City of Waltham v. United States Postal Service

[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.

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,

Aldrich, Senior Circuit Judge,

and Selya, Circuit Judge.

John B. Cervone, III, Assistant City Solicitor, with whom

Patricia A. Azadi, Assistant City Solicitor, was on brief for City of

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

United States Postal Service.

December 2, 1993

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BREYER, Chief Judge. In November 1990, the United

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

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

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

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

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

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.

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

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

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,

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

much, not too little, rainwater onto the wetlands

(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

"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

injunction was embodied in its grant of the Service's motion

for summary judgment and its accompanying denial of

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

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

(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

for summary judgment without also physically attaching it to

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

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

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

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

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

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

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.

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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