Atlantic Terminal Urban Renewal v. NYC DEP, No. 87 Civ. 4242 (MEL).

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Citation: 740 F. Supp. 989
• Decision Date: 28 June 1990
• Parties: ATLANTIC TERMINAL URBAN RENEWAL AREA COALITION, John Theodore Glick, Anne McClellan, Loraine Oliver, and Mildred Davis, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION; New York City Public Development Corporation; New York City Board of Estimate; David N. Dinkins; Albert Appleton; New York City Planning Commission and Sylvia Deutsch, Defendants.
• Docket Number: No. 87 Civ. 4242 (MEL).

740 F. Supp. 989

ATLANTIC TERMINAL URBAN RENEWAL AREA COALITION, John Theodore Glick, Anne McClellan, Loraine Oliver, and Mildred Davis, Plaintiffs,
v.
NEW YORK CITY DEPARTMENT OF ENVIRONMENTAL PROTECTION; New York City Public Development Corporation; New York City Board of Estimate; David N. Dinkins; Albert Appleton; New York City Planning Commission and Sylvia Deutsch, Defendants.

No. 87 Civ. 4242 (MEL).

United States District Court, S.D. New York.

June 28, 1990.

Edward Copeland, Elizabeth St. Clair, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City, for plaintiffs.

Victor A. Kovner, Corp. Counsel of the City of New York (Antonia Levine, John de Angeli, Susan Shapiro, of counsel), New York City, for Mun. defendants.

Kaye, Scholer, Fierman, Hays & Handler (Richard C. Seltzer, Stanley N. Alpert, Cecil J. North, III, of counsel), New York City, for amicus curiae Rose Associates.

LASKER, District Judge.

This is a citizen suit brought under the Clean Air Act, 42 U.S.C. § 7604(a) (1982), to enforce air quality standards in the area surrounding the Atlantic Terminal and Brooklyn Center Projects (collectively the "Atlantic Terminal Project" or "Project"), a proposed development in downtown Brooklyn.¹

740 F. Supp. 990

The plaintiffs (collectively "ATURA") claim that the Project will cause serious new violations and exacerbate existing violations of National Ambient Air Quality Standards for carbon monoxide (the "NAAQS" or the "standards") by increasing automobile traffic in the area and that New York City has not fulfilled its commitment to ensure attainment of the standards. ATURA also seeks to amend its complaint to add a claim under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332 et seq. (1982), alleging that the final environmental impact statement for the Project (the "FEIS") was based upon incorrect assumptions and information which caused it to underestimate the effect of the Project on air quality

I.

The Environmental Protection Agency ("EPA") is required by the Clean Air Act to promulgate NAAQS for certain harmful pollutants, including carbon monoxide. 42 U.S.C. § 7409(b)(2) (1982). The NAAQS, which govern the concentration of a pollutant in the air, must be set at a level below which the EPA administrator judges the pollutant is to be kept to safeguard human health. 42 U.S.C. § 7409(b)(1) (1982). The Clean Air Act requires each state to adopt a state implementation plan ("SIP") that provides for the "implementation, maintenance, and enforcement" of the NAAQS and to submit its SIP to the EPA for approval. 42 U.S.C. § 7410(a)(1) (1982). The New York SIP, which commits the state to secure major reductions in carbon monoxide concentrations in the New York City metropolitan area to achieve the NAAQS, was approved by the EPA.

NEPA requires that an environmental impact statement ("EIS") be prepared in connection with any major federal action significantly affecting the quality of the human environment. 42 U.S.C. § 4332(2)(C) (1982). Part of the New York SIP includes a commitment by New York City ("the defendants" or "the City") that:

To further insure that the carbon monoxide standard is attained in New York City, if an EIS Environmental Impact Statement for a project proposal identifies a violation or exacerbation of the carbon monoxide standard NAAQS, then the City commits to assure that mitigating measures will be implemented by the project sponsor or City, so as to provide for attainment of the standard by December 31, 1987 and maintenance of it thereafter.² ("the City's commitment")

The defendants earlier moved to dismiss this case on the grounds that the suit was not permitted under the citizen suit provision of the Clean Air Act, a provision authorizing suits to compel compliance with emission standards or limitations of a SIP. The City argued that its commitment, cited above, did not constitute "an emission standard or limitation" as that term is defined in 42 U.S.C. § 7604(f) (1982). We found jurisdiction because of the City's commitment to "take affirmative, although unspecified, steps to achieve the standard." Atlantic Terminal Urban Renewal Area Coalition v. New York City Dept. of Environmental Protection, 697 F.Supp. 157, 161 (S.D.N.Y.1988).

The parties have each moved for summary judgment. ATURA claims that the defendants have repudiated the City's commitment. The defendants argue that they have fulfilled that commitment.

II.

It is necessary to define the precise nature of the City's commitment in order to determine whether or not that commitment has been fulfilled. The relevant provision of the SIP has a simple conditional construction: if X occurs, then the City commits to do Y. The parties are in agreement

740 F. Supp. 991

that X, the condition that triggers the City's commitment, has occurred: the FEIS for the Atlantic Terminal Project identified a number of violations and exacerbations of the NAAQS. The FEIS predicted that, with or without the Project, carbon monoxide concentrations at thirteen locations in the area surrounding the Project would exceed the NAAQS in 1988 and 1991.³

In light of those unequivocal findings, both parties agree that the City has become committed to "assure that mitigating measures will be implemented by the project sponsor or the City, so as to provide for attainment of the standard." Both parties interpret this commitment to mean that the City must affirmatively act to adopt mitigation measures adequate to bring the area into compliance. They part company, however, over the issue of the significance of the December 31, 1987 date mentioned in the City's commitment. ATURA claims that it is entitled to summary judgment because the defendants admit that they did not assure that mitigation measures would be implemented so as to attain the NAAQS by December 31, 1987. The defendants argue that the December 31, 1987 date merely restates the statutory goal for attainment of the NAAQS and was not intended to bar a project such as the Atlantic Terminal Project for which mitigation by December 31, 1987 would not have been feasible and whose mitigation measures will attain the NAAQS within a reasonable time after that date.

In the FEIS, the City outlined mitigation measures designed to offset any violations or exacerbations of the carbon monoxide standard caused by the Project. Mitigation measures proposed in the FEIS include adjustment of traffic signal timing, transformation of certain parking or standing lanes into moving lanes during peak travel periods, separation of conflicting traffic movements into definite paths of travel using pavement markings or raised islands, street widening and deployment of traffic enforcement agents.⁴ According to the FEIS, "with traffic mitigation the proposed project will have no significant air quality impacts."⁵ However, the FEIS also states that the mitigation measures it outlines will not be sufficient to mitigate significant traffic impacts from other sources. With those mitigation measures in place, the FEIS predicts that 11 sites in the Project area will still violate the NAAQS in 1988 and 1991.⁶ The FEIS itself states, "Carbon monoxide concentrations at these locations will not be in conformance with the SIP with or without the project, or with the project with its mitigation."⁷

The defendants acknowledge that § 3.6(A) of the SIP requires them to commit to assure that attainment measures will be implemented not only for exceedances caused by the Project but also for exceedances not caused by the Project which are revealed through the EIS process. Accordingly, the City has developed a comprehensive traffic management plan for the downtown Brooklyn area (the "Downtown Brooklyn Master Plan" or "DBMP") to fulfill its SIP commitment. The DBMP addresses the potential impacts of a number of projects expected to be built by 1988 and 1992 and includes mechanisms for eliminating pre-existing exceedances that were revealed in the FEIS. The DBMP outlines a combination of engineering and street improvement measures designed to correct traffic congestion problems in downtown Brooklyn so as to achieve the NAAQS.⁸ The City has stated its intention to implement these improvements and the necessary expenditures have been approved as part of the City's capital budget plan for

740 F. Supp. 992

fiscal years 1989-92.⁹

Putting aside for the moment the issue of the significance of the December 31, 1987 deadline mentioned in the SIP, the narrow but critical issue to be determined is whether the FEIS and the DBMP convincingly establish that the NAAQS will be attained within the time frame they establish.

The FEIS states that the mitigation measures it proposes will offset any exceedances or exacerbations of the NAAQS caused by the Atlantic Terminal Project. ATURA disputes that statement and claims that the FEIS both understates the effects of the Project on air quality and overstates the efficacy of the proposed mitigation measures. ATURA contends that in order to minimize both the current level of carbon monoxide and the Project's effect on it the defendants have relied on data which they knew to be incorrect.

The DBMP states that the mitigation measures it proposes will, in conjunction with the measures proposed in the FEIS, achieve the NAAQS by 1993. ATURA claims that the DBMP attainment measures, even if implemented on schedule, will not be sufficient to eliminate exceedances of the NAAQS in the Project area.

ATURA argues that there are four defects in the FEIS and DBMP which it claims resulted in a severe understatement of the future carbon monoxide concentrations in the Project area: 1) the FEIS overestimated the beneficial results of two emissions reductions programs: the New York State Vehicle Inspection and Maintenance Program and the New York State Mechanics Training Program; 2) the FEIS compared the "build" and "no-build" alternatives in a deceptive manner by analyzing the...