USCA1 Opinion
[See Slip Opinion from Clerk's Office for Appendix]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1004
CITY OF WALTHAM,
Plaintiff, Appellant,
v.
UNITED STATES POSTAL SERVICE,
Defendant, Appellee.
_____________________
No. 92-1383
CITY OF WALTHAM,
Plaintiff, Appellee,
v.
UNITED STATES POSTAL SERVICE,
Defendant, Appellee.
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TOWN OF LEXINGTON,
Intervenor, Appellant.
_____________________
No. 92-1399
CITY OF WALTHAM,
Plaintiff, Appellant,
v.
UNITED STATES POSTAL SERVICE,
Defendant, Appellee,
__________
TOWN OF LEXINGTON,
Intervenor, Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
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Aldrich, Senior Circuit Judge,
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and Selya, Circuit Judge.
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John B. Cervone, III, Assistant City Solicitor, with whom
_______________________
Patricia A. Azadi, Assistant City Solicitor, was on brief for City of
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Waltham.
William L. Lahey with whom Jonathan L. Weil and Palmer & Dodge
________________ ________________ _______________
were on brief for Town of Lexington.
Mary Elizabeth Carmody, Assistant United States Attorney, with
_______________________
whom A. John Pappalardo, United States Attorney, was on brief for
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United States Postal Service.
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December 2, 1993
____________________
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BREYER, Chief Judge. In November 1990, the United
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States Postal Service decided to buy a 36 acre parcel of
land, located in Waltham, Massachusetts, just south of
Lexington, near the intersection of two busy highways, Route
128 and Route 2. The Service intends to convert the three
buildings now on the property into a 400,000 square foot
mail distribution facility. Both Waltham and Lexington
oppose the project.
In May 1991, Waltham filed this lawsuit (in which
Lexington later intervened). The towns pointed out that the
Service must prepare an Environmental Impact Statement (an
"EIS") -- a detailed statement on the environmental impact
of the proposed project -- unless a preliminary assessment
allows the Service to find that the project will have "no
significant impact" on the environment. National
Environmental Policy Act of 1969 ("NEPA") 102, 42 U.S.C.
4332(C); 40 C.F.R. 1501.4, 1508.13; 39 C.F.R.
775.6(a)(2). The towns claimed that the Service's finding
of "no significant impact" was faulty. And, they asked the
district court to enjoin the Service from proceeding further
until it prepared an EIS (and complied with several other
statutes and regulations).
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On cross motions for summary judgment, the
district court denied the injunction. The court reviewed
the Service's several "assessments" of the project's
potential environmental impacts, and it concluded that those
assessments, taken together, provided adequate factual
support for the Service's "no significant impact"
conclusion. It rejected the towns' other claims.
The towns now appeal the district court's
decision. Waltham, in particular, in its brief, makes a
vast number of claims and arguments, many of them highly
factual and record-based in nature. We have dealt with the
claims and arguments as follows. First, we have evaluated
what seem to us the most important factual claims -- those
most likely to suggest the existence of a significant
environmental effect -- in light of a rather thorough, and
independent, reading of the 3800 page record (which includes
about 1800 pages of "environmental assessments"). Second,
we have considered in depth what seem to us the most
important non-fact-related legal claims, particularly a
question that the towns raise about the composition of the
record. Third, in evaluating the towns' many other claims
(less significant claims that, once we had read the record,
seemed unlikely to have legal merit), we did not go beyond
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the record citations and the arguments contained on the
pages in the briefs where the towns raise those claims.
We mention our approach to the case because we
wish counsel to understand how a fairly lengthy process of
review led to a fairly simple ultimate conclusion, namely,
that the district court was correct, and basically for
reasons set forth in its ninety-five page opinion. We see
no need to rewrite that same opinion. Rather, we shall
first explain why we reject the towns' main procedural
argument (dealing with the composition of the record). We
shall then discuss the main fact-related claims. But,
subsequently, we shall indicate only briefly why we reject
the other arguments that the towns have made. Counsel
should take our statement of reasons throughout as
supplemented by those of the district court and by our
conclusion that, in respect to each of the fact-related
claims, the towns have not pointed to sufficient evidentiary
support to create a triable issue.
I
The Scope of the Record
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The Service's consultants, Rizzo Associates,
completed three studies of the project's likely
environmental effects. The Service published the first
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"environmental assessment" in May 1990. After a public
hearing, it commissioned a second "assessment," which it
published in September. Two months later, at the beginning
of November, the Service issued its "finding of no
significant impact" (which it conditioned on the assumption
that "all proposed mitigation measures are implemented").
Shortly thereafter, the Service asked Rizzo to perform a
third study of the site.
The third assessment analyzed the potential
environmental impact of proposed changes, including new
mitigation measures, that the Service intended to make. It
also investigated more thoroughly some of the environmental
concerns that the towns had expressed. The assessment
concludes that its findings "support[] the [finding of no
significant impact] issued by the Postal Service" in
November. The Service published this third assessment in
June 1991 (a month after Waltham brought this lawsuit) as an
"amendment" to its earlier assessments.
The towns' most important argument on appeal
concerns this third study. The towns believe that, without
the third study, the district court would have reached a
different conclusion about the project's likely
environmental impact. And, they argue that the district
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court should not have taken the third study into account
because Rizzo developed it after the Service made its "no
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significant impact" finding. Cf. Citizens to Preserve
___ ______________________
Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971)
____________________ _____
(warning against accepting an agency's "post hoc
rationalizations"). Cast in its best light, the towns'
argument amounts to both a logical claim, namely, that
information developed after the November 1990 "no
significant impact" finding cannot help show that the
Service's finding was lawful earlier when made, and a
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practical claim, namely, that the court, at least, should
remand the case to the Service so that it, not the court,
can reassess its November 1990 decision in light of the new
information.
We agree with the towns about the importance of
the third study. Without that study, one might find a
"substantial possibility" that the project "could
significantly affect the quality of the human environment";
and, such a finding would show the need to perform an
environmental impact statement. Quinonez-Lopez v. Coco
______________ ____
Lagoon Dev. Corp., 733 F.2d 1, 2 (1st Cir. 1984). Once one
_________________
considers the third assessment, however, the "substantial
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possibility," and the consequent need for an EIS, disappear.
See supra p. 6; infra part II.
___ _____ _____
We nonetheless disagree with the towns about court
consideration of the third assessment. We are unaware of
any hard and fast legal rule forbidding a court's
consideration of a subsequently made assessment and project
modifications. The district court independently reviewed
the third assessment (as have we). We conclude that, in
doing so, the court acted lawfully, in light of the
following considerations.
First, the towns seek more than a simple judicial
declaration that the November 1990 decision was inadequately
supported when made. (In fact, the district court basically
conceded that it was not.) Rather, they seek an injunction
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requiring, among other things, preparation of an
Environmental Impact Statement. The third assessment is
highly relevant to the ultimate legal question in the case,
namely, the equitable question of whether or not the
district court should issue that injunction. It offers
strong evidence that the project will have no significant,
adverse environmental effects. See supra pp. 6, 7; infra
___ _____ _____
Part II pp. 12-18. It thereby indicates that the relief
sought is unnecessary, that an injunction would not serve
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the public interest, and that one could not justify
injunction-related project delays through reference to
eventual statutorily-related environmental benefits.
Second, the record indicates that remand of the
case to the Service for further consideration of the third
assessment would serve no useful purpose. The assessment
reveals no new environmental harms, nor does it provide
evidence that any already considered harm is more likely
than previously thought. Compare Massachusetts v. Watt, 716
_______ _____________ ____
F.2d 946 (1st Cir. 1983) (requiring development of a
supplementary EIS where new evidence significantly changes
previous factual assumptions). Furthermore, the towns have
not cast any significant doubt on the reliability of the
third assessment's facts or its analysis. Finally, there is
no reason to believe that the Service's further
consideration of this third, Service-commissioned,
assessment would change the mind of a Service that found "no
significant impact" upon the bases of two, less convincing,
analyses. Cf. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766
___ ____ ________________
n.6 (1969) ("[W]e [need not] convert judicial review of
agency action into a ping-pong game.").
Third, the district court considered the third
assessment independently (as have we), without giving the
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benefit of any particular doubt to the agency in light of
any presumed agency expertise, or special legal authority,
to resolve such matters. In this way, it guarded against
what courts have sometimes called "post hoc
rationalization," namely, an effort by agency staff, after
an agency has made a decision, to find supporting reasons
and data that the agency itself, before the event, might
have considered irrelevant or unpersuasive. See Overton
___ _______
Park, 401 U.S. at 419. The risk of "post hoc
____
rationalization" is particularly small in this case, for the
document contains the same kind of analysis that the Service
earlier found persuasive. It differs from the first two
assessments only in that it is more thorough and it
considers in detail mitigation measures of the sort that the
Service had earlier "assume[d]" would be "implemented."
The upshot is that the third assessment is unlike,
say, late developed evidence of significant, previously
unconsidered environmental harm -- evidence that may require
further agency consideration, particularly in a legal
context that offers the environment only procedural
protection. See Watt, 716 F.2d at 952 (requiring
___ ____
preparation of a supplementary EIS). Rather, the third
assessment arises in a legal context in which further
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environmental investigation and additional mitigation
measures may help an agency produce a project that better
meets a substantively protective environmental standard
(i.e., "no significant impact"). The third assessment
provides evidence of increased mitigation and diminished
environmental harm. The third assessment is directly
relevant to the basic question of court-mandated relief. By
itself (and in context) the third assessment indicates that
neither an injunction nor remand to the agency is warranted.
And (as independently reviewed), the assessment comes
unaccompanied with "post hoc rationalization" risks. In
this context, we can find no convincing legal reason why the
district court should not (independently) have considered
the third assessment in reaching its decision not to grant
the towns the relief they requested.
II
The Merits
__________
The basic legal question, on the merits, is
whether or not the Postal Service could lawfully conclude
that its project will not "significantly affect[] the
quality of the human environment." NEPA 102, 42 U.S.C.
4332(2)(C)(i). The district court, applying standards at
least as stringent as those our cases have proposed, see,
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e.g., Sierra Club v. Marsh, 769 F.2d 868, 870-71 (1st Cir.
____ ___________ _____
1985), found the Service's determination lawful. We too
have reviewed the record. We have taken what we described
in Marsh as the "practical approach" to review, avoiding
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verbal formulas, but giving the record the type of scrutiny
for which the circumstances call. In this case, for the
reasons discussed in Part I, that scrutiny, in respect to
the third assessment, has been strict. We have reached the
same conclusion as the district court, namely, that the
record does not show a "substantial possibility" that the
project "could significantly affect the quality of the human
environment." Quinonez-Lopez, 733 F.2d at 2.
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Our conclusions about the record, and our reasons
for affirming the district court's decision, are basically
those the district court itself described in its ninety-five
page opinion, supplemented as follows:
1. Lexington, located just north of the project,
says that the project might injure its environment by
generating additional truck traffic, at least if postal
trucks tend to enter or leave the project from the north.
The basic problem with this argument lies in a record that
indicates significant numbers of postal trucks will not tend
to enter or leave the project from the north. The project
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is just east of Route 128. Trucks may easily drive from
that expressway to the project by way of a road to the
south, and they may then turn left and left again, entering
the project by means of its southern driveway. (See
Appendix for diagrams.) Physical barriers in the road will
prevent trucks from turning left (north) as they leave the
project along this southern driveway or from turning right
into this driveway, should they try to approach the project
from the north.
Lexington points out that there is also a northern
driveway, and it asks, what is to prevent a truck from
approaching the project from the north and entering (or
leaving) the project along this northern driveway? Although
the first two environmental assessments contained diagrams
that showed that the northern entry would do the trucks no
good (for the northern driveway would not give them access
to the truck parking area), the third environmental
assessment contains a slightly different diagram that
suggests that a truck might enter the project through the
northern driveway and drive to the truck parking area.
In our view, however, the third assessment's
northern-driveway-truck-parking-area connection is not
sufficient to show a "substantial possibility" of an adverse
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environmental impact in Lexington. The government, in its
brief, says that the Service "has designated a physical
barrier that will prevent trucks from entering or leaving"
the project "from the North." The Service says, in its
second environmental assessment, that it will enforce a
traffic pattern on Postal Service trucks and contract trucks
so that they will not enter from, or leave, the facility via
the North. The Postal Service's regulations create a
binding obligation to implement "[p]racticable mitigation
measures identified in an environmental assessment." 39
C.F.R. 775.6(a)(7). And, the district court, in its
opinion "expressly rule[d] that the judgment entered . . .
is dependent upon the . .. implementation of the . . .
traffic design plan . . . ." We interpret the district
court's words "traffic design plan" to include a plan that
effectively assures that trucks will not enter or leave the
facility by means of the northern driveway. That being so,
we can find no substantial possibility of an adverse truck
traffic impact in Lexington.
2. Lexington also argues that the Service's
planned improvement of a roadway intersection near Lexington
will mean more traffic traveling through the town, as
drivers will choose the improved route over other, more
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congested, routes. Lexington, however, has produced no
factual data that suggests this possibility is other than
speculative. Nor can Lexington plausibly argue that the
Service should have investigated further and found the
relevant data, for Lexington initially implied that it liked
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the idea of an intersection improvement, not that it opposed
the idea. Lexington wrote the Service that it wanted to
"understand the anticipated benefits of the intersection
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upgrade," and it asked the Service for an analysis of "what
the impact on Lexington's streets would be if [the]
intersection upgrade does not occur." (App. Vol. 2, p. 646,
___
emphasis added). We have found nothing in the record to
suggest that anyone thought the intersection might cause
added-car-traffic harm of the sort that Lexington now
mentions. And, Lexington does not have the right to make
new arguments about this problem at this stage of the
proceeding. Valley Citizens for a Safe Environment v.
__________________________________________
Aldridge, 969 F.2d 1315, 1317 (1st Cir. 1992); Teamsters,
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Chauffeurs, Warehousemen & Helpers Union, Local No. 59 v.
_________________________________________________________
Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992).
_____________________
3. Waltham argues that the project will
significantly and adversely affect a nearby wetland,
basically by reducing the amount of rainwater that would run
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off the site into the wetland. Its expert points to certain
Postal Service figures that, the expert says, indicate that
the project would reduce, by about 25% to 30%, the amount of
water that, during a rainstorm, now runs off the buildings
and onto the wetlands. The third environmental assessment
indicates, however, that rainwater runoff will not decline
significantly.
The third assessment, in responding primarily to
Waltham's earlier claim that the project would discharge too
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much, not too little, rainwater onto the wetlands
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(threatening them with additional pollutants), sets forth a
detailed stormwater management plan, and, in doing so,
discusses the amount of rainwater that will leave the
project. It describes water detention basins that keep, but
then discharge, water by means of what it calls a "flow-
dispersing swale," which discharge will "replicat[e] the
sheet flow occurring in a predeveloped condition." The
plan, it says, includes methods for encouraging
"[g]roundwater recharge." The description indicates that
the project will not affect drainage from the existing roof
area. It adds that water running off the new roof area will
be directed partly to a similar "flow-dispersing swale," and
partly to a "subsurface recharge system" that will
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"replenish the groundwater, avoiding indirect hydrological
impacts on the nearby wetlands and stream." Given this
discussion of the storm water management plan, taken
together with the fact that the district court explicitly
conditioned its judgment "upon . . . implementation of the
amended stormwater management . . . plan," Waltham, its
expert notwithstanding, has failed to show any substantial
likelihood that an environmentally significant lessening of
rainwater runoff will occur.
4. Waltham says that the Service will build the
project in a wetland area, without complying with "wetland
construction" legal requirements. The district court,
however, found to the contrary. The record shows that the
Service collected relevant information about the wetlands.
See 39 C.F.R. 776.5(a). Furthermore, the third assessment
___
says that the project will not involve wetland construction.
The site plans, as far as we understand them, confirm the
assessment's statement. And, Waltham points to no specific
evidence that might refute the statement. Regardless, the
district court explicitly made its judgment "dependent upon
. . . the avoidance of construction in floodplain or
wetlands or the discharge of fill into wetlands."
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5. Waltham says that the Service's proposed
addition to the existing buildings, as described in the
third assessment, is twice the size of that addition
described in the earlier assessments, which fact (Waltham
adds) "raises a number of issues which must be addressed" by
the Service. One problem with this argument lies in our
inability to understand (despite our examination of the
various relevant diagrams) how Waltham reached its "enlarged
building" conclusions. Regardless, Waltham does not
specifically or convincingly explain why any diagrammatic
inconsistency between the earlier and later assessments
would make a relevant legal difference. A change in size
does not automatically mean greater, or different,
environmental effects than the record describes. The third
assessment's environmental analysis, after all, concerns the
(allegedly bigger) building project described in the third
assessment. Thus, the analysis of groundwater runoff, for
example, that we find adequate (for reasons set out at pp.
15-16, supra) also seems adequate in respect to whatever
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"enlarged" building that the third assessment describes.
Waltham's brief, in the portion devoted to its "enlarged
building" claim, refers generally to toxic waste and to the
general appearance of the building. But, it provides
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neither record citations nor specific arguments that could
lead us to conclude that whatever changes it has deduced
from the diagrams make a relevant difference in these, or
other, relevant environmental respects. We therefore cannot
accept its "enlarged building" argument.
6. Waltham mentions the project's impact on
noise. The district court, however, pointed out that the
third assessment thoroughly analyzed the noise problem. The
court concluded that, even without the various mitigation
measures proposed (measures that postal regulations require
the Service to implement, 39 C.F.R. 775.6(a)(7)), the
environment will suffer no significant impact on noise. The
studies support that conclusion. And, Waltham points to no
significantly conflicting evidence.
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III
Procedural Claims
_________________
Waltham objects to several of the district court's
procedural rulings. We shall briefly explain why we find
these objections without legal merit.
1. The district court's decision not to grant the
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injunction was embodied in its grant of the Service's motion
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for summary judgment and its accompanying denial of
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Waltham's converse summary judgment motion. Waltham says
that the district court's own summary judgment rule, Local
Rule 56.1, required the court to grant the Waltham motion.
It points to three parts of the rule:
a. The rule says that a party moving for summary
judgment must attach "a concise statement of
material facts of record as to which the
moving party contends there is no genuine
issue to be tried."
b. The rule adds that the opposing party must
then include "a concise statement of material
facts of record as to which it is contended
that there exists a genuine issue to be
tried."
c. The rule concludes that any fact "set forth"
in the moving party's statement, unless
"controverted" in the opposing party's
____________
statement, "will be deemed for purposes of
the motion to be admitted by opposing
________
parties."
Local Rule, D. Mass. 56.1 (emphases added). Waltham points
out that it attached a long statement of facts to its motion
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for summary judgment, but the Service did not attach a list
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of facts to its opposition. Hence, says Waltham, the court
should have considered its list of facts "to be admitted,"
and those facts, it believes, entitled it to summary
judgment (and the injunction).
The problem with this argument is that the Service
did submit a "concise statement of material facts" that
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(despite Waltham's own opposing statements, and for reasons
set out here and in the district court's opinion) adequately
supported judgment in its favor -- though the Service
physically attached that statement only to its own motion
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for summary judgment without also physically attaching it to
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its opposition to Waltham's motion. The district court held
that the Service's failure also to attach a duplicate of the
document to its opposition made no legal difference (even
though the Service did not literally comply with the rule).
And, that holding makes perfect sense to us. After all, the
Service's error (failing to make an additional copy of a
document already in the record) was highly technical and
nonprejudicial. Waltham, and the court, were fully aware of
the Service's view about the facts. Were one to accept
Waltham's literal interpretation of the local rule, it could
require the district court, nonsensically, to grant both the
____
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Service's motion (which all factual statements adequately
support) and Waltham's conflicting motion. The district
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court has authority to interpret its own local rules in
nontechnical ways and to avoid such results. United States
_____________
v. Diaz-Villafane, 874 F.2d 43, 46 (1st Cir.), cert. denied,
______________ ____________
493 U.S. 862 (1989). The district court's nonliteral
reading of the summary judgment rule, creating an exception
for the present circumstances, falls well within the scope
of that legal authority.
2. Waltham argues that the district court should
have granted its discovery request for "two filing cabinets
full" of material that the Service compiled during the
course of its environmental investigations. The court
denied the request because it accepted the Service's
statement that it had not relied upon any of this material
in reaching any of the here-relevant conclusions. The court
has broad power to control discovery. Santiago v. Fenton,
________ ______
891 F.2d 373, 379 (1st Cir. 1989). In doing so, it can
weigh discovery burdens against the likelihood of finding
relevant material. Mack v. Great Atlantic and Pacific Tea
____ _______________________________
Co., 871 F.2d 179, 186-87 (1st Cir. 1989). We will overturn
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a discovery decision of this sort only when we find it
plainly wrong and substantially prejudicial. Santiago, 891
________
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F.2d at 379; Mack, 871 F.2d at 186. Waltham has not
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provided us with any basis for finding a violation of these
legal standards.
3. Waltham argues that the court should have
ordered the Service to provide it with a document called the
"Berger assessment" -- a document that apparently discusses
the environmental effects of choosing other sites for the
new facility. Waltham, however, has not convincingly
explained why the document is relevant to the legal issues
before us in this case. And, it provides us with no basis
for finding that the district court violated any of the
legal standards described in the preceding paragraph.
4. Waltham asked the district court not to admit
in evidence a letter from the Service proposing to pay
Waltham $1.6 million for roadway improvements. The district
court did not rule on Waltham's claim that the letter was
not properly authenticated. The letter, in our view, has no
significance. Other documents, properly admitted, say that
the Service was willing to pay Waltham $1.5 million for
roadway improvements. And, we do not see how the $100,000
difference (between the $1.6 million and $1.5 million
offers) could make any difference to the outcome of this
case. We have not considered the $1.6 million letter in
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reaching our decision. Insofar as the district court may
have done so (say, in respect to traffic impact), any error
is harmless. United States v. Pisari, 636 F.2d 855, 859
______________ ______
(1st Cir. 1981).
5. Waltham has made various claims to the effect
that the Postal Service has acted in "bad faith." We have
not found in the record, however, specific evidence of "bad
faith" sufficient to invalidate the Service's finding in
respect to the lack of adverse environmental impact or to
demonstrate a violation of any other relevant law that
Waltham has mentioned.
IV
Adequate Consultation
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1. The law requires the Service to consult with
local authorities about its project. The Intergovernmental
Cooperation Act ("ICA"), for example, says that
[t]o the extent possible, all . . .
local viewpoints shall be considered in
planning development programs and
projects . . . .
ICA 401(c), 31 U.S.C. 6506(c).
An Executive Order, elaborating this requirement,
says
[f]ederal agencies shall provide
opportunities for consultation by
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elected officials of those State and
local governments . . . that would be
directly affected by . . . direct
Federal development . . . .
Moreover,
[f]or those cases where the concerns
cannot be accommodated, Federal
officials shall explain the bases for
their decision in a timely manner.
Exec. Order No. 12,372, 47 Fed. Reg. 30,959 (1982).
Waltham claims that the Service violated these
legal obligations. It concedes that Service employees met
with Waltham officials many times. It does not deny, for
example, the accuracy of an affidavit that refers to such
meetings in October 1989, January, March, June (two), July,
September, October, November and December 1990, and March
and May 1991. But, says Waltham, all pre-May 1990 meetings
concerned other possible project sites, and all post-May
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1990 meetings took place only after the Service had
developed a "bureaucratic commitment" to the present site --
which fact, in Waltham's view, makes the post-May 1990
meetings irrelevant.
In our view, neither the Act nor the Order
requires a federal agency to begin consultations before the
agency makes any commitment to a particular project or takes
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any steps towards carrying out such a project. Nothing in
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the Act or Order suggests an intent to integrate federal,
state, and local bureaucracies to the extent that any such
interpretation would require. Nor does the language of the
Act or Order suggest an intent to give state or local
officials the right to veto federal projects, where, say,
speed is important or practical considerations indicate that
a degree of pre-consultation federal bureaucratic activity
is desirable. Rather, the relevant statutory language
simply requires "consider[ation]" of "local viewpoints"
during the "planning" stages of a project. In these
respects it is quite different from the language of, say,
NEPA, a statute that insists that "a detailed statement by
the responsible official on the environmental impact of the
proposed action" be included in "every recommendation or
report on proposals for . . . major Federal actions
significantly affecting the quality of the human
environment," that is, at the time when the decision to
which NEPA obligations attach is made. NEPA 102, 42
U.S.C. 4332(C)(i); see also Watt, 716 F.2d at 952.
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With these provisions in mind, we have examined
the record. We find the record indicates that the Service
provided meaningful consultation, considered local points of
view, and made reasonable efforts to accommodate local
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concerns. Publication of the first environmental assessment
in May 1990 did not preclude subsequent, meaningful,
consultation, consideration, and accommodation. The
development of further assessments, the changes subsequently
made to mitigate potentially adverse environmental effects,
and other related changes, all show that the Service
listened to local viewpoints and made reasonable
accommodation efforts. Waltham strongly states the
contrary, but it does not point to record evidence
sufficient to show either a lack of meaningful consultations
or a failure to take local points of view into account,
whether those consultations and accommodations took place
before, or only after, May 1990.
2. Waltham says that the Service has violated the
Executive Order (or the Act) because the project will
diminish local tax revenues by $560,000, and the Service did
not adequately address these tax consequences. We are
willing to assume, for argument's sake, that the Executive
Order imposes upon the federal government an obligation,
legally enforceable in present circumstances, to make
"efforts to accommodate" local concerns and "to explain the
bases for their decision" when they do not accommodate local
concerns. But still, the Executive Order would not prohibit
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the federal government from removing local property from
state and local tax rolls. It would simply require the
government to have a sensible, understandable reason for
doing so. In this case, the adverse local tax consequences
understandably flow from the federal government's need for a
new postal facility and its decision to build that facility
in Waltham. More importantly, the Service did consider the
tax consequences of its action. The initial environmental
assessment identifies the issue and says that the Service
had "agreed to provide infrastructure improvements in lieu
of taxes," as does the second assessment. Waltham points to
no specific evidence that might show, in this respect, a
violation of the Act or Order.
3. Waltham makes a similar complaint about the
Service's consideration of zoning issues. Both the first
and second environmental assessments, however, discuss
zoning issues. The assessment notes that the new facility
would technically be a nonconforming use, but that it would
"not significantly change the existing land use from an
aesthetics perspective" and that the previous owner's use of
the property was similar to the Service's proposed use.
Waltham has not pointed to any specific zoning-related
problem that might show a violation of the Act or the Order.
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4. Lexington points to Postal Service regulations
that require the Service to notify it of any proposed
environmental assessment before the Service makes that
assessment. 39 C.F.R. 775.7(b), 775.10(a). Lexington
adds that it did not receive notice prior to publication of
the first environmental assessment in May 1990. Assuming
(as did the district court) for summary judgment purposes
that this is so, the notice failure still does not make a
significant legal difference. That is because the Service,
after May 1990, provided Lexington with an adequate
opportunity to comment, particularly about the potential
traffic problems that concerned the town. And, subsequent
to May 1990 the Service prepared additional environmental
assessments and consulted with Lexington. Because
meaningful consultation subsequently took place, any notice
violation, in the district court's view, was harmless and
did not warrant an injunction. The record adequately
supports the conclusion that any such violation would not
significantly affect the quality of the environment.
V
The Clean Water Act
___________________
Waltham argues that the Service has violated the
Clean Water Act, 33 U.S.C. 1342, 1344, by failing to
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obtain two necessary permits: 1) a permit that allows the
discharge of material onto wetlands and 2) a permit that
allows the discharge of pollutants. We do not believe the
Clean Water Act requires the Service to obtain the first
permit because the third assessment makes clear that there
will not be sufficient discharge of material onto wetlands
to trigger the permit requirement. See pp. 16-17, supra.
___ _____
The Service concedes that it needs the second permit, and it
is in the process of obtaining it. The district court
specified that its "judgment . . . is dependent upon the
issuance of [that] permit." We therefore see no need for an
injunction. Weinberger v. Romero-Barcelo, 456 U.S. 305,
__________ ______________
316, 320 (1982); United States v. Metropolitan Dist. Comm'n,
_____________ _________________________
930 F.2d 132, 135 (1st Cir. 1991).
VI
Conclusion
__________
We have found none of appellants' arguments of
sufficient legal merit to undermine the district court's
ultimate determination. We find any remaining arguments
without legal merit.
For these reasons, the judgment of the district
court is
Affirmed.
________
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NOTE: See Slip Opinion for Appendix.
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