National Post Office Collaborate et al v. Donahoe et al

Filing 138

ORDER; Defendants' Motion 119 for Summary Judgment and Motion 127 to Strike are GRANTED; the Collaborate's Motion 111 for Summary Judgment is DENIED. The previously entered Preliminary Injunction 52 is dissolved and the Clerk is directed to close this case. Signed by Judge Janet Bond Arterton on 11/26/2014. (Morril, Gregory)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
NATIONAL POST OFFICE COLLABORATE, et al.,
Plaintiffs,
v.
PATRICK R. DONAHOE, et al.,
Defendants.

Civil No. 3:13cv1406 (JBA)

November 26, 2014

RULING ON MOTIONS FOR SUMMARY JUDGMENT
Defendants, the United States Postal Service (“USPS”) and its Postmaster General,
and Plaintiff the National Post Office Collaborate (the “Collaborate”) have cross moved
[Doc. ## 111, 119] for summary judgment on Plaintiffs’ complaint alleging violations of
the National Environmental Policy Act (“NEPA”) and the National Historic Preservation
Act (“NHPA”). For the reasons that follow, Defendants’ Motion for Summary Judgment
is granted and Plaintiff’s is denied.
I.

Background
Plaintiffs National Post Office Collaborate (“the Collaborate”), Center for Art and

Mindfulness (CAM), and Kaysay Abrha, filed [Doc. # 1] suit on September 25, 2013,
challenging the Postal Service’s sale of the United States Post Office located at 421
Atlantic Street in Stamford, Connecticut (the “Atlantic Street Station”). On October 28,
2013, the Court preliminarily enjoined USPS “from selling or otherwise conveying title to
the Atlantic Street Station pending further order of the Court,” concluding that Plaintiffs
had demonstrated a likelihood of success on the merits of their NEPA claim. (Ruling
[Doc. # 52] Granting Pls.’ Mot. for Prelim. Inj. (the “PI Ruling”) at 39.) That injunction
remains in effect. Two counts remain in Plaintiffs’ Second Amended Complaint. Count

One alleges a violation of NEPA. (2d Am. Compl. ¶¶ 76–93.) Count Two alleges a
violation of NHPA Section 106.1
The Atlantic Street Station, constructed in 1916, is a historic building that in 1985
was listed by the United States Department of the Interior on the National Register of
Historic Places. (National Register of Historic Places Inventory—Nomination Form
(“Nomination Form”) at AR0000662.) The Nomination Form describes its AmericanItalianate architecture as representing an unusual style choice for a New England post
office, and it appears to be one of the last post offices individually designed before the
government adopted a policy in 1915 to save money by standardizing the construction
planning, and producing similar post offices in many communities. (Id. at AR000068.)
The Atlantic Street station is set on a pink granite base, “one monumental story
[in] height” and constructed with steel framing and buff-colored masonry and trimmed
in off-white cast terra cotta ornament with bright colored accents. The main façades are
broken up into bay with each containing a “monumental arched bronze window” with
terra cotta ornaments. The roof is hipped red clay and sits atop a dark brown bracketed
wood projecting eave. (Id.) A raised entrance plaza with monumental granite steps and
balustrades leads to a landscaped terrace enclosed on two sides by the projecting wings of
the structure. The plaza “features two symmetrically placed bronze and white glass

1

On September 12, 2014, the Court granted [Doc. # 129] Defendants’ Motion to
Dismiss Counts Three and Four, alleging a violation of the public trust doctrine and 39
U.S.C. § 403(c) in deciding to sell the property to Cappelli rather than Plaintiff CAM.
2

Citations to “AR” refer to the administrative record, which was manually filed
with the Court. (See Notice of Filing of Admin. Record [Doc. # 99].)
2

lantern-type light fixtures of monumental scale as well as unusual and interesting
plantings.” (Id.)
The interior lobby runs the width of the terrace with brown clay tile floors
trimmed in pink and white marble “and features high vaulted plaster ceiling (said to have
been originally decorated with colorful murals) and bronze vestibules and windows.”
(Id.) A major addition was constructed in the rear of the original building in 1939, which
was “sympathetic in detailing and only slightly less elaborate in exterior ornamentation.”
(Id.) The architect submitting the National Register of Historic Places nomination form
in 1985 noted that as the development of nearby high rises continued, “this space defined
by the plaza, street, and Post Office will become more important as an urban space and
reminder of the older scale and history of the City.” (Id.)
In 2012, USPS marketed the Atlantic Street Station for sale and originally accepted
CAM’s offer but after it failed to submit the required deposit, agreed to sell the property
to Cappelli Enterprises (“Cappelli”). (PI Ruling at 6–7.) Cappelli plans to “preserve[] and
enhance[]” the 1916 structure to house a restaurant with an outdoor dining area in the
Station’s front entrance plaza. It will construct two 22-story towers to its north and west.
(Atlantic Street Station Enhancement Plan at AR004746–52.) Cappelli originally planned
to demolish the 1939 annex but has modified its parking plans to preserve it and will cut a
portal through the westerly two arch windows of the annex for vehicular access. (See
Cappelli Aff. ¶ 3, Ex. C to Defs.’ Mem. Supp. [Doc. # 119].)
A.

NEPA Review

In connection with the Cappelli sale, USPS concluded that it was not required to
conduct an environmental review under NEPA, because a categorical exclusion applied
3

for the “[a]cquisition and disposal through sale, lease, transfer or exchange of real
property that does not involve an increase in volumes, concentrations, or discharge rates
of wastes, air emissions, or water effluents, and that under reasonably foreseeable uses,
have generally similar environmental impacts as compared to those before the acquisition
or disposal.” 39 C.F.R. § 775.6(e)(8). In issuing a preliminary injunction, the Court
concluded that “USPS’s application of the categorical exclusion to the Cappelli sale and
conclusion that the construction of two residential towers would have ‘generally similar
environmental impacts’ to the operation at that site of a historic post office appears to be”
arbitrary and capricious, but left it to USPS “to determine what steps it must take to come
into compliance” with NEPA. (PI Ruling at 29, 36.)
After the PI Ruling, USPS undertook an Environmental Assessment (“EA”) for
the planned sale, posted a notice of intent for the EA at several locations in Stamford, and
notified Plaintiffs and Federal, State, and local regulatory agencies.

(AR004761;

AR04762–75.) The EA (AR004776–878) was completed in January 2014, and on January
20, 2014, Defendants sent notice to Plaintiffs and numerous state and local governmental
agencies about the EA’s availability. (AR004890–901.) USPS accepted public comment
on the EA until February 14 and received comments from only Plaintiffs National Post
Office Collaborate and CAM. (AR005125–31; AR005145; AR005152.)
On February 7, 2014, the Collaborate submitted its Response to the EA
(AR004943–5124), which included an analysis completed by environmental consultant
Fuss & O’Neill. This analysis claimed four substantive deficiencies in the EA, which echo
the Collaborate’s claims in this Motion and are discussed in greater detail infra: (1) that
the EA contained insufficient analysis of alternatives to the proposed action; (2) that there
4

was insufficient analysis of cumulative impacts from USPS’s national initiative to sell
other postal facilities throughout the country; (3) that USPS’s consultation with the state
historic preservation office regarding historical resources was inadequate; and (4) that the
EA did not adequately evaluate potential impacts for several resource categories,
including traffic, air quality, and community services and utilities. (Id.)
Because of the limited response from the public, USPS declined to hold a public
hearing on the EA and made a Finding of No Significant Impact (“FONSI”) on March 18,
2014, determining that a full environmental impact statement was not required for the
planned sale. (AR005152; AR005145–235.) In an April 9, 2014, Record of Environmental
Consideration, the Postal Service formally concluded that the FONSI had completed its
NEPA review for the planned sale. (AR005295.)
II.

Standing3
The Supreme Court has “established that the irreducible constitutional minimum

of standing contains three elements.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). A “party must demonstrate that (1) it has suffered an injury in fact that is (a)
concrete and particularized and (b) actual or imminent, not conjectural or hypothetical;
(2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is
likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision. The ‘injury in fact’ requirement has been characterized as ‘an invasion of a

3

Plaintiffs, as the parties asserting federal jurisdiction, bear the burden to establish
their standing. Natural Res. Def. Council, Inc. v. U.S. Food & Drug Admin., 710 F.3d 71,
79 (2d Cir. 2013). “To defend against summary judgment for lack of standing, a plaintiff
‘must set forth by affidavit or other evidence specific facts’ supporting standing, as is
generally required under Rule 56.” Id. (quoting Lujan, 504 U.S. at 561).
5

legally protected interest.’” Green Island Power Auth. v. F.E.R.C., 577 F.3d 148, 159 (2d
Cir. 2009) (internal quotation marks, citations, and alterations omitted). “A plaintiff
seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury
requirement but must show a likelihood that he or she will be injured in the future.”
Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998).
“[E]nvironmental plaintiffs adequately allege injury in fact when they aver that
they use the affected area and are persons ‘for whom the aesthetic and recreational values
of the area will be lessened’ by the challenged activity.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (quoting Sierra Club v.
Morton, 405 U.S. 727, 735 (1972)). “It is well settled that, in a NEPA suit, ‘a cognizable
procedural injury exists when a plaintiff alleges that a proper [environmental impact
statement] has not been prepared . . . when the plaintiff also alleges a concrete interest—
such as an aesthetic or recreational interest—that is threatened by the proposed actions.’”
Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1171 (11th Cir. 2006) (quoting Sierra
Club v. Johnson, 436 F.3d 1269, 1277 (11th Cir. 2006)).
“An association has standing to bring suit on behalf of its members when its
members would otherwise have standing to sue in their own right, the interests at stake
are germane to the organization’s purpose, and neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.” Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. at 181.
Defendants contend that Plaintiffs have failed to demonstrate a concrete interest
or injury in fact to support their standing. (Defs.’ Reply [Doc. # 128] at 1.) In response to
Defendants’ challenge to their standing, the Collaborate has submitted a number of
6

declarations from its members and CAM to show their interests in this litigation and at
oral argument Plaintiffs acknowledged that these declarations are the only evidence that
support their standing. Jaquelyn McCormick, the Executive Director of the Collaborate,
describes the organization as having the “goal of preserving and retaining public
ownership of access to historic community post offices” and contends that its members’
interests “in preserving and maintaining the historic post office building for present and
future generations” will be injured by the proposed development. (McCormick Decl., Ex.
A to Collaborate’s Reply [Doc. # 124] ¶¶ 4, 14–15.) Wes Haynes, a member of the
Collaborate and Stamford resident, contends that he has been “personally
inconvenienced” by the closure of the Atlantic Street Station, because the new post office
is three miles farther from his home. (Haynes Decl., Ex. B to Collaborate’s Reply ¶¶ 2, 4.)
The Collaborate contends that Mr. Haynes’s declaration “establishes that the
Collaborate’s members, including himself and the [Historic Neighborhood Preservation
Program4] had a direct, concrete interest in the Atlantic Street Station Post Office, which
included their prior use and enjoyment of the post office’s aesthetic attributes” and that
“[t]his concrete interest has been and will be harmed by the Postal Service’s actions and
continued noncompliance with NEPA and NHPA.”

(Collaborate’s Reply at 18.)

However, when an organization “has alleged no injury to itself as an organization, distinct
from injury to its . . . members. . . . its claim to standing can be no different from those of
the members it seeks to represent” and thus it must show that “‘its members, or any one
4

Mr. Haynes serves as the Executive Director of the Historic Neighborhood
Preservation Program, which has as its purpose “to preserve, protect, and revitalize
Stamford’s historic built environment” and “considers itself to be a member of the
Collaborate.” (Haynes Decl. ¶¶ 6, 8.)
7

of them, are suffering immediate or threatened injury as a result of the challenged action
of the sort that would make out a justiciable case had the members themselves brought
suit.’” Valley Forge Christian Coll. v. Americans United for Separation of Church & State,
Inc., 454 U.S. 464, 477 n.14 (1982) (quoting Warth v. Seldin, 422 U.S. 490, 511 (1975)).
While the McCormick Declaration establishes that the protection of historical
post offices such as the Atlantic Street Station is germane to the Collaborate’s purpose, see
Bldg. & Const. Trades Council of Buffalo, New York & Vicinity v. Downtown Dev., Inc.,
448 F.3d 138, 147 (2d Cir. 2006) (“[T]oo restrictive a reading of the [germaneness]
requirement would undercut the interest of members who join an organization in order
to effectuate an effective vehicle for vindicating interests that they share with others.”
(quoting Humane Society of the United States v. Hodel, 840 F.2d 45, 56 (D.C. Cir. 1988)),
there is no evidence that any of the Collaborate’s members have suffered a concrete
cognizable environmental injury.
The Collaborate is based in Berkley, California and Ms. McCormick does not
allege that she has ever visited the Atlantic Street Station. Mr. Hayes has likewise alleged
only that he has suffered “inconvenience” from having to travel to a more distant
replacement post office but has not detailed how he or any members have enjoyed the
historic features of the Atlantic Street Station or how the sale will impact their future

8

enjoyment.5 A “generalized harm” to the Collaborate’s interest in historical preservation
is insufficient to establish standing without evidence that the “harm in fact affects the
recreational or even the mere esthetic interests” of the Collaborate’s members. Summers
v. Earth Island Inst., 555 U.S. 488, 494 (2009). A “plaintiff must show that he has actual
aesthetic interest in the area affected by the” challenged environmental action, Pollack v.
U.S. Dep’t Of Justice, 577 F.3d 736, 742 (7th Cir. 2009), and a plaintiff’s burden is not
satisfied by conclusory averments, Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990).
Thus, the Collaborate has not demonstrated that any of its members have suffered a
concrete cognizable injury sufficient to confer standing. See Jacobs, 463 F.3d at 1171; see
also Pollack, 577 F.3d at 742 (holding that standing for a NEPA claim was not established
where the plaintiff “never claims that he visits” the area effected by the environmental
action).
The Collaborate also relies upon CAM’s standing,6 because “[s]o long as one party
has standing, other parties may remain in the suit without a standing injury.” Ouachita
Watch League, 463 F.3d at 1170 (citing Clinton v. City of New York, 524 U.S. 417, 434–36
(1998)). Debra Sherwood, Executive Director, states that CAM’s mission is “to establish
5

Even if this “inconvenience” could suffice to establish Article III standing,
economic and other non-environment injuries are not within the “zone of interest”
protected by NEPA and thus are insufficient to confer statutory standing. See, e.g., ANR
Pipeline Co. v. F.E.R.C., 205 F.3d 403, 408 (D.C. Cir. 2000) (“NEPA, of course, is a statute
aimed at the protection of the environment” and “economic interest is not within the
zone of interests protected by NEPA.”).
6

Because CAM did not move for summary judgment, USPS initially contended
that it had abandoned its claims. In response, CAM filed an opposition brief [Doc. # 123]
opposing USPS’s motion and clarifying that it has not abandoned its claims but rather has
relied upon the Collaborate to prosecute and defend them.
9

an art and exhibition and art education community cultural center, with an emphasis on
mindfulness in Stamford” and that the Atlantic Street Station was its favored location for
the center “because of its architectural importance.”

(Sherwood Decl., Ex. C to

Collaborate’s Reply ¶ 4.)
“As an organization dedicated to Mindful living, art and art education,” Ms.
Sherwood contends that CAM “has an interest in preserving the aesthetic architectural
attributes and values of local historic and cultural resources” and that the proposed
development, including cutting a hole through the 1939 annex to construct a road “will
forever change the aesthetics and architectural configuration of the building” and CAM’s
and its members’ “ability to enjoy the aesthetic attributes of the building.” (Id. ¶¶ 5, 13.)
Drew Backstrand, Secretary and a Director of CAM, contends that CAM “suffered
economic harm” related to its expenses in attempting to purchase the Atlantic Street
Station and Mr. Backstrand has personally “suffered loss with regard to the aesthetic
aspects of the post office and its architectural features that will be altered” by the planned
development. (Backstrand Decl., Ex. D to Collaborate’s Reply ¶ 7; see also Sherwood
Decl. ¶ 14 (outlining CAM’s litigation expenses to challenge USPS’s environmental
review).)
While these declarations contend that CAM and its members will suffer an
aesthetic loss from the sale of the property, they contain only conclusory assertions of
such a loss and like the Collaborate’s declarations, they do not contain details, such as
whether CAM members have visited and enjoyed the aesthetic aspects of the Atlantic
Street Station in the past, which members in particular have done so, and whether they
plan to return, and specifically how the sale will prevent them from enjoying its aesthetic
10

or architectural aspects.7 CAM’s economic harm resulting from its failed attempt to
purchase the property is not cognizable under NEPA’s “zone of interest.” See ANR
Pipeline Co., 205 F.3d at 408.
The Collaborate also contends that standing lies from Plaintiff Kaysay Abrha, who
is alleged to have held a post office box at the Atlantic Street Station before its closure.
(2d Am. Compl. ¶ 4.) However, no evidence has been submitted to support his standing
under NEPA or NHPA and the only interest that has even been alleged as to Mr. Abrha
relates to his loss of access to his post office box, not an environmental injury.8 Thus,
Plaintiffs have not met their burden of demonstrating standing as to Mr. Abrha under
NEPA and the NHPA. See Lujan, 504 U.S. at 561.
Because there is no evidence that members of CAM or the Collaborate have
suffered a concrete environmental injury, Plaintiffs lack standing to proceed. Although
the Court could grant Defendants summary judgment on that basis alone, it also
concludes that Plaintiffs’ claims fail on the merits.

7

USPS also contends that CAM has failed to show that historic preservation is
germane to its purpose as required for organizational standing. (USPS Reply at 5.)
However, the Sherwood Declaration contends that CAM is an organization “dedicated to
Mindful living, art and art education” and “has an interest in preserving the aesthetic
architectural attributes and values of local historic and cultural resources.” (Sherwood
Decl. ¶ 5.) This appears to be sufficient to show germaneness. See Bldg. & Const. Trades
Council of Buffalo, 448 F.3d at 147.
8

Additionally, Mr. Abrha has not participated in this case since the PI Ruling
issued. After the original counsel for Plaintiffs withdrew from this action and noted that
“Mr. Abrha had not cooperated with counsel in the prosecution of this case or
participated directly in the prosecution of this case” (Mot. to Withdraw [Doc. # 61]), Mr.
Abrha has not entered a pro se appearance or otherwise participated in this suit.
11

III.

Review on the Merits9
A.

NEPA

Because NEPA does not provide private rights of action, courts review agency
actions under the Administrative Procedures Act (“APA”), Brodsky v. U.S. Nuclear
Regulatory Comm’n, 704 F.3d 113, 119 (2d Cir. 2013), under which courts review
contested agency actions to determine if they are “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A). An agency’s
actions are arbitrary and capricious if it “has relied on factors which Congress had not
intended it to consider, entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551
U.S. 644, 658 (2007) (quoting Motor Vehicle Mfrs. Assn. of United States, Inc. v. State
Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983)). “Although highly deferential,
this standard ‘does not equate to no review.’” Brodsky, 704 F.3d at 119 (quoting Wilson v.
CIA, 586 F.3d 171, 185 (2d Cir. 2009)).

9

“‘[W]hen a party seeks review of agency action under the APA, the district judge
sits as an appellate tribunal. The entire case on review is a question of law.’ Judicial
review of agency action is often accomplished by filing cross-motions for summary
judgment. The question whether an agency’s decision is arbitrary and capricious,
however, is a legal issue, whether it is presented as a motion to dismiss or for summary
judgment.” State of Connecticut v. U.S. Dep’t of Commerce, No. 3:04CV1271 (SRU), 2007
WL 2349894, at *1 (D. Conn. Aug. 15, 2007) (quoting American Bioscience, Inc. v.
Thompson, 269 F.3d 1077, 1083–84 (D.C. Cir. 2001)). “Generally, a court reviewing an
agency decision is confined to the administrative record compiled by that agency when it
made the decision.” Nat’l Audubon Soc. v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997).
12

NEPA requires federal agencies, including USPS,10 to review the environmental
impact of major federal actions significantly affecting the quality of the human
environment. 42 U.S.C. § 4332(2)(C). The Supreme Court has stated that NEPA has
twin aims. “First it places upon an agency the obligation to consider every significant
aspect of the environmental impact of a proposed action. Second, it ensures that the
agency will inform the public that it has indeed considered environmental concerns in its
decision making process.” Baltimore Gas & Elec. Co. v. Natural Resources Defense
Council, 462 U.S. 87, 97 (1983) (internal citations and quotation marks omitted).
Under NEPA, an agency contemplating “major Federal actions significantly
affecting the quality of the human environment” must prepare an Environmental Impact
Statement (“EIS”).

42 U.S.C. § 4332(2)(c).

The EIS demonstrates the agency’s

“consideration of the reasonably foreseeable environmental effects” of the contemplated
action. Brodsky, 704 F.3d at 119.

10

In order to allow USPS to operate its affairs in a “businesslike way,” Congress
provided in 1970 that “no Federal law[s] dealing with public or Federal contracts,
property, works, officers, employees, budgets, or funds” apply to the USPS. 39 U.S.C.
§ 410(a). Despite this law, the Second Circuit determined that Congress saw NEPA as
“unusually important” and intended for it to apply broadly even to USPS, which “does
furnish an essential public service and has public functions and responsibilities.” Chelsea
Neighborhood Ass’ns v. U.S. Postal Serv., 516 F.2d 378, 383–86 (2d Cir. 1975). USPS
maintains that the Second Circuit did not specifically hold that the APA applies to USPS
and thus Plaintiffs have not identified a valid cause of action to challenge USPS’s NEPA
compliance even if it is in fact subject to NEPA. (Defs.’ Reply at 7.) As the Court has
already concluded in the Ruling on Defendants’ Motion to Dismiss [Doc. # 129], Chelsea
Neighborhood Ass’ns held that there was a private right of action to challenge USPS’s
compliance with NEPA and whether it was reviewed under the APA or another source of
a private right is not material, because the “arbitrary and capricious” standard of review
indisputably applies. (Id. at 18–19.)
13

In order to reduce the administrative burden on agencies from NEPA,
implementing regulations encourage agencies to develop “categorical exclusions” or
categories of actions that do not individually or cumulatively have a significant effect on
the environment, and therefore do not require an EIS absent “extraordinary
circumstances.” See 40 CRF § 1500.4(p); see also Fund for Animals v. Babbitt, 89 F.3d
128, 130 (2d Cir. 1996) (noting that “[t]he [Counsel on Environmental Quality] has
authorized the use of categorical exclusions to promote efficiency in the NEPA review
process”).
If an agency’s action is neither categorically excluded from nor clearly subject to
the requirements of producing an EIS, an agency may prepare “a more limited document,
an Environmental Assessment (EA).” Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 757
(2004). “The EA is a ‘concise public document’ that ‘[b]riefly provide[s] sufficient
evidence and analysis for determining whether to prepare an [EIS].’” Id. (quoting 40
C.F.R. § 1508.9(a)). “If, pursuant to the EA, an agency determines that an EIS is not
required under applicable CEQ regulations, it must issue a ‘finding of no significant
impact’ (FONSI), which briefly presents the reasons why the proposed agency action will
not have a significant impact on the human environment.” Id. at 758–59 (citing 40 C.F.R.
§§ 1501.4(e), 1508.13). If an agency action is not subject to a categorical exclusion, “any
doubt as to whether contemplated action requires an EIS must be resolved by preparing
an EA.” Brodsky, 704 F.3d at 120.
Because “NEPA is, at its core, a procedural statute that mandates a process rather
than a particular result,” a court’s review “focuses primarily on the procedural regularity

14

of the decision, rather than on its substance.” Id. at 118–19 (internal quotation marks
omitted). The Second Circuit has
consistently held that whether a particular agency action will have a
“significant” effect on the environment is a substantive question left to the
informed discretion of the agency proposing the action. However, because
NEPA provides a procedural framework within which such judgments
must be made, courts are responsible for ensuring that agencies comply
with the statutory duty imposed on them by Congress. Therefore, in
reviewing an administrative decision not to issue an EIS, a federal court
must undertake a two-step analysis. First, we must consider whether the
agency took a “hard look” at the possible effects of the proposed action.
Second, if the agency has taken a “hard look,” we must ask whether the
agency”s decision was arbitrary or capricious. Our inquiry must be
“searching and careful,” although the ultimate scope of judicial review is
narrow. The judiciary must not inject itself into an area where the choice
of action to be taken is one confided by Congress to the executive branch.
Nat’l Audubon Soc. v. Hoffman, 132 F.3d 7, 14 (2d Cir. 1997) (internal citations omitted).
Judicial review is guided by the “rule of reason,” which assesses whether NEPA
review “has been compiled in good faith and sets forth sufficient information to enable
the decision-maker to consider fully the environmental factors involved and to make a
reasoned decision after balancing the risks of harm to the environment against the
benefits to be derived from the proposed action, as well as to make a reasoned choice
between alternatives.” Suffolk Cnty. v. Sec’y of Interior, 562 F.2d 1368, 1375 (2d Cir.
1977).
The Collaborate contends that because the Cappelli project was already a “done
deal” in the minds of USPS, they (1) failed to take a hard look at alternatives, (2) limited
public participation, and (3) failed to consider evidence of the cumulative impacts of

15

Defendants’ national campaign to dispose of historic post offices. (Collaborate’s Mem.
Supp. [Doc. # 112] at 23.)
On the first point, NEPA requires an EIS to “[r]igorously explore and objectively
evaluate all reasonable alternatives” to a proposal, including the alternative of taking “no
action.” 40 C.F.R. § 1502.14. NEPA “does not, however, require agencies to analyze the
environmental consequences of alternatives it has in good faith rejected as too remote,
speculative, or impractical or ineffective. What is required is information sufficient to
permit a reasoned choice of alternatives as far as environmental aspects are concerned.”
Custer Cnty. Action Ass’n v. Garvey, 256 F.3d 1024, 1039–40 (10th Cir. 2001) (internal
quotation marks and alterations omitted).
Like other NEPA determinations, this assessment of alternatives is governed by
the deferential “rule of reason,” id., which “governs both which alternatives the agency
must discuss, and the extent to which it must discuss them,” Citizens Against Burlington,
Inc. v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991) (internal quotation marks omitted).
Under the “rule of reason,” “the agency itself is responsible for determining the range of
alternatives to be considered.” City of New York v. U.S. Dep’t of Transp., 715 F.2d 732,
742 (2d Cir. 1983). “While an agency is not obliged to consider every alternative to every
aspect of a proposed action, reviewing courts have insisted that the agency consider such
alternatives to the proposed action as may partially or completely meet the proposal’s
goal.” Id at 742–43 (internal citations and quotation marks omitted).
Thus, a “proposed alternative is reasonable only if it will bring about the ends of
the federal action” that is sought to be accomplished. Citizens Against Burlington, Inc. v.
Busey, 938 F.2d 190, 195 (D.C. Cir. 1991) (citing City of New York, 715 F2.d at 742–43.)).
16

Where, as here, an EA rather than an EIS has been prepared, the discussion of alternatives
need only be “brief.” 40 C.F.R. § 1508.9; see also Friends of Ompompanoosuc v. F.E.R.C.,
968 F.2d 1549, 1558 (2d Cir. 1992) (“[T]he range of alternatives an agency must consider
is narrower when, as here, the agency has found that a project will not have a significant
environmental impact.”).
Here, the EA defined USPS’s objective as “selling the [Atlantic Street Station] . . . .
because operations at this facilities are no longer required” to provide postal services.
(AR004779.) This purpose was described as being “consistent with national initiatives to
improve the overall USPS financial condition, to review all underutilized properties and
[to] generate revenue when deemed feasible.” (Id.)
At oral argument, the Collaborate acknowledged that USPS’s objective was
proper, but nevertheless faulted the agency for failing to consider alternatives, such as (1)
leasing all or portions of the facility, (2) a preservation covenant requiring restoration of
the building interior and/or preservation of the 1939 annex, or (3) reuses such as a
library, museum, bank, theater, or courthouse. (Collaborate’s Mem. Supp. at 23–24
(citing F&O Review at AR004958).) However, as the Collaborate further acknowledged
at oral argument, USPS need only consider reasonable alternatives in light of the purpose
of its federal undertaking and the Collaborate’s briefing failed to analyze these alternatives
in light of this purpose. As USPS notes, each of these alternatives would require USPS to

17

maintain ownership of the Atlantic Street Station, which is contrary to its purpose in
disposing of the facility to generate revenue.11
In light of the fact that the Atlantic Street Station was no longer in use, the
agency’s mission to “provide adequate and efficient postal services,” 39 U.S.C. § 403(a),
and its need to generate revenue, USPS’s definition of the purpose of the proposed action
and analysis of alternatives were reasonable. See Earth Island Inst. v. U.S. Forest Serv., 697
F.3d 1010, 1021 (9th Cir. 2012) (“[C]onsideration of a no action alternative and [the
agency’s] preferred action was not arbitrary and capricious under the less rigorous
requirements of an EA (rather than an EIS).”); Utah Envtl. Cong. v. Bosworth, 439 F.3d
1184, 1195 (10th Cir. 2006) (“Given the Project’s dual objectives and the agency’s
discretion to [choose] those objectives, the Forest Service examined a reasonable range of
alternatives and did not act arbitrarily when it considered only the no-action alternative
and the modified proposed action.” (internal citation omitted)).
Next, the Collaborate contends that the EA failed to take the requisite “hard look”
at environmental consequences of the proposed action because it limited public
participation by allowing only a 14 day comment period on the EA. (Collaborate’s Mem.
11

CAM contends that USPS should have considered the alternative of selling the
building to it rather than Cappelli. (CAM’s Reply [Doc. # 123] at 6–7.) However, USPS’s
concededly proper purpose was more general—to sell the building to generate revenue,
not to sell the building to any particular buyer. While the EA considered Cappelli’s postsale development plans, it was required to do so because it had already entered into an
agreement with Cappelli to sell the property and thus Cappelli’s development plans were
“reasonably foreseeable” (AR04778), as the Court held in issuing a preliminary
injunction. CAM had already failed in its attempts to purchase the property (see Ruling
on Mots. to Dismiss and Amend the Complaint at 14) and thus CAM purchasing the
property at this point would be a remote and speculative possibility, not an alternative
that must be considered. Custer Cnty. Action Ass’n, 256 F.3d at 1039–40.
18

Supp. at 24–25.)

The Collaborate cites to no law or regulation that it contends

Defendants violated in limiting public participation and the record shows that USPS
provided notice directly to the Collaborate about its preparation of the EA and solicited
its comments in response. (AR004897.) The Collaborate submitted such comments and
the FONSI directly responded to them. (AR005157–58.) USPS is only required to solicit
and consider “information and views” from the public “where there is a substantial
likelihood of significant effects on the environment.” 39 C.F.R. § 775.10(b). Here, USPS
concluded that there was no such significant effect on the environment but nevertheless
solicited the Collaborate’s participation.
CAM likewise faults USPS for not holding a public hearing on the EA. (CAM
Reply at 7.) A public hearing is required “whenever appropriate,” such as when there is
“[s]ubstantial environmental controversy concerning the proposed action or substantial
interest in holding the hearing.” 40 C.F.R. § 1506.6(c). Although the regulations do not
differentiate between the public involvement requirements when an agency conducts an
EA rather than a full EIS, “they afford agencies considerable discretion to decide the
extent to which such public involvement is ‘practicable.’” Brodsky, 704 F.3d at 121
(quoting 40 C.F.R. § 1501.4(b)). “When the exercise of that discretion is challenged on
appeal, the reviewing court properly considers whether the lack of public input prevented
the agency ‘from weighing all the factors essential to exercising its judgment [under
NEPA] in a reasonable manner.’” Id. (quoting Friends of Ompompanoosuc, 968 F.2d at
1557). Because USPS received comments only from CAM and the Collaborate, the
agency reasonably concluded that there was no “substantial environmental controversy,”

19

and, in any event, the lack of a public hearing did not prevent USPS from weighing the
relevant environmental considerations given Plaintiff’s detailed written submissions.
The Collaborate also contends that USPS failed to evaluate “the cumulative effects
of its national initiative to sell other USPS postal facilities throughout the country.”
(Collaborate’s Mem. Supp. at 25.) “Cumulative impact is the impact on the environment
which results from the incremental impact of the action when added to other past,
present, and reasonably foreseeable future actions regardless of what agency (Federal or
non-Federal) or person undertakes such other actions. Cumulative impacts can result
from individually minor but collectively significant actions taking place over a period of
time.” 40 C.F.R. § 1508.7. The EA defined the relevant geographic area for evaluating
cumulative impacts as “downtown Stamford” (EA at 23) and identified potential
cumulative impacts as (1) air quality, (2) socioeconomic, (3) visual resources/aesthetics,
(4) transportation, (5) noise, and (6) community services and utilities. (Id.). While the
Collaborate contends that USPS should have looked nationally at its concerted efforts to
dispose of property, the “identification of the geographic area within which [cumulative
impacts] may occur, is a task assigned to the special competency of the appropriate
agencies.” Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976). The Collaborate does not
identify any other specific post office sales that Defendants should have considered in
conjunction with this review and Defendants reasonably concluded that the relevant
geographic area for evaluating cumulative impacts was downtown Stamford rather than
the nation as a whole.
Finally, the Collaborate contends that USPS’s FONSI was arbitrary and capricious
because it concluded that the proposed action would result in no significant
20

environmental impact on the bases of a “speculative” determination that “future local
permits and approvals” would “mitigate impacts and support a determination of no
significant impact, rather than providing independent analysis of the potential impacts
and identification of the mitigation measures as required by NEPA.” (Collaborate’s
Mem. Supp. at 26.) USPS contends, however, that it did not issue a “mitigated FONSI”
(Defs.’ Mem. Supp. at 38), which “occurs when an agency or an involved third party
agrees to employ certain mitigation measures that will lower the otherwise significant
impacts of an activity on the environment to a level of insignificance. In this way, a
FONSI could be issued for an activity that otherwise would require the preparation of a
full-blown EIS.” Spiller v. White, 352 F.3d 235, 241 (5th Cir. 2003).
Rather, USPS contends that “[t]he reference was a disclosure of potential
environmental effects, not a mitigation requirement” and that it reasonably determined
that “given permitting and local regulatory requirements and the limited information the
Postal Service had regarding the likely buyer’s redevelopment plans, the planned sale . . . .
would not result in significant impacts to the human environment.” (Defs.’ Mem. Supp.
at 39.)
The PI Ruling established that USPS could not simply ignore the reasonably
foreseeable post-sale uses of the Atlantic Street Station. USPS responded by conducting
an EA and examining Cappelli’s proposed development plans on a number of
environmental indicators, including air qualify, water, historical and archaeological
resources, and transportation. (AR005145–50.) While USPS was required to consider
these reasonably foreseeably post-sale uses of the property, the scope of the relevant
major federal action is still narrow: the sale, not development, of the Atlantic Street
21

Station. The Court’s review is “procedural” and its role is to ensure that USPS considered
these potential environmental effects impacts, not to evaluate the substance of its
decisions. See Friends of Ompompanoosuc, 968 F.2d at 1556. Because USPS has now
properly considered potential environmental consequences of the sale, its motion for
summary judgment as to the NEPA claim is granted.
B.

NHPA12
1.

Section 106

NHPA “has a fairly broad mandate, in keeping with the longstanding
Congressional interest in historic preservation” and “‘requires each federal agency to take
responsibility for the impact that its activities may have upon historic resources, and
establishes the Advisory Council on Historic Preservation . . . to administer the Act.’”
Bus. & Residents Alliance of E. Harlem, 430 F.3d at 590 (quoting Nat’l Mining Ass’n v.
Fowler, 324 F.3d 752, 755 (D.C. Cir. 2003)) (alterations in original).
Section 106 of NHPA requires that federal agencies “take into account the effect of
[any] undertaking on any district, site, building, structure, or object that is included in or
eligible for inclusion in the National Register [of Historic Places].” 16 U.S.C. § 470f.
12

In Bus. & Residents Alliance of E. Harlem v. Jackson, 430 F.3d 584, 590 (2d Cir.
2005), the Second Circuit declined to address whether a private right of action exists
under the NHPA or whether courts instead review agency action under the APA, because
it was “a statutory question rather than one of Article III jurisdiction” that it “need not
resolve . . . where the case can otherwise be resolved in the defendants’ favor.” Although
USPS maintains that the NHPA does not apply to it, it “voluntarily follows, as matter of
policy, the procedures set forth in Section 106 when undertaking real property disposals”
(Defs.’ Mem. Supp. at 20), and has adopted regulations to ensure compliance with Section
106, see 39 C.F.R. § 241.4(d). As in Bus. & Residents Alliance of E. Harlem, the Court
concludes that Plaintiffs’ NHPA challenge fails on the merits and thus the Court need not
address the statutory cause of action.
22

“Section 106 is therefore primarily procedural in nature. It does not itself require a
particular outcome, but rather ensures that the relevant federal agency will, before
approving funds or granting a license to the undertaking at issue, consider the potential
impact of that undertaking on surrounding historic places.

As such, courts have

sometimes referred to Section 106 as a ‘stop, look, and listen’ provision.”

Bus. &

Residents Alliance of E. Harlem, 430 F.3d at 591 (internal citation omitted). If the
undertaking in question “is a type of activity that does not have the potential to cause
effects on historic properties,” an agency “has no further obligations under Section 106.”
36 C.F.R. § 800.3(a)(1).
The regulations implementing the NHPA require agencies “to consult with state
historic preservation officers (‘SHPOs’), make reasonable and good faith efforts to
identify historic properties, determine their eligibility for listing in the National Register
of Historic Places, and assess the effects of a project on such properties.” Pres. Coal. of
Erie Cnty. v. Fed. Transit Admin., 356 F.3d 444, 447 (2d Cir. 2004). An adverse effect
exists when “an undertaking may alter, directly or indirectly, any of the characteristics of
a historic property . . . in a manner that would diminish the integrity of the property’s
location, design, setting, materials, workmanship, feeling, or association.” 36 C.F.R.
§ 800.5(a)(1). The agency is required to notify and solicit comment from the Advisory
Council on Historic Preservation, see 16 U.S.C. § 470f, and consult with the appropriate
SHPO “to develop and evaluate alternatives or modifications to the undertaking that
could avoid, minimize, or mitigate adverse effects on historic properties.” 36 C.F.R.
§ 800.6(a). If the agency finds that “the undertaking will have no effect upon” historic
properties, it is required to provide documentation of this finding to SHPO and if SHPO
23

does not object within 30 days, the agency’s “responsibilities under section 106 are
fulfilled.” 36 C.F.R. § 800.4(d)(1)(i).
Here, USPS determined that with the protection of a Preservation Covenant the
planned sale of the property would not result in any adverse effects to the Atlantic Street
Station’s historic features. AR002079–81. The Preservation Covenant prohibited all
future owners from making “exterior construction, alteration, or rehabilitation” affecting
“the historic features of the property” without SHPO’s express permission but permitted
the demolition of the 1939 addition. (See Rouse Aff. ¶¶ 9–10 & Ex. 5 ¶ 2.) When USPS
undertook to sell the Atlantic Street Station, on April 12, 2011, USPS sent a draft
Preservation Covenant to SHPO, which returned a copy of this letter to USPS on June 22,
2011 with a stamp marked “CONCUR” on the first page. (AR02100–05.) Thus, with
SHPO’s concurrence, the agency’s obligations under Section 106 were fulfilled. See 36
C.F.R. § 800.4(d)(1)(i).
The Collaborate contends that USPS’s conclusion that the Preservation Covenant
was sufficient to ensure that the sale would have no potential adverse impacts was
arbitrary and capricious, because the Covenant allows for destruction of the 1939 annex
and does not protect the interior of the 1916 structure. (Collaborate’s Mem. Supp. at 33–
34.) Because Section 106 entrusts USPS to make the determination of whether its actions
will have an adverse effect, judicial review of this determination is under a deferential
“arbitrary and capricious” standard. See Neighborhood Ass’n Of The Back Bay, Inc. v. Fed.
Transit Admin., 463 F.3d 50, 59 (1st Cir. 2006) (“[W]e owe deference to the FTA’s no
adverse effect finding under sections 106 and 110, since the FTA has jurisdiction to make
the finding, even though it does not have interpretive authority.”).
24

In determining that the Preservation Covenant would ensure that the sale would
have no adverse effect, USPS cited 36 C.F.R. § 800.5(2)(vii), which provides as an
example of an adverse effect, the “sale of property out of Federal ownership or control
without adequate and legally enforceable restrictions or conditions to ensure long-term
preservation of the property’s historic significance.” (emphasis added). Thus, there is no
adverse effect if adequate legal protections ensure preservation of the historic attributes of
the property. Because the National Register of Historic Places nomination form focuses
on the façade and other exterior features of the building, Defendants’ determination that
these features were the historically significant ones and that the Preservation Covenant
was adequate to protect them was not arbitrary and capricious.
C.

Sections 110 and 111 of the NHPA

Plaintiffs also challenge USPS’s failure to comply with Sections 110 and 111 of the
NHPA. Section 110 requires federal agencies to establish a “preservation program for the
identification, evaluation, and nomination to the National Register of Historic Places, and
protection of historic properties” and to ensure that such a program is carried out in
consultation with local governments. 16 U.S.C. § 470h-2. The Collaborate contends that
USPS lacks such a program, because it could not be found in its “Guide to Real Property
Acquisitions and Related Services.” (Collaborate’s Mem. Supp. at 30.) However, in
response to the Collaborate’s claim, USPS has clarified that a separate document, its
“Facilities Environmental Guide sets a framework for personnel to follow in considering
facilities-related activities.” (Defs.’ Mem. Supp. at 29 (citing AR000570–591).) Plaintiffs
do not challenge the sufficiency of this document in their reply breif. Furthermore, the
House Report for Section 110 states that it “clarifies and codifies the minimum
25

responsibilities expected of Federal agencies in carrying out the purposes of this Act,” but
“is not intended to change the preservation responsibilities of Federal agencies as
required by any other laws.” Lee v. Thornburgh, 877 F.2d 1053, 1057 (D.C. Cir. 1989)
(quoting H.R.Rep. No. 1457, 96th Cong., 2d Sess. 36 (1980)). Thus the Collaborate has
not identified any legal basis for challenging USPS’s Section 110 compliance nor shown
USPS’s failure to comply.
Section 111 provides that federal agencies
shall, to the extent practicable, establish and implement alternatives for
historic properties, including adaptive use, that are not needed for current
or projected agency purposes, and may lease an historic property owned
by the agency to any person or organization, or exchange any property
owned by the agency with comparable historic property, if the agency head
determines that the lease or exchange will adequately insure the
preservation of the historic property.
16 U.S.C. § 470h-3(a). Plaintiffs contend that because there is no record that Defendants
considered leasing the property rather than selling it, they failed to comply with Section
111. While requiring agencies, where practicable, to establish alternatives for historic
properties, the statute explicitly provides only that an agency “may” lease properties and
its legislative history confirms it “authorizes Federal agencies to lease or exchange any
agency-owned property . . . . so that agencies that wish to maintain ownership of an
historic property may assure its continued preservation.” H.R. Rep. No. 96-1457, 96th
Cong., 2d Sess. 39 (Oct. 10, 1980). Thus, even if Plaintiffs could bring a claim for a

26

violation of Section 111(a), it is only an authorization for agencies to lease property and
does not require consideration of a specific given transaction.13
D.

Motion to Strike

Finally, Defendants move [Doc. # 118] to strike three exhibits that the Collaborate
has submitted: (1) an April 16, 2014, audit report from the United States Postal Service
Office of the Inspector General (Ex. 36 to Loc. Civ. R. 56(a)1 Stmt.); (2) an April 17, 2014,
report from the Advisory Council on Historic Preservation (Ex. 37); and (3) a February
2014 General Services Administration Fiscal Year 2013 Performance Overview (app’x to
Collaborate’s Mem. Supp.)

The Collaborate contends that Inspector General and

Advisory Council reports “demonstrate that the USPS did not consider all the
environmental consequences and adverse impact of its proposed action even though the
Collaborate raised these issues in its Response to the EA.” (Collaborate’s Mem. Supp. at
19.)

The Collaborate contends that both reports document USPS’s deficiencies in

complying with the NHPA in disposing of properties. As the Collaborate acknowledges

13

In Committee for Preservation of Seattle Federal Reserve Bank Building v. Federal
Reserve Bank of San Francisco, 2010 U.S. Dist. LEXIS 26084 at *19 (W.D. Wash. Mar. 19,
2010), a district court adopted a contrary conclusion and held that the Federal Reserve
“should have considered adaptive use and/or a lease arrangement before deciding to
transfer ownership of [its] historic property to a third party.” Although the court noted
“that no court has ever set aside agency action because the agency violated § 111,” it held
that the Federal Reserve’s failure “to at least consider, if not implement, adaptive use or
lease strategies to protect historic properties” was a violation of NHPA and justified
setting aside the sale. Id. The Court declines to adopt this reasoning in light of the
absence of a clear statutory directive to do so.
27

both of these reports were released after the EA and FONSI in this case were issued.14 (Id.
at 20.)
“Generally, a court reviewing an agency decision is confined to the administrative
record compiled by that agency when it made the decision. . . . Despite the general
‘record rule,’ an extra-record investigation by the reviewing court may be appropriate
when there has been a strong showing in support of a claim of bad faith or improper
behavior on the part of agency decisionmakers or where the absence of formal
administrative findings makes such investigation necessary in order to determine the
reasons for the agency’s choice.” Hoffman, 132 F.3d at 14. Deviation from this rule
“occurs with more frequency in the review of agency NEPA decisions than in the review
of other agency decisions,” because NEPA imposes a duty on federal agencies to compile
a comprehensive analysis of the potential environmental impacts of its proposed action,
and review of whether the agency’s analysis has satisfied this duty often requires a court
to look at evidence outside the administrative record.” Id. at 14–15. “Nonetheless,
deviation from the record rule, even in the review of NEPA decisions, is limited.” Id. at
15.
The Collaborate contends that consideration of these materials outside the record
is appropriate “because the absence of USPS[’s] findings on the cumulative impact of the
sale of historic post offices in the EA and FONSI make it necessary to investigate the
reasons for the agency’s findings.” (Collaborate’s Mem. Supp. at 21.) However, the Court

14

Neither party addresses the GSA report, which is cited in support of the
Collaborate’s argument that the EA failed to take a hard look at using the GSA to dispose
of the property. (Collaborate’s Mem. Supp. at 37.)
28

has already concluded that USPS appropriately analyzed cumulative impacts in the
downtown Stamford area only and thus there was no “bad faith or improper behavior” by
the agency. Hoffman, 132 F.3d at 14. Furthermore, there is not an “absence of formal
administrative findings,” which “makes such investigation necessary in order to
determine the reasons for the agency’s choice,” id., because the administrative record
already contains the Collaborate’s objection and Defendants’ response explaining its
decision to not consider national cumulative impacts in the EA. (AR004949; AR004960;
AR05169–70.)

Accordingly, consideration of extra-record materials is neither

appropriate nor necessary and therefore Defendants’ Motion to strike is granted.15
IV.

Conclusion
For the reasons set forth above, Defendants’ Motion [Doc. # 119] for Summary

Judgment and Motion [Doc. # 127] to Strike are GRANTED; the Collaborate’s Motion
[Doc. # 111] for Summary Judgment is DENIED. The previously entered Preliminary
Injunction [Doc. # 52] is dissolved and the Clerk is directed to close this case.

IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 26th day of November, 2014.

15

Additionally, neither report has any discussion of the Atlantic Street Station (the
Advisory Council report notes the sale and that a Section 106 review was completed; the
Inspector General report does not mention it at all).
29