Citizens Ass'n of Georgetown v. Washington

• Decision Date: 30 September 1974
• Docket Number: Civ. A. No. 1944-73.
• Citation: 383 F. Supp. 136
• Parties: CITIZENS ASSOCIATION OF GEORGETOWN et al., Plaintiffs, v. Walter E. WASHINGTON, Commissioner of the District of Columbia, et al., Defendants.
• Court: U.S. District Court — District of Columbia

383 F. Supp. 136

CITIZENS ASSOCIATION OF GEORGETOWN et al., Plaintiffs, v. Walter E. WASHINGTON, Commissioner of the District of Columbia, et al., Defendants.

Civ. A. No. 1944-73.

United States District Court, District of Columbia.

August 8, 1974.

On Motion for Attorneys' Fees and Costs September 30, 1974.

Bruce J. Terris, Suellen T. Keiner, Washington, D. C., for plaintiffs.

John C. Salyer, III, David S. Eisenberg, Asst. Corp. Counsel, Washington, D. C., for defendants.

Charles J. Steele, Jo V. Morgan, John J. Carmody, Jr., Washington, D. C., for Maloney Concrete Co.

Burton A. Schwalb, Washington, D. C., for the Georgetown-Inland Corporations.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

I. INTRODUCTION

This action came on for trial on the merits before the Court sitting without a jury. Plaintiffs, Citizens Association of Georgetown and The Committee of 100 on the Federal City, seek a declaratory judgment and injunctive relief in order to prevent the completion of two buildings in the Georgetown waterfront area of the District of Columbia. The issues presented are whether the corporate Defendants are in violation of an "emission standard or limitation" under the Clean Air Act, 42 U.S.C. § 1857 et seq. (1969), as amended (Supp.1974), and whether the corporate Defendants' developments will cause a violation of the national ambient air quality standards in 1977. The Court finds that the Plaintiffs failed to show that Defendants are in violation of any "emission standard or limitation" under the Act and further that Plaintiffs failed to prove at trial that Defendants, Georgetown-Inland North Corporation and Maloney Concrete Company, will cause a violation of the national primary ambient air quality standards in 1977 by completing their projects in accordance with existing permits.

This opinion constitutes the Court's findings of fact and conclusions of law as required by Federal Rules of Civil Procedure 52(a).

II. THE PARTIES

Plaintiff, Citizens Association of Georgetown, a non-profit group founded in 1878, has a long history of fighting to preserve the historical, scenic, and national values of this city and its environment. It sues here on behalf of its members as well as itself.

Plaintiff, The Committee of 100 on the Federal City, is a non-profit group founded in 1923 which seeks to promote sound land-use planning techniques and, generally, to make the nation's capitol a better place in which to live. It sues on behalf of its members and itself. It alleges that several of its members own property in the Georgetown area and claims that members of the Committee will be seriously injured by the increase in air pollution which will allegedly be produced in the Washington area by the construction of Defendants, Maloney Concrete Company and the Georgetown-Inland Corporation.

Plaintiffs have standing to prosecute this action since the alleged detriment to their health and the potential loss to Defendants, were Plaintiffs to succeed in this suit, exceed $10,000.

The local governmental defendants are the Commissioner of the District of Columbia, Walter E. Washington; the Director of the D. C. Department of Economic Development, Julian R. Dugas; and the Acting Director of the D. C. Department of Environmental Services, William C. McKinney. These Defendants have the authority and responsibility under the Clean Air Act (42 U. S.C. § 1857 et seq.), the District of Columbia Air Pollution Control Act (D.C. Code 6-811 et seq.), and regulations promulgated thereunder, to prepare a comprehensive program to control and prevent air pollution in the District of Columbia.

The corporate Defendants are the Georgetown-Inland Corporations and the Maloney Concrete Company. The Georgetown-Inland Corporations are five affiliates of Inland Steel Corporation. These corporations have plans over the next five years to construct in three phases an $80 million complex consisting of shops, restaurants, offices, a hotel, and a conference center on a seven-acre site in the Georgetown waterfront area. Among the five Inland affiliates, only Georgetown-Inland North Corporation has a building permit and is in the process of construction. Its building will be all-electric and will contain offices, shops, and a parking garage. The Maloney Concrete Company, a Delaware corporation, is the owner and developer of the Dodge Center, a complex of offices, shops and garage, now under construction in the Georgetown waterfront area.

III. JURISDICTION OF THIS COURT

This Court has jurisdiction to hear this action under 42 U.S.C. § 1857h-2(a) and 28 U.S.C. § 1331(a).¹ 42 U.S.C. § 1857h-2(a) vests in this Court jurisdiction of "citizens suits" wherein any person is alleged to be in violation of an "emission standard or limitation" under the Clean Air Act, 42 U.S.C. § 1857 et seq. Plaintiffs have alleged in their complaint that construction by the corporate Defendants will preclude the attainment of the national primary ambient air quality standards for the District of Columbia in 1977. This is the precise issue on which the parties went to trial after denial of the Plaintiffs' motion for a preliminary injunction. Citizens Ass'n of Georgetown v. Washington, 370 F.Supp. 1101 (D.D. C.1974). Plaintiffs also allege that the corporate defendants are in violation of D.C.R.R. 8-2:720(a) which requires that construction of any "stationary source" of air pollution proceed only upon issuance of an air quality permit. Upon consideration of the Clean Air Act and upon our construction of the Act, we have concluded that Plaintiffs fail to demonstrate that Defendants are in violation of any "emission standard or limitation" as defined by the Clean Air Act. However, this decision calls for a judgment on the merits rather than a dismissal for want of jurisdiction.

42 U.S.C. § 1857h-2(a) extends federal court jurisdiction to cases not otherwise cognizable, without excluding jurisdiction provided by other provisions. 42 U.S.C. § 1857h-2(e). The importance of § 1857h-2(a) as a jurisdictional provision is that it confers federal jurisdiction over violations of "emission limitations" even if those standards are only proscribed by state or local statutes, if the state or local statute is part of an implementation plan. Moreover, the potential plaintiff is relieved of meeting the jurisdictional amount of $10,000.00.

The Court also concludes that jurisdiction under 28 U.S.C. § 1331(a) is well-founded. A substantial federal question exists as to whether the Clean Air Act in its entirety requires that the Maloney and Inland developments be reviewed by a federal district court, prior to or during construction, to determine if construction will interfere with the attainment and maintenance of the national ambient air quality standards in the District by May 31, 1977.

IV. PLAINTIFFS FAILED TO DEMONSTRATE THAT THE CORPORATE DEFENDANTS VIOLATE THE CLEAN AIR ACT

In order to prevail in this case, Plaintiffs must: (1) show that the corporate Defendants have violated an "emission standard or limitation" as defined in the Clean Air Act, or a District of Columbia regulation implementing the Act; or (2) demonstrate that Defendants' construction will in fact cause a violation in 1977 of the national ambient air quality standards. We conclude that Plaintiffs have failed in the first respect as a matter of law and in the second respect as a matter of fact. This decision is limited to the buildings now under construction by Georgetown-Inland North Corporation and Maloney Concrete Company. The other Inland developments have not been issued building permits, are at an indefinite stage of planning, and may be subject to District of Columbia or EPA regulations concerning "indirect sources" or parking facilities when construction begins.

A. The Corporations Are Not in Violation of an "Emission Standard or Limitation" as Defined by the Clean Air Act.

42 U.S.C. § 1857h-2(a) gives jurisdiction to the federal district court to hear suits in which a party alleges a violation of (1) an "emission standard or limitation under this chapter" or (2) an order issued by a state or the Environmental Protection Agency (hereinafter, "EPA") with respect to such a standard or limitation. The second type of violation (violation of an order) is not in question, so the Court does not need to discuss it here. 42 U.S.C. § 1857h-2(f) defines the terms "emission standard or limitation under this chapter" to mean "a schedule or timetable of compliance, emission limitation, standard of performance or emission standard or a motor vehicle standard, not applicable here which is in effect under this chapter . . . or under an applicable implementation plan." All of these terms are "terms of art"; they are defined by Congress within other provisions of the Act as discussed below. These terms have precise definitions under the Act and this Court is not free to add or subtract from their legislative content if it is unambiguous. We will discuss each term in turn.

The terms "emission limitation" and "schedule or timetable of compliance" are defined in 42 U.S.C. § 1857c-5(a)(2)(B). Each state is required to adopt an implementation plan to meet the national primary and secondary air quality standards under § 1857c-5(a)(1). "Emission limitation" is a broad term for those measures within state implementation plans which are necessary to insure attainment and maintenance of the national primary and secondary air quality standards. See National Resources Defense Council v. EPA, 489 F.2d 390 (5th Cir. 1974) at note 2. "Schedules or timetables of compliance" are timetables for compliance with the emission limitations, which timetables are also to be found in the implementation plans. 42 U.S.C. § 1857c-5(a)(2)(B). That is, Congress has directed each state to adopt a plan sufficient to meet the national primary and secondary air quality standards. Such a plan must be implemented by state (and perhaps local) statutes...