ATURA COALITION v. NYC DEPT. OF ENV. PROT.

• Decision Date: 17 April 1989
• Docket Number: No. 87 Civ. 4242(MEL).,87 Civ. 4242(MEL).
• Citation: 709 F. Supp. 502
• 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; Edward I. Koch; Harvey W. Schultz; New York City Planning Commission; Sylvia Deutsch; United States Environmental Protection Agency; William K. Reilly; United States Department of Housing and Urban Development; and Jack F. Kemp, Defendants.
• Court: U.S. District Court — Southern District of New York

709 F. Supp. 502

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; Edward I. Koch; Harvey W. Schultz; New York City Planning Commission; Sylvia Deutsch; United States Environmental Protection Agency; William K. Reilly; United States Department of Housing and Urban Development; and Jack F. Kemp, Defendants.

No. 87 Civ. 4242(MEL).

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

April 17, 1989.

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

Benito Romano, Acting U.S. Atty., S.D. N.Y., New York City, for defendants U.S. Dept. of Housing and Urban Development and Jack F. Kemp, as Secretary, U.S. Dept. of Housing and Urban Development; Richard W. Mark, Asst. U.S. Atty., S.D.N.Y., of counsel.

LASKER, District Judge.

In a decision of September 29, 1988, the motion of the Department of Housing and Urban Development and its Secretary ("HUD") to dismiss the fourth claim of plaintiffs' complaint, charging it with violation of § 176(c) of the Clean Air Act ("CAA"), 42 U.S.C. § 7506(c), was denied without prejudice. Atlantic Terminal Urban Renewal Area Coalition v. New York City Dep't of Envtl. Protection, 697 F.Supp. 666 (S.D.N.Y.1988). HUD moves for reconsideration of that decision.¹

In the claim at issue, the plaintiffs allege that, by granting preliminary approval of a grant application for construction of the Atlantic Terminal and Brooklyn Center Projects ("the Project"), HUD violated § 176(c) of the CAA, which prohibits a federal agency from supporting an activity that does not conform to an approved state implementation plan ("SIP"). Plaintiffs allege that the City has not, as the SIP requires, assured that mitigation measures will be adopted to ensure compliance with the CAA's carbon monoxide standard. HUD argued then, as it does now, that plaintiffs failed to state a claim upon which relief could be granted because HUD had delegated its responsibility to review the Project's environmental impact to the grant applicant pursuant to 42 U.S.C. § 5304(f).² Although the CAA duties were found to be delegable, the motion was denied on the ground that an October 16, 1986 letter of the EPA, a copy of which was sent to HUD, that stated that the mitigation plans for the Project as then proposed did not meet CAA requirements and thus could not receive EPA approval, "put HUD on notice that the environmental review record in this case does not presently comply with HUD regulations."³ Id. at 671.

HUD contends that, by construing this letter as notice that triggered the agency's responsibilities to monitor the Project's compliance with the CAA, id. at 673, the decision imposed upon HUD the very duties Congress authorized it to delegate. According to HUD, the decision of September 29th thereby eviscerated the delegation provisions of § 104(f).

Admittedly, HUD's duty to monitor the Project's CAA compliance is not so clearly procedural as were its duties recognized in Raleigh Heights Homeowners v. Reno, 501 F.Supp. 269 (D.Nev.1980) (finding HUD had obligation to require new environmental review where project site changed), and Colony Fed'l Sav. & Loan Ass'n v. Harris, 482 F.Supp. 296 (W.D.Pa.1980) (finding HUD had duty to ensure notice was provided interested parties). However, the duty articulated in the September 29th decision was not intended to impose upon HUD an obligation to evaluate the conclusions of the applicant's environmental impact statement, but rather to require HUD to ensure that those conclusions, on their face, reflected compliance with the Act.

However, even if the EPA letter provides a basis for holding HUD morally responsible in some sense for any ultimate decision to fund the Project, it does not affect HUD's legal accountability. With or without the letter, HUD has persuasively argued in the context of this motion that its presence as a party in the case is not necessary to assure that the plaintiffs are afforded full relief, namely to ensure that the plaintiffs' challenges to the environmental soundness of the Project are heard and resolved prior to the actual disbursement and use of funds from HUD. Plaintiffs' allegations that the Project would, if built, violate the CAA and National Environmental Policy Act, 42 U.S.C. § 4321 et seq., are presently before the court. Moreover, in addition to a possible opportunity to raise these objections with HUD...