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NATIONAL TRUST v. DEPARTMENT OF STATE

April 14, 1993

NATIONAL TRUST FOR HISTORIC PRESERVATION, Plaintiffs,
v.
DEPARTMENT OF STATE, et al., Defendants.


GREENE


The opinion of the court was delivered by: HAROLD H. GREENE

 Defendants have moved to dismiss on the ground that the Foreign Missions Act, 22 U.S.C. § 4301, et seq. expressly preempts all other federal statutes. Moreover, even if NEPA and NHPA are not preempted, the defendants argue, the statutes are by their own terms inapplicable.

 I

 The Republic of Turkey ("Turkey") owns a chancery building at 2523 Massachusetts Ave., N.W., in the District of Columbia. While the chancery itself is not a historic landmark, it is located within two overlapping historic districts. In 1988, Turkey submitted an application to the Department of State requesting permission to demolish the existing chancery and build a larger one. Pursuant to the Foreign Missions Act, the application was sent first to the Director of the Office of Foreign Missions, within the Department of State, who had 60 days to veto or limit the proposal. 22 U.S.C. § 4305(a)(1)(A). No veto was issued. The application travelled next to the District of Columbia Foreign Missions-Board of Zoning Adjustment ("FM-BZA") which reviewed and denied it because of "the excessive size of the new structure" relative to the other structures in the historic district. FM-BZA Order, October 14, 1988 at 1. *fn1"

 In 1990, Turkey submitted a revised proposal which downsizes the new chancery. Again the Director of Foreign Missions declined to exercise his veto power. *fn2" Nor did he refer the matter to the Advisory Council on Historic Preservation or prepare an Environmental Impact Statement ("EIS"). The matter was then forwarded to the FM-BZA which ultimately concluded that the new building design corrected the excessive size and met the six criteria necessary for approval in 22 U.S.C. § 4306(d). *fn3"

 Accordingly, the FM-BZA granted Turkey permission to proceed with the chancery expansion. Shortly thereafter two citizen groups and the National Trust for Historic Preservation filed separate suits, later consolidated, challenging the permit approval.

 II

 Recognizing that the District of Columbia has the greatest number of foreign missions, Congress included a provision specifically addressing foreign mission issues in the District. See 22 U.S.C. § 4306. Review of the legislative history reveals congressional debate regarding the proper balance between local zoning interests and competing federal interests in controlling foreign missions. H.R. Conf. Rpt. No. 693, 97th Cong. 2d Sess. (1982) at 40-41. However, while Congress attempted to be sensitive to issues of home rule, see generally S. Rep. No. 329, 97th Cong., 2d Sess. 40-48, the compromise ultimately worked out by the conference committee provided for a dominant federal role in awarding most benefits to foreign missions. Because the resolution of chancery issues could impact United States interests abroad, Congress was reluctant to leave such issues to the good sense and skills of local officials. S. Rep. No. 283, 97th Cong., 1st Sess. 11-12 (1981); H.R. Rep. No. 102, 97th Cong., 1st Sess., pt. 1 at 34 (1981).

 The declaration of policy sweeps with a wide federal brush to include within the ambit of congressional control many chancery issues such as "the permissible scope of their activities and the location and size of their facilities." 22 U.S.C. § 4301(a). The zoning laws of the District of Columbia were left intact only to the extent that they were consistent with the Foreign Missions Act. H.R. Conf. Rep. No. 693, 97th Cong., 2d Sess. 43; see 22 U.S.C. § 4306(j).

 Moreover, Congress wanted to ensure expeditious resolution of chancery matters. To this end, Congress sought to avoid overlapping procedures which "virtually insured that the Federal interest in providing adequate facilities for foreign missions will be frustrated." H.R. Rep. No. 102, 97th Cong., 1st Sess., pt. 1 at 36 (1981). Thus, the primacy of the FM-BZA's determinations was affirmed in section 4306(c)(3); "such final determination shall not be subject to the administrative proceedings of any other agency or official." The Foreign Missions Act requires chancery issues to be resolved within six months of filing the application with the FM-BZA. 22 U.S.C. § 4306(c)(3).

 The procedure for obtaining permission to make structural changes to foreign missions is as follows. Under section 4305, an applicant must first notify the Director of the Office of Foreign Missions of the chancery-related proposed action. *fn4" The Director has 60 days in which to deny or limit the proposed action. If, after 60 days, the Director has not notified the foreign mission that its proposal is denied, the foreign mission is free to submit the application to the FM-BZA pursuant to section 4306. *fn5"

 In deciding whether to grant or deny an application, the FM-BZA considers six criteria, including historic preservation. *fn6" Any other provisions of law "applicable to the location, replacement or expansion of real property in the District of Columbia . . . [apply] . . . to chanceries only to the extent that they are consistent with [the Foreign Missions Act]." Id. at § 4306(j).

 In this consolidated action, the Court considers the interplay between the Foreign Missions Act and other federal and local laws.

 As an initial matter, the Court finds that it has jurisdiction to review the Director's determination. It is well-established that there is a presumption of judicial review absent "'clear and convincing [legislative] evidence' to the contrary." Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967); see also Doe v. Casey, 254 U.S. App. D.C. 282, 796 F.2d 1508, 1514-1517 (D.C. Cir. 1986) (judicial review precluded if there is no law to apply.). The Court is not persuaded that Congress intended to insulate decisions made under the Foreign Missions Act from judicial review. Although the Act endows the Director with discretionary power as to whether to grant or deny a benefit, it does not give him discretion as to whether or not to comply with NEPA and NHPA in acting under the Foreign Missions Act. Krueger v. Morton, 176 U.S. App. D.C. 233, 539 F.2d 235, 239 (D.C. Cir. 1976).

 IV

 Summary judgment is appropriate if there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial -- whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The non-moving party is given the benefit of all favorable factual inferences. Washington-Baltimore Newspaper Guild v. Washington Post, Co., 621 F. Supp. 998, 1001 (D.D.C. 1985). At the same time, Rule 56 places a burden on the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 As indicated, plaintiffs have moved for summary judgment alleging noncompliance by the State Department with the provisions of both NEPA and NHPA. Each statute is addressed in turn below.

 V

 NEPA requires federal agencies undertaking "major federal actions" which are likely to "significantly affect the human environment" to take a hard look at the environmental effect of the proposed project. 42 U.S.C. § 4332(C); Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21, 49 L. Ed. 2d 576, 96 S. Ct. 2718 (1976). While NEPA does not mandate any particular result, it requires the agency to follow particular procedures in its decision-making process. As part of this hard look, the agency must first prepare an environmental assessment to determine how great an effect the proposed action will have on the environment. If the agency makes a "finding of no significant impact," no additional studies are necessary. 40 C.F.R. § 1501.4(a)-(b), 1508.9. However, if the agency determines that the proposed action will have a significant impact, it must prepare an EIS to consider more fully the consequences of the proposed action, any adverse environmental effects, possible alternatives to the proposed action, and mitigating measures. 42 U.S.C. § 4332(C).

 In sum, the complex requirements of NEPA are not triggered unless the Director's decision not to veto Turkey's proposal properly is characterized as a "major federal action significantly affecting the quality of the human ...


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