of the Comptroller's detailed application procedure, supra, and Mr. DeShazo's conclusions relating to the effect of the proposed new bank on the area, the court can only conclude that all these factors were properly taken into account in the Comptroller's decision.
Finally, from the material submitted by all parties, the court recognizes the vigorous efforts of the State of Florida, Dade County, and local private and public agencies to marshal their resources and organize a plan to protect the area from further ecological degradation. The court also notes that appropriate state agencies have the authority to impose a moratorium on all building and development in the area which may be harmful to the environment.
The defendants vigorously argue that proper jurisdiction for this review lies in the United States Courts of Appeals since the acquisition of the new bank by a registered bank holding company had to be approved by the Federal Reserve Board before the Comptroller could issue his approval. The defendants contend, therefore, the case of Whitney National Bank v. Bank of New Orleans and Trust Co., 379 U.S. 411, 85 S. Ct. 551, 13 L. Ed. 2d 386 (1965), controls here and plaintiffs must raise their objections before the Federal Reserve Board and, thereafter, before the appropriate Court of Appeals. This court disagrees.
It is well settled that the actions of the Comptroller of the Currency are subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 701. See Pitts v. Camp, 411 U.S. 138, 140, 93 S. Ct. 1241, 1243, 36 L. Ed. 2d 106 (1973). Jurisdiction therefore certainly lies in this court to review his actions. 28 U.S.C. §§ 1331, 2201-02. See Pitts v. Camp, supra ; Wood County Bank v. Camp, 348 F. Supp. 1321 (D.D.C. 1972), reversed on other grounds, 160 U.S. App. D.C. 149, 489 F.2d 1273 (1973).
In Whitney, plaintiff banks were concerned with the acquisition of a new national bank in an adjoining county by a holding company whose reorganization was being used as a device to circumvent Louisiana's ban on branch banking outside of a bank's home-office county. Plaintiffs there were not concerned with the Comptroller's creation of the new national bank, but rather with the bank's acquisition by the newly-created holding company for the purpose of avoiding the branch banking ban. However, plaintiffs chose to challenge the holding company's acquisition by an attack on the Comptroller in the federal district court. The Supreme Court found that the plaintiffs were in reality attempting to challenge the Board's decision, 379 U.S. at 418-419, 85 S. Ct. 551, 13 L. Ed. 2d 386 and held that plaintiff banks' complaint tendered issues cognizable only by the Board and, therefore, reviewable only by the appropriate Court of Appeals.
Furthermore, Whitney is pre-NEPA. NEPA creates new duties for both the Federal Reserve Board and the Comptroller.
Indeed, counsel for the defendants readily conceded in oral argument that the Comptroller's actions are not immune from NEPA. Plaintiffs here complain that the Comptroller failed to comply with his duties under NEPA. They, therefore, raise questions properly before this court.
Billings v. Camp, 2 E.L.R. 20687 (D.D.C. Oct. 4, 1972); S.C.R.A.P. v. United States, 346 F. Supp. 189, 197 (D.D.C. 1972).
APPLICABILITY OF NEPA
Having found proper jurisdiction in this matter, the court will now consider the core question raised by plaintiffs' complaint; that is, whether the Comptroller's action in preliminarily approving the charter for the proposed new bank violated the mandates of NEPA. It must first be pointed out that NEPA applies to all federal agencies, including the Comptroller of the Currency.
The Act requires the Comptroller to take certain preliminary steps before making any decision which may affect the environment. These steps are clearly outlined in Section 102(2) of the Act.
Plaintiffs in their complaint argue that the Comptroller is required to prepare a detailed environmental impact statement pursuant to 102(2)(C) of the Act since the Comptroller's decision is a "major" federal action which "significantly" affects the environment. This court cannot make a de novo determination on these questions. Rather, "the responsible federal agency has the authority to make its own threshold determination as to each in deciding whether an impact statement is necessary." Hanly v. Mitchell, 460 F.2d 640, 644 (2d Cir. 1972) (hereinafter Hanly I).
Although the court does not agree with the defendant Comptroller's argument that this action is not a "major" federal action
it cannot quarrel with his conclusion that granting this charter will not "significantly" impact the environment around south Dade County.
Plaintiffs leave to pure speculation resolution of the question whether chartering this bank will accelerate the rate of pollution in the area. They provide no data on an individual bank's effect on industrial development in an area, let alone on its affect on the environment. Plaintiffs would have this court and the Comptroller speculate that the bank possibly will make development loans in the area which might harm the environment. Furthermore, the existence of strong local and state laws protecting the environment
and the rising consciousness on environmental matters in south Dade County suggest that existing factors would intervene to prevent the bank from financing a project which might cause ecological harm to the area.
Certainly, the burden is on the agency to prove there will be no environmental impact as a result of its actions under 102(2)(C). S.C.R.A.P. v. United States, supra. But the facts of this case indicate only that the federal action will possibly allow others to set into motion projects which possibly will affect the local environment. In considering the effect of its actions for purposes of § 102(2)(C), it would seem that an agency is not required to let its imagination run wild as to whether there will be any environmental impact. "NEPA requires predictions, but not prophecy" in order to draft a meaningful impact statement under 102(2)(C). Scientists Institute for Public Information, Inc. v. AEC, 156 U.S. App. D.C. 395, 481 F.2d 1079. The court has been unable to find any authority which would impose such an obligation on the agency.
This case is unlike other 102(2)(C) cases in which the federal action directly triggered forces which had a certain impact. See Davis v. Morton, 469 F.2d 593 (10th Cir. 1972); Silva v. Romney, 342 F. Supp. 783 (D. Mass. 1972); City of New York v. United States, 337 F. Supp. 150 (E.D.N.Y. 1972); S.C.R.A.P. v. United States, supra. Thus, "whatever the theoretical environmental impact of [the proposed federal action] may be, in this case the actual impact appears to be minimal and adequately accounted for in the [government] memorandum." Hanly v. Mitchell, supra, 460 F.2d at 646.
The Comptroller had no evidence before him of any actual environmental impact; he could just as easily speculate that the bank would finance developments that would be beneficial to the environment. Indeed, a cursory review of the Florida environmental and statutory material brought to the court's attention indicates a need for banking facilities to carry out the local purpose of these statutes. Furthermore, as noted above, the great bulk of the development capital used in the area comes from outside sources, a factor which further dilutes the likelihood that the bank will have any significant effect. The court finds no reason to upset the Comptroller's conclusion that urbanization will continue to expand southward in Dade County at its present rate irrespective of the creation of another national bank in its path.
Plaintiffs also argue, however, that the Comptroller's five-page memorandum was not prepared in accordance with § 102(2)(A), (B) and (D) of NEPA. That is, it does not disclose the "systematic, inter-disciplinary approach",
the "methods and procedures"
to "insure that presently unquantified environmental amenities may be given appropriate consideration in decision making along with economic and technical considerations",
or a description of "alternatives to recommended courses of action in any proposal".
In short, plaintiffs conclude that the five-page memorandum is not a reviewable "environmental record".
Consequently, they argue the Comptroller's order must be vacated and the cause must be remanded to the Comptroller for considerations consistent with the requirements of NEPA.
First, NEPA does not dictate the precise form of the record which must be made at the agency level. Hanly v. Kleindienst, 471 F.2d 823, 835 (2d Cir. 1972) (Hanly II). Its thrust is to force each agency to consider the effect of its actions as these actions relate to the environment. Consequently, it imposes on each agency the duty to set up procedures which will assure a fair and informed preliminary decision. Id. at 834-836. In the Hanly I and II cases, the court concluded that a single-page memorandum was sufficient to support the General Service Administration's determination that a proposed office building would have no adverse affects on the environment. The court found that the memorandum, although admittedly "terse", adequately accounted for all relevant environmental factors, 460 F.2d at 646-647; it reached this conclusion despite an apparent intention in the second Hanly decision to establish a more formal preliminary procedure. See 471 F.2d at 837 (Friendly, C.J., dissenting).
Nevertheless, the court here must squarely face the fact apparent from the record that the Comptroller has not utilized the formal procedural mechanism contemplated by NEPA in making his decision. Notwithstanding his failure to do so, however, the five page memorandum shows that the Comptroller has considered all relevant environmental factors and has reached a fair and informed preliminary decision under NEPA.
Consequently, NEPA does not compel the court to vacate the Comptroller's order.
In City of New York v. United States, supra, Judge Friendly confronted a similar problem in deciding whether to vacate an Interstate Commerce Commission order authorizing abandonment of a small railroad line. There, however, the Commission totally failed to consider environmental factors
in a proceeding which it conceded raised "a substantial question of possible damage to the environment", 337 F. Supp. at 159, n. 11. After noting that "we are not eager to remand for what may well be a largely ritualistic act," id. at 159, the court did remand the application to the Interstate Commerce Commission concluding that "such considerations do not justify the Commission's disregard of the law," id. at 160. The court, however, refused to vacate the Commission's order:
"[such] action is not compelled. In reviewing the Commission's action, we sit as a court with equity powers, and as such 'may adjust relief to the exigencies of the case in accordance with the equitable principles governing judicial action. The purpose of judicial review is consonant with that of the administrative proceeding itself, -- to secure a just result with a minimum of technical requirements.'"