Case 58

National Center for Preservation Law v. Landrieu, 496 F. Supp. 716 (D.S.C.), aff'd per curiam, 635 F.2d 324 (4th Cir. 1980).

Plaintiffs brought suit to enjoin the city of Charleston, South Carolina, from building a hotel and convention center complex in the city's historic district, an area listed in the National Register of Historic Places. The project, the Charleston Center, was to be funded in part with an urban development action grant from the Department of Housing and Urban Development (HUD) and a public works grant from the Economic Development Administration (EDA) of the Department of Commerce. HUD, acting as the "lead agency," had delegated to the city its responsibilities under the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). The city thus became the "Federal official" and prepared an environmental impact statement (EIS) under NEPA and sought the comments of the Advisory Council on Historic Preservation as required by Section 106 of NHPA.

As a result, the city, the Council, HUD, EDA, and the State Historic Preservation Officer (SHPO) entered into a Memorandum of Agreement (MOA) under the Council's regulations implementing Section 106. EDA did not delegate its responsibilities under these statutes but participated in the NEPA and NHPA processes as a "cooperating agency." During the pendency of the city's grant application to EDA a United States Senator from South Carolina wrote to EDA and the Council in support of the project.

Plaintiffs alleged, among other things, that HUD's delegation to the city of responsibilities for environmental and historic review was improper, the MOA was invalid, the Council was not allowed an opportunity to comment on the project, and the Council had violated its regulations in conducting the Section 106 process.

The district court first discussed the appropriate standard of review and concluded that judicial review should be based on the administrative record already in existence. 496 F. Supp. at 724.

Next, the court held that HUD's delegation to the city of HUD's substantive responsibilities under NEPA and NHPA was authorized by Section 104(h) of the Housing and Community Development Act. Under such delegation, the applicant for the grant, rather than HUD, must act as the "Federal agency" under NEPA and as the "agency official" under NHPA and the Council's regulations. Id. at 739. HUD's responsibilities are limited to determining that the applicant has followed all of the procedural requirements of the two acts and their attendant regulations. Id. at 731, 740. EDA's involvement as "cooperating agency" was proper. Id. at 732, 740.

Third, the court upheld the city's environmental impact statement as adequate. The EIS discussed the effect of the project on historic structures in the area and incorporated the MOA, which explored alternatives and established measures to mitigate the adverse effects of the project on the historic area. Id. at 736.

Fourth, the court held that the Council's regulations do not violate NHPA. NHPA does not specify the method by which the Council is to comment and gives the Council the authority to promulgate regulations to implement Section 106. The method by which the Council defines its opportunity to comment and promulgates its regulations is left entirely to the Council's discretion. Id. at 742.

The court further held that the Council had complied with its Section 106 regulations. Under the regulations, the MOA was properly executed by the Executive Director and ratified by the Vice Chairman. The MOA constituted the comments of the Council for purposes of NHPA. The Vice Chairman was authorized to ratify the MOA instead of placing the matter before the full Council membership for consideration. Id. at 741.

Finally, the court rejected plaintiffs' allegations that the defendants' decisions had been influenced improperly by political pressure. The court found that there is nothing improper in elected officials expressing their views on Federal projects to Federal officials or in attempting to secure federally funded projects for their constituents. Id. at 745.

The court concluded by noting that the Federal statutes do not empower the court to pass on the merits of a project. The court's role is to determine whether the Federal agencies have complied with the necessary procedural requirements. Id. at 745-46.

The Fourth Circuit affirmed the district court's decision per curiam.

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