
USCA1 Opinion

	




                 [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                                 ____________________                                         -2-                       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).                                         -3-                                          3                       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                                         -4-                                          4             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                                         -5-                                          5             "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                                         -6-                                          6             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                                         -7-                                          7             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                                         -8-                                          8             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                                         -9-                                          9             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                                         -10-                                          10             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,                                                                     ___                                         -11-                                          11             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                                         -12-                                          12             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                                         -13-                                          13             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                                         -14-                                          14             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                                         -15-                                          15             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                                         -16-                                          16             "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."                                         -17-                                          17                       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                                         -18-                                          18             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.                                         -19-                                          19                                         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                                         -20-                                          20             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                                                                 ____                                         -21-                                          21             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                                                            ________                                         -22-                                          22             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                                         -23-                                          23             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                                         -24-                                          24                       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             ___                                         -25-                                          25             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                                         -26-                                          26             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                                         -27-                                          27             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.                                         -28-                                          28                       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                                         -29-                                          29             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.                       ________                                         -30-                                          30             NOTE:  See Slip Opinion for Appendix.                                         -31-                                          31
