPA's procedural
requirements, the only role for a court is to insure that the
agency has considered the environmental consequences,"

															and that, in this litigation,

															"there is no doubt that HUD considered the environmental
consequences of its decision to redesignate the proposed site for
low-income housing. NEPA requires no more."

															The majority finds support for this conclusion in the closing
paragraph Page 444 U. S. 229 of our decision in Vermont Yankee Nuclear Power Corp. v.
NRDC, 435 U. S. 519 , 435 U. S. 558 (1978). Vermont Yankee does not stand for the broad proposition
that the majority advances today. The relevant passage in that
opinion was meant to be only a "further observation of some
relevance to this case," id. at 435 U. S. 557 .
That "observation" was a response to this Court's perception that
the Court of Appeals in that case was attempting, "under the guise
of judicial review of agency action," to assert its own policy
judgment as to the desirability of developing nuclear energy as an
energy source for this Nation, a judgment which is properly left to
Congress. Id. at 435 U. S. 558 .
The Court of Appeals had remanded the case to the agency because of
"a single alleged oversight on a peripheral issue, urged by parties
who never fully cooperated or indeed raised the issue below," ibid. It was in this context that the Court remarked that
"NEPA does set forth significant substantive goals for the Nation,
but its mandate to the agencies is essentially procedural." Ibid. (emphasis supplied). Accordingly,

															"[a]dministrative decisions should be set aside in this context, as in every other, only for substantial procedural or
substantive reasons as mandated by statute," ibid. (emphasis supplied). Thus, Vermont
Yankee does not stand for the proposition that a court
reviewing agency action under NEPA is limited solely to the factual
issue of whether the agency "considered" environmental
consequences. The agency's decision must still be set aside if it
is "arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law," 5 U.S.C. § 706(2)(A), and the reviewing
court must still insure that the agency "has taken a hard look'
at environmental consequences," Kleppe v. Sierra Club, 427 U. S. 390 , 427 U. S. 410 ,
n. 21 (1976). In the present case, the Court of Appeals did not "substitute
its judgment for that of the agency as to the environmental
consequences of its actions," ibid., for HUD, in its Page 444 U. S. 230 Special Environmental Clearance Report, acknowledged the adverse
environmental consequences of its proposed action:

															"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."

															These valid questions arise from the fact that 68% of all public
housing units would be sited on only one cross-town axis in this
area of New York City. As the Court of Appeals observed, the
resulting high concentration of low-income housing would hardly
further racial and economic integration. The environmental "impact
. . . on social fabric and community structures" was given a B
rating in the report, indicating that, from this perspective, the
project is "questionable" and ameliorative measures are "mandated."
The report lists 10 ameliorative measures necessary to make the
project acceptable. The report also discusses two alternatives,
Sites 9 and 41, both of which are the appropriate size for the
project and require "only minimal" amounts of relocation and
clearance. Concerning Site 9, the report explicitly concludes that
"[f]rom the standpoint of social environmental impact, this
location would be superior to Site 30 for the development of
low-rent public housing." The sole reason for rejecting the
environmentally superior site was the fact that, if the location
were shifted to Site 9, there would be a projected delay of two
years in the construction of the housing.

															The issue before the Court of Appeals, therefore, was whether
HUD was free under NEPA to reject an alternative acknowledged to be
environmentally preferable solely on the ground that any change in
sites would cause delay. This was hardly a "peripheral issue" in
the case. Whether NEPA, which sets forth "significant substantive
goals," Vermont Yankee Nuclear Power Corp. v. NRDC, supra at 435 U. S. 558 ,
permits a projected 2-year time difference to be controlling over
environmental superiority is by no means clear. Resolution of the
issue, however, is certainly within the normal scope of review of
agency action to determine if it is arbitrary, Page 444 U. S. 231 capricious, or an abuse of discretion.* The question whether HUD
can make delay the paramount concern over environmental superiority
is essentially a restatement of the question whether HUD in
considering the environmental consequences of its proposed action
gave those consequences a "hard look," which is exactly the proper
question for the reviewing court to ask. Kleppe v. Sierra Club,
supra at 427 U. S. 410 ,
n. 21.

															The issue of whether the Secretary's decision was arbitrary or
capricious is sufficiently difficult and important to merit plenary
consideration in this Court. Further, I do not subscribe to the
Court's apparent suggestion that Vermont Yankee limits the
reviewing court to the essentially mindless task of determining
whether an agency "considered" environmental factors even if that
agency may have effectively decided to ignore those factors in
reaching its conclusion. Indeed, I cannot believe that the Court
would adhere to that position in a different factual setting. Our
cases establish that the "arbitrary or capricious" standard
prescribes a "searching and careful" judicial inquiry designed to
ensure that the agency has not exercised its discretion in an
unreasonable manner. Citizens To Preserve Overton Park, Inc. v.
Volpe, 401 U. S. 402 , 401 U. S. 416 (1971). Believing that today's summary reversal represents a
departure from that principle, I respectfully dissent.

															It is apparent to me that this is not the type of case for a
summary disposition. We should at least have a plenary hearing.

															* The Secretary concedes that, if an agency gave little or no
weight to environmental values, its decision might be arbitrary or
capricious. Pet. for Cert. in No. 7184, p. 15, n. 16.

Summary:
The Supreme Court reversed a Court of Appeals decision that ruled in favor of the Strycker's Bay Neighborhood Council, who opposed the construction of low-income housing on the Upper West Side of Manhattan. The National Environmental Policy Act of 1969 (NEPA) was cited by the Council as a reason to block the project, arguing that the Department of Housing and Urban Development (HUD) did not adequately consider alternative sites and the environmental impact of the project.

The Supreme Court held that the Court of Appeals overstepped its role, which is limited to ensuring that agencies have considered environmental consequences, and that it cannot dictate the choice of action to be taken. The Court found that HUD had indeed considered the environmental consequences of its decision and that NEPA requires no more than that. The Court also noted the protracted nature of the litigation, which began in 1971, and the changing circumstances and needs of the community over time.