Case 1:22-cv-03442 Document 1 Filed 04/28/22 Page 1 of 49
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`22-cv-3442
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`Plaintiff,
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`v.
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`NATURAL RESOURCES DEFENSE
`COUNCIL, INC.; and INTERNATIONAL
`UNION, UNITED AUTOMOBILE,
`AEROSPACE AND AGRICULTURAL
`IMPLEMENT WORKERS OF AMERICA
`(UAW),
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`LOUIS DEJOY, in his official capacity as
`U.S. Postmaster General; and U.S. POSTAL
`SERVICE,
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` Defendants.
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`COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
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`INTRODUCTION
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`1.
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`This case is about the U.S. Postal Service’s failure to comply with the National
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`Environmental Policy Act (NEPA) in its acquisition of thousands of Next Generation Delivery
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`Vehicles. The Postal Service’s Final Environmental Impact Statement (EIS) supporting that
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`acquisition is deficient at every step. The Postal Service signed a contract to purchase vehicles
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`before undertaking environmental review. It failed to evaluate reasonable alternatives. It made
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`irrational assumptions about the future prices of gasoline, electricity, and electric vehicles. It
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`committed to buying a new fleet of gas-powered vehicles without considering greenhouse gas
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`emissions. And when commenters—including the Environmental Protection Agency (EPA) and
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`the Council on Environmental Quality (CEQ), two fellow government agencies—pointed out
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`Case 1:22-cv-03442 Document 1 Filed 04/28/22 Page 2 of 49
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`these errors, the Postal Service quickly doubled down in a flawed Record of Decision (ROD)
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`based on the woefully inadequate EIS.
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`2.
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`In light of these failures, plaintiffs Natural Resources Defense Council, Inc.
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`(NRDC) and the International Union, United Automobile, Aerospace and Agricultural
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`Implement Workers of America (UAW) challenge the U.S. Postal Service’s final EIS for
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`Purchase of Next Generation Delivery Vehicles. See 87 Fed. Reg. 994 (Jan. 7, 2022) (notice of
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`availability).
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`3.
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`The Postal Service owns and operates a fleet of roughly 212,000 delivery
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`vehicles, most of which were designed and built specifically for the Postal Service. These
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`purpose-built vehicles have exceeded their expected service lives, average over $5,000 per
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`vehicle in annual maintenance costs, and lack basic features such as airbags and anti-lock brakes.
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`Shifting delivery needs, including increases in parcels and decreases in letter volume, also no
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`longer match what the vehicles were designed for. As a result, the Postal Service has decided to
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`replace this aging fleet with new delivery vehicles.
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`4.
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`Replacing the Postal Service fleet is a historic opportunity to put electric vehicles
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`(EVs) and related charging infrastructure in every community in the country. The transportation
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`sector accounts for the largest share of greenhouse gas emissions in the United States. Vehicles
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`with internal combustion engines also emit large quantities of other air pollutants such as
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`nitrogen oxides, which contribute to the formation of both particulate matter pollution and
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`ground-level ozone, the main ingredient in smog. Investing in EVs would substantially mitigate
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`the harmful pollution caused by the Postal Service’s operations.
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`5.
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`The Postal Service began the process of replacing its aging delivery vehicle fleet
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`when it issued a request for information in January 2015. It then ordered prototypes based on
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`manufacturers’ bids for internal combustion, hybrid, and plug-in electric vehicles. And on
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`February 23, 2021, it announced that it had selected Oshkosh Defense (“Oshkosh”) for a ten-year
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`contract to produce up to 165,000 new vehicles, beginning in 2023. At that time, the Postal
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`Service provided Oshkosh with an initial $482 million task order covering February 2021 to
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`August 2023. Some of that funding is designated for outfitting a new assembly plant. In June
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`2021, Oshkosh publicly announced that it will open a dedicated facility in South Carolina to
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`produce new vehicles for the Postal Service.
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`6.
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`After issuing and funding the vehicle contract, the Postal Service belatedly began
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`to evaluate the environmental impacts of its new vehicle acquisition under NEPA. The Postal
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`Service issued a draft EIS on August 26, 2021. 86 Fed. Reg. 47,662 (Aug. 26, 2021). The draft’s
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`preferred alternative was to purchase up to 90% internal combustion vehicles, and a minimum of
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`10% EVs, over ten years. Based on an assumption that an EV designed specifically for the Postal
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`Service would have a range of 70 miles on a single charge, the EIS projected that all but 12,500
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`routes, or about 5% of total routes, could be served by EVs. The draft considered and rejected all
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`commercially available “off the shelf” EVs, reasoning that because they were all left-hand-drive
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`vehicles, they could not support curb-side delivery. The draft did not consider impacts from the
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`production, as opposed to the operation, of the Postal Service’s custom-built vehicles. Likewise,
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`the draft did not disclose that the vehicles would be produced in South Carolina or consider
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`impacts related to the location of production.
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`7.
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`Public comments poured in identifying flaws in the Postal Service’s analysis,
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`including from Plaintiffs. Plaintiffs criticized the Postal Service for missing an opportunity to
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`increase the number of EVs in the fleet by guaranteeing that only 10% of new delivery vehicles
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`will be electric. Plaintiffs objected to the draft for failing to consider reasonable alternatives,
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`using obsolete data, ignoring the latest EV technology advancements, inflating costs, and
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`misrepresenting benefits. Plaintiffs faulted the Postal Service for failing to examine the impacts
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`or alternatives associated with production of the new fleet, including the selected contractor’s
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`decision to create a new production facility for these vehicles. Plaintiffs explained that the Postal
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`Service’s plan would cause undisclosed and unexamined adverse environmental and
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`socioeconomic impacts and proposed specific alternatives to reduce those adverse impacts.
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`8.
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`EPA also commented on the draft and found that it was “inadequate and
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`preclude[d] meaningful consideration of the proposed action and alternatives.” EPA identified
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`and explained in detail specific deficiencies in the Postal Service’s selection and analysis of
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`alternatives, economic analysis, air pollutant emission calculations, and consideration of
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`environmental justice. EPA directed the Postal Service to address these deficiencies in a new
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`draft EIS and to make the new draft EIS available for public comment.
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`9.
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`Despite these and other comments critical of the draft, the Postal Service issued
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`its final EIS on January 7, 2022. See 87 Fed. Reg. 994 (Jan. 7, 2022). The final EIS again
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`selected the 90% maximum gas-powered purchase as the preferred alternative. The Postal
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`Service’s analysis concluded that the 100% EV alternative would cost $2.3 to $3.3 billion more
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`than the preferred alternative. The final EIS made only minimal revisions to the draft, and the
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`Postal Service failed to meaningfully respond to substantive comments.
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`10.
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`After reviewing the final EIS, EPA concluded that the final EIS “remain[ed]
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`seriously deficient,” stated that its “concerns with the draft EIS were not adequately addressed,”
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`and found that the EIS was “inconsistent with the requirements of NEPA.” EPA again directed
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`the Postal Service to prepare a supplemental EIS to address these flaws. CEQ, which is tasked
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`with implementing NEPA across the entire federal government, echoed the request for a
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`supplemental EIS and noted that if the Postal Service did not correct the deficiencies through a
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`supplemental EIS that “the Federal courts may compel USPS to alter course.”
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`11.
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`UAW also submitted comments to the Postal Service after reviewing the final
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`EIS. UAW’s comments on the final EIS highlighted how the Postal Service had provided
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`internally inconsistent and illogical justifications for refusing to consider the impacts and
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`alternatives that UAW identified in its comments on the draft EIS. UAW also advised the Postal
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`Service that it cannot lawfully refuse to consider impacts from the production of the vehicles the
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`agency is causing to be built. However, the Postal Service explicitly refused to consider UAW’s
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`comments on the final EIS.
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`12.
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`On February 23, 2022, the Postal Service issued a ROD based on and
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`incorporating the final EIS, which the Postal Service chose not to revise. 87 Fed. Reg. 14,588,
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`14,589 (Mar. 15, 2022). The ROD included the Postal Service’s responses to EPA’s comments
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`on the final EIS, but did not include any response to UAW’s comments on the final EIS.
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`13.
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`The Postal Service’s decision is based on an unlawfully deficient environmental
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`analysis conducted after the Postal Service had already decided on a course of action. If allowed
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`to stand, it would lock in decades of fossil fuel consumption and pollution in communities across
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`the United States, resulting in higher maintenance and fuel costs, worse air quality, and increased
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`climate impacts. If the Postal Service undertook a supplemental environmental analysis, it could
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`reach a different conclusion and instead invest in much-needed EVs that would reduce air
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`pollution, mitigate the causes of climate change, provide union jobs, and save the Postal Service
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`money.
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`14.
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`Plaintiffs therefore seek a declaration that the Postal Service’s EIS violated
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`NEPA, vacatur of the EIS and the ROD, and injunctive relief preventing the Postal Service from
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`acquiring new vehicles under the contract with Oshkosh until it complies with NEPA.
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`JURISDICTION AND VENUE
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`15.
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`This case arises under NEPA, 42 U.S.C. §§ 4321-4347; CEQ’s NEPA regulations,
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`40 C.F.R. pts. 1500-1508; and the Postal Service’s NEPA regulations, 39 C.F.R. pt. 775.
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`16.
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`The Postal Reorganization Act (PRA) provides, “except as otherwise provided in
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`this title or insofar as such laws remain in force as rules or regulations of the Postal Service, no
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`Federal law dealing with public or Federal contracts, property, works, officers, employees,
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`budgets, or funds, including the provisions of chapters 5 and 7 of title 5, shall apply to the
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`exercise of the powers of the Postal Service.” 39 U.S.C. § 410(a).
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`17.
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`The PRA “does not exempt the [Postal] Service from NEPA and . . . the [Postal]
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`Service must comply with the requirements of that statute.” Chelsea Neighborhood Ass’ns v.
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`U.S. Postal Serv., 516 F.2d 378, 386 (2d Cir. 1975).
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`18.
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`Plaintiffs have a cause of action to challenge the Postal Service’s violations of
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`NEPA and the applicable regulations under the Administrative Procedure Act (APA) or, in the
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`alternative, under the doctrine of nonstatutory review, as arbitrary and capricious, contrary to
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`law, unsupported by reasoned decision-making, unsupported by a contemporaneous justification,
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`and/or in exceedance of the Postal Service’s statutory authority. See, e.g., id.
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`19.
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`The Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and 39
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`U.S.C. §§ 401(1), 409(a) (PRA).
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`20.
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`The PRA’s “sue-and-be-sued clause waives immunity, and makes the Postal
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`Service amenable to suit, as well as to the incidents of judicial process.” U.S. Postal Serv. v.
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`Flamingo Industries (USA) Ltd., 540 U.S. 736, 744 (2004) (citing 39 U.S.C. § 401).
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`21.
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`The Court has the authority to issue the requested declaratory and injunctive
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`relief. See 28 U.S.C. §§ 2201-2202 (authorizing federal courts to issue declaratory relief and
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`further necessary or proper relief).
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`22.
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`23.
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`The challenged agency action is final.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(e)(1) because
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`defendant Louis DeJoy is an officer or employee of the United States acting in his official
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`capacity, the Postal Service is an agency of the United States, plaintiff NRDC resides in the
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`District, and no real property is involved in the action.
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`PARTIES
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`24.
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`Plaintiff NRDC is a national, nonprofit environmental membership organization
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`whose purpose is to safeguard the Earth—its people, its plants and animals, and the natural
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`systems on which all life depends. NRDC was founded in 1970 and is organized under the laws
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`of the State of New York. NRDC has over 325,000 members nationwide, over 26,000 of whom
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`live in New York. NRDC is working to solve the most pressing environmental issues we face
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`today, including environmental injustice, air pollution, and climate change.
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`25.
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`NRDC advocates for the adoption of EVs to fight climate change, ameliorate
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`local pollution, and ensure equitable access to beneficial technology. In its work, NRDC supports
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`policies that provide incentives to make EVs more affordable, that integrate EVs into the power
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`grid, and that encourage the federal government to acquire EVs. NRDC has pushed for programs
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`in seven states—covering 25 percent of the new car market—to encourage the purchase of 3.3
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`million new EVs in the next decade, starting with the Charge Ahead California initiative. NRDC
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`is also a member of the EV Charging Initiative, which collaborates across industry, public
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`interest groups, and labor organizations to accelerate the adoption of EV charging infrastructure.
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`26.
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`NRDC members live, work, and recreate near post offices, postal service carrier
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`annexes, and roads used by Postal Service delivery trucks that will be affected by the Postal
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`Service’s environmental analysis of and decision whether or not to acquire EVs. For instance,
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`NRDC members engage in gardening, biking, running, walking, observing wildlife, and
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`beekeeping, at or near their homes where they receive mail and packages from postal delivery
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`vehicles or near post offices or postal service carrier annexes where postal delivery vehicles are
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`frequently located. Furthermore, NRDC members have interests in the environmental quality in
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`and around their homes, places of work, neighborhoods, and parks, including local air quality
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`and noise pollution, which will be affected by the Postal Service’s decision.
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`27.
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`Among the affected NRDC members is Dave Potenziani in Durham, North
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`Carolina. Mr. Potenziani, who currently owns his second EV, hears and smells the postal
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`delivery trucks where he lives, including on walks along roads in his neighborhood, and finds the
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`smell of exhaust from them an offensive odor that contributes to pollution. Mr. Potenziani also
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`lives near a state park on the Eno River, where he can still hear and smell vehicle traffic from the
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`road, including postal delivery trucks that use the roads for delivery routes, while hiking.
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`Another NRDC member, Lindsay Wilkes, lives in a wooded neighborhood in Chapel Hill, North
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`Carolina, where she works from home. Ms. Wilkes spends time each day outdoors gardening and
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`exercising. She often sees, hears, and smells the Postal Service delivery truck on her street or
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`while out running or walking, sometimes more than once a day or on Sundays. Ms. Wilkes also
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`notices that the Postal Service truck’s fumes tend to linger and smell like old lawn equipment.
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`28.
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`NRDC also has members who live, work, and recreate in areas that are in non-
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`attainment for 8-hour ozone under the Clean Air Act’s National Ambient Air Quality Standards
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`(NAAQS). One such member is Nancy Marks, who lives in Montclair in Essex County, New
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`Jersey. Essex County is a non-attainment area for 8-hour ozone. Ms. Marks, who is 67 years old,
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`goes for a brisk four-mile walk in her neighborhood almost every day. On these walks, she
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`almost always sees multiple postal delivery trucks, and her route also takes her past a Post Office
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`used by many delivery vehicles that is a half mile from her home. It bothers her when postal
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`delivery vehicles are running along her route because of their cumulative impact with other
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`delivery vehicles. Ms. Marks is a retired environmental attorney for NRDC and is familiar with
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`ozone non-attainment areas, knows that nitrogen oxides emitted by internal combustion engines
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`cause ground-level ozone, and is aware of health effects of ground-level ozone for older adults
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`and people who are active outdoors, such as her. A new NEPA analysis that could result in the
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`replacement more of the Postal Service’s fleet with EVs would help move the area where she
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`lives toward attainment on 8-hour ozone by reducing emissions of ozone precursors from
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`gasoline-burning engines.
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`29.
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`The Postal Service’s flawed NEPA analysis harms these and other NRDC
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`members’ health, environmental, aesthetic, and recreational interests. A new analysis that could
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`result in the replacement more of the Postal Service’s fleet with EVs would ameliorate these
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`exposures to exhaust and noise from gas-powered delivery vehicles.
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`30.
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`Plaintiff UAW is one of the largest and most diverse labor unions in North
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`America, with over 400,000 active members and more than 600 local unions. UAW works to
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`ensure that its members earn fair wages and experience fair labor standards and safe working
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`conditions. UAW also has longstanding interests in advancing social and environmental justice
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`on behalf of itself and its members. For example, UAW has been actively engaged in every civil
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`rights battle since the 1950s and has played an important role in the passage of landmark
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`legislation such as the Occupational Safety and Health Act. On behalf of its members, UAW
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`regularly works to promote the production of vehicles at union shops.
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`31.
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`UAW also has a longstanding interest in protecting the environment. For
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`example, under the leadership of its longest-serving president, Walter Ruther, the UAW was
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`instrumental in the establishment and organization of the first Earth Day in 1970. Today, the
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`union continues its legacy of environmental advocacy through UAW’s Community Action
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`Program Councils, where its members engage in environmental protection activities to improve
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`the social conditions of its members and for society. UAW has more than 100 such Councils
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`across the country. UAW also continues this environmental work through participation in policy-
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`making and decision-making by federal agencies that may affect the environment, the union, and
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`its members. To that end, UAW submitted comments on the Postal Service’s draft EIS and final
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`EIS highlighting the adverse environmental and socioeconomic impacts from the Postal
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`Service’s plan and proposing specific alternatives to reduce such impacts.
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`32.
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`UAW and its members have an interest in contributing to the mitigation of
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`climate change and in reducing the adverse impacts of climate change on its members and their
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`communities through the production of EVs. UAW and its members believe that producing EVs
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`is a critical tool for reducing carbon emissions from the transportation sector. Moreover, UAW
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`and its members believe that producing EVs through unionized labor is the best means to ensure
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`that electric vehicles are produced in a manner that protects the interests of workers, their
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`families, and their communities.
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`33. Many of UAW’s members live and work in cities and neighborhoods that have
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`been adversely impacted by manufacturers relocating jobs to other areas where employers pay
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`workers less and where workers have fewer protections against unsafe or inequitable working
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`conditions. Such adverse impacts can include the closure of manufacturing facilities and
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`businesses and the abandonment of homes, all of which cause adverse impacts to local
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`environments, public safety, and residents’ aesthetic interests.
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`34.
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`UAW members have aesthetic and recreational interests in seeing union-built
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`automobiles on the roads in their neighborhoods. UAW members take significant pride in their
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`work and enjoy seeing the automobiles they produce. Hence, in addition to a professional interest
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`in producing the Postal Service’s new vehicles, UAW’s members also have an aesthetic and
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`recreational interest in seeing union-built Postal Service vehicles delivering mail to their homes
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`and in their neighborhoods.
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`35.
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`The Postal Service’s decision at issue and its flawed NEPA process harm the
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`interests of UAW and its members. By deciding to produce a new fleet of overwhelmingly gas-
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`powered vehicles, the Postal Service’s decision harms UAW’s interest in mitigating climate
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`change through the production of EVs. By signing and funding a contract that sends a large
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`number of jobs to a new facility not covered by a collective bargaining agreement—and by
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`refusing to disclose this decision, analyze its impacts, or analyze any alternatives with fewer
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`socioeconomic impacts—the Postal Service harmed UAW’s interest in promoting good
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`socioeconomic outcomes by ensuring that vehicles are produced at union shops. Because the
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`Postal Service’s decision will result in the production of vehicles at a new, unorganized location,
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`the agency’s decision will also harm the aesthetic and recreational interests of UAW members in
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`seeing union-built Postal Service vehicles delivering mail to their homes and in their
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`neighborhoods. Finally, by making a decision that results in jobs that could have been performed
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`in existing unionized facilities instead being sent to a state with the lowest unionization rate in
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`the nation, the Postal Service’s decision harms UAW’s interest in promoting the production of
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`vehicles at unionized shops, and makes it more likely that the communities where UAW
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`members live and work may experience adverse environmental and socioeconomic impacts
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`associated with employers moving jobs to areas where workers earn less and endure worse
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`working conditions.
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`36.
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`Defendant Postal Service is “an independent establishment of the executive
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`branch of the Government of the United States.” 39 U.S.C. § 201. The Postal Service may be
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`sued in its official name. Id. § 401(1).
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`37.
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`Defendant Louis DeJoy is sued in his official capacity as Postmaster General. The
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`Postmaster General is the chief executive officer of the Postal Service. Id. § 203.
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`LEGAL BACKGROUND
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`The National Environmental Policy Act and Implementing Regulations
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`38.
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`The purposes of NEPA are to “encourage productive and enjoyable harmony
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`between man and his environment; to promote efforts which will prevent or eliminate damage to
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`the environment and biosphere and stimulate the health and welfare of man; to enrich the
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`understanding of the ecological systems and natural resources important to the Nation.” 42
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`U.S.C. § 4321.
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`39.
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`Under NEPA, “it is the continuing policy of the Federal Government . . . to use all
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`practicable means and measures, including financial and technical assistance, in a manner
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`calculated to foster and promote the general welfare, to create and maintain conditions under
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`which man and nature can exist in productive harmony, and fulfill the social, economic, and
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`other requirements of present and future generations of Americans.” Id. § 4331(a).
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`40.
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`The statute’s “twin aims” are to require agencies to “consider every significant
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`aspect of the environmental impact of a proposed action” and to inform the public of these
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`environmental impacts. Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983) (quotation marks
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`omitted).
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`41.
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`Agencies must comply with NEPA for any “major Federal action[] significantly
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`affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C).
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`42.
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`Agencies should begin the NEPA process “at the earliest reasonable time to
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`ensure that agencies consider environmental impacts in their planning and decisions.” 40 C.F.R.
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`§ 1501.2(a).
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`43.
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`If the proposed action is “likely to have significant effects,” then the agency
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`should prepare an environmental impact statement, or EIS. See id. § 1501.3(a)(3).
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`44.
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`The EIS “shall be prepared early enough so that it can serve as an important
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`practical contribution to the decision-making process and will not be used to rationalize or justify
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`decisions already made.” Id. § 1502.5.
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`45.
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`The purpose of an EIS “is to ensure agencies consider the environmental impacts
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`of their actions in decision making. It shall provide full and fair discussion of significant
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`environmental impacts and shall inform decision makers and the public of reasonable
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`alternatives that would avoid or minimize adverse impacts or enhance the quality of the human
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`environment.” Id. § 1502.1.
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`46.
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`The EIS must include a “detailed statement” of environmental impacts of the
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`proposed action, alternatives to the proposed action, adverse environmental impacts that cannot
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`be avoided should the proposal be implemented, and any irretrievable commitments of resources.
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`See 42 U.S.C. § 4332(2)(C).
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`47.
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`48.
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`Agencies must address submitted comments in final EISs. See 40 C.F.R. § 1502.9.
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`The EIS must “present the environmental impacts of the proposed action and the
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`alternatives.” Id. § 1502.14. The agency must “[e]valuate reasonable alternatives to the proposed
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`action,” “briefly discuss the reasons for [the] elimination” of any alternatives eliminated from
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`detailed study, and “[d]iscuss each alternative considered in detail, including the proposed
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`action, so that reviewers may evaluate their comparative merits.” Id.
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`49.
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`“Effects or impacts means changes to the human environment from the proposed
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`action or alternatives that are reasonably foreseeable and have a reasonably close causal
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`relationship to the proposed action or alternatives including those effects that occur at the same
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`time and place as the proposed action or alternatives and may include effects that are later in
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`time or farther removed in distance from the proposed action or alternatives.” Id. § 1508.1(g).
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`“Effects include ecological . . . , aesthetic, historic, cultural, economic (such as the effects on
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`employment), social, or health effects.” Id. § 1508.1(g)(1).
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`50.
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`The EIS must include an analysis of “environmental consequences” that “forms
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`the scientific and analytic basis for the comparisons” for the alternatives analysis. Id.
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`§ 1502.16(a). The section must include descriptions of the “environmental impacts of the
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`proposed action and reasonable alternatives to the proposed action and the significance of those
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`impacts,” any “adverse environmental effects that cannot be avoided should the proposal be
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`implemented,” any “irreversible or irretrievable commitments of resources,” the “[e]nergy
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`requirements and conservation potential of various alternatives and mitigation measures,” the
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`Case 1:22-cv-03442 Document 1 Filed 04/28/22 Page 15 of 49
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`“[m]eans to mitigate adverse environmental impacts,” and, if “applicable, economic and
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`technical considerations, including the economic benefits of the proposed action.” Id.
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`51.
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`Agencies must “use . . . reliable existing data and resources” and “identify any
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`methodologies used and shall make explicit reference to the scientific and other sources relied
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`upon for conclusions in the statement.” Id. § 1502.23.
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`52. When an agency considers a cost-benefit analysis for a proposed action to
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`determine what choice to make, “the agency shall incorporate the cost-benefit analysis by
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`reference or append it to the statement as an aid in evaluating the environmental consequences.”
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`Id. § 1502.22.
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`53.
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`54.
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`Both draft and final EISs shall be published. Id. § 1502.20.
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`The agency is required to “consider substantive comments” received on the draft
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`EIS. Id. § 1503.4(a). The agency may modify its analysis, such as by changing alternatives,
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`adding new alternatives, supplementing its analysis, or correcting facts in response to comments.
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`Id.
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`55. When an agency makes a decision, it must publish a record of decision that
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`“state[s] the decision” and also identifies “alternatives considered by the agency in reaching its
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`decision.” Id. § 1505.2(a)(1)-(2). The agency must also “identify and discuss all such factors,
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`including any essential considerations of national policy, that the agency balanced in making its
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`decision and state how those considerations entered into its decision.” Id. § 1505.2(a)(2).
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`Furthermore, the agency must state whether it “has adopted all practicable means to avoid or
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`minimize environmental harm from the alternative selected, and if not, why the agency did not.”
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`Id. § 1505.2(a)(3).
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`56.
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`“Federal agencies may not make or issue a record of decision . . . until . . . 30 days
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`after the notice . . . for a final environmental impact statement.” Id. § 1506.11(b)(2). Members of
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`the public “may make comments consistent with the time periods under [40 C.F.R.] § 1506.11.”
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`Id. § 1503.1(b).
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`57.
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`Until an agency issues its record of decision, “no action concerning the proposal
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`may be taken that would: (1) [h]ave an adverse environmental impact; or (2) [l]imit the choice of
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`reasonable alternatives.” Id. § 1506.1(a).
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`58.
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`EPA is required to “review and comment in writing on the environmental impact
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`of . . . any major Federal agency action” to which NEPA applies. 42 U.S.C. § 7609(a). Those
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`comments must be made public. Id.
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`59.
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`The standard by which courts review an agency’s compliance with NEPA is
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`whether the agency’s analysis and decision were arbitrary, capricious, or an abuse of discretion,
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`or contrary to law, or whether they were in excess of the agency’s authority. See, e.g., Chelsea
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`Neighborhood Ass’ns, 516 F.2d at 387 n.23.
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`Postal Service’s NEPA Regulations
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`60.
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`The Postal Service is not exempt from NEPA and it “must comply with the
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`requirements of that statute.” Chelsea Neighborhood Ass’ns, 516 F.2d at 386.
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`61.
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`The Postal Service has promulgated regulations implementing NEPA, see 39
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`C.F.R. pt. 775, and CEQ’s general NEPA regulations, 39 C.F.R. § 775.1 (citing 40 C.F.R.
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`pt. 1500).
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`62.
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`The Postal Service declared that it developed this EIS “[p]ursuant to the
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`requirements of the National Environmental Policy Act of 1969 (NEPA), its implementing
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`procedures at 39 CFR 775, and the President’s Council on Environmental Quality Regulations
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`(40 CFR parts 1500-1508).” 87 Fed. Reg. at 994; see also 86 Fed. Reg. 12,715, 12,715 (Mar. 4,
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`2021) (notice of “intent of the U.S. Postal Service, pursuant to the requirements of” NEPA and
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`its implementing regulations “to prepare an EIS to evaluate the environmental impacts of the
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`proposed action” and an alternative).
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`63.
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`The Postal Service’s NEPA regulations adopted the factors identified in CEQ’s
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`NEPA regulations to determine when to prepare an EIS. 39 C.F.R. § 775.5(a).
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`64.
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`Under the Postal Service’s NEPA regulations, “[p]roposed actions should be
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`assessed as soon as their effects can be meaningfully evaluated, to provide the bases for early
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`decision on whether detailed environmental impact statements must be prepared.” Id.
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`§ 775.8(a)(3). The Postal Service is required to “[s]tudy, develop, describe, and evaluate at all
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`decision points, reasonable alternatives to recommended actions which may have a significant
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`effect on the environment.” Id. § 775.8(a)(4).
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`65.
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`The Postal Service’s NEPA regulations declare that the alternatives analysis is
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`“vitally important.” Id. § 775.11(c)(5). The alternatives and their impacts should be “presented in
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`comparative form, thus sharply defining the issues and providing a clear basis for choosing
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`alterna