City of Highland Park v. Train
| Decision Date | 25 March 1974 |
| Docket Number | No. 73 C 3027.,73 C 3027. |
| Citation | 374 F. Supp. 758 |
| Parties | The CITY OF HIGHLAND PARK, a Home Rule municipal corporation, et al., Plaintiffs, Village of Deerfield, Additional-plaintiff, 1-3-74, v. Russell E. TRAIN, as Administrator of the United States Environmental Protection Agency, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
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Joseph V. Karaganis, Sanford R. Gail, Martin, Karaganis & Gail, Thomas H. Compere, Berle L. Schwartz, Highland Park, Ill., for plaintiffs.
Bernard Carey, State's Atty., Fredric B. Weinstein, Melvyn A. Rieff, Asst. State's Atty., for Highway Dept.
John C. Christie, Jr., John P. Scotellaro, Bell, Boyd, Lloyd, Haddad & Burns, Chicago, Ill., for Lord & Taylor.
Frederic O. Floberg, Ross, Hardies, O'Keefe, Babcock & Parsons, Chicago, Ill., for Village of Northbrook.
Richard V. Houpt, Sheldon Davidson, Pedersen & Houpt, Chicago, Ill., for Village of Deerfield.
U. S. Atty. James R. Thompson, Floyd Babbitt and David R. Sturges, Asst. U. S. Attys., for U. S. Environmental Protection Agency and the U. S. Dept. of Transportation and Russell E. Train, Administrator of the U. S. Environmental Protection Agency.
Arnstein, Gluck, Weitzenfeld & Minow, Burton Y. Weitzenfeld, Stanley M. Lipnick, John L. Ropiequet, Chicago, Ill., for Homart Development Co., Broad-way Properties & Sears, Roebuck Co.
In this multi-count action, plaintiffs assert that they have been denied, or are in imminent danger of being denied, various federal Constitutional and statutory rights through the action and inaction of various federal, county and private defendants. In general, the primary impetus for this lawsuit is the alleged violation by federal officials and agencies of their duties under the Clean Air Act, as amended, 42 U.S.C. § 1857 et seq., and the National Environmental Protection Act, 42 U.S.C. § 4321 et seq., by failing to subject a particular highway expansion project and an adjacent shopping center complex to the requirements of those statutes. Plaintiffs seek declaratory and injunctive relief ordering the governmental defendants to take action to meet their statutory obligations and prohibiting further construction of the road expansion or shopping center in the interim.
Plaintiffs consist of the cities of Highland Park and Deerfield, municipal corporations in the immediate area of the shopping center site; the Tri-Suburban Defense Counsel, a non-profit Illinois corporation, whose membership includes residents of Highland Park, Deerfield and Northbrook interested in protecting the physical and aesthetic environment of those cities; and various residents of Highland Park and Glenbrook Countryside. The individual plaintiffs live immediately north or west of the shopping center construction site.
In December, 1973, a hearing was held on plaintiffs' motion for a preliminary injunction and on defendants' motions to dismiss for lack of subject matter jurisdiction, or, in the alternative, for failure to state a claim upon which relief could be granted. The parties having exhaustively briefed the issues raised at the hearing, the matter is presently before the court for a decision of those motions.
The facts culminating in this lawsuit, as gathered from the papers on file, are as follows: Lake-Cook Road constitutes the boundary line between Lake and Cook Counties. For most of its length, the road consists of two lanes. Starting in 1967, the Cook County Highway Department began to develop plans to expand the road to a four-lane highway and also to construct a four-lane extension where no road presently exists. Although it appears that, at that time, an expanded Lake-Cook Road was deemed to be capable of handling projected traffic increases for the next 20 years or more, plaintiffs claim that these estimates did not foresee, nor take into account, the increment in average daily traffic that would be caused by the construction of a large shopping center complex on the Road.
In January, 1973, the defendant developers1 submitted a proposed plan for the construction of a large shopping center on Lake-Cook Road between Skokie Highway and Waukegan Road.2 Because of the location of the proposed site in conjunction with the Tri-State Tollway, which blocks all north-south through street access in the area except for Skokie Highway and Waukegan Road, the only main thoroughfare providing access to the shopping center will be Lake-Cook Road. Consequently, plaintiffs estimate that 90% of the traffic generated by the proposed shopping center will have to use Lake-Cook Road.3
Plaintiffs claim that expected traffic growth plus the increase in vehicle trips to be generated by the shopping center4 will soon overwhelm the Lake-Cook Road expansion and will create especially acute traffic congestion at the intersections of Lake-Cook Road with Skokie Highway and Waukegan Road.
These developments allegedly will subject plaintiffs to a substantial increase in "noise and discomfort in the use of their homes and in the use of the streets in their community." More specifically, plaintiffs forecast that the increase in traffic will raise the concentration of carbon monoxide in the ambient air by more than 66% over existing levels.
These counts comprise the heart of this lawsuit. Here plaintiffs allege that the Administrator of the Environmental Protection Agency ("EPA") has failed to promulgate regulations in conformity with a timetable set forth in the Clean Air Act Amendments of 1970 and proposes to grant projects which begin construction prior to May 15, 1974, exemptions from that statute's regulations, also in violation of the statute.
The Clean Air Act was enacted, inter alia, "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare." 42 U.S.C. § 1857(b)(1). The program established to control air pollution divides responsibility for the task between the states and the federal government. The Administrator of the EPA has exclusive responsibility for establishing "national ambient air quality standards,"6 while the states have primary authority, subject to EPA review, for establishing "implementation plans" to achieve these standards. In spite of the complexity and breadth of this undertaking, the Act established an expedited schedule for EPA promulgation of air quality standards, the submission of state implementation plans, and the development of substitute federal programs to replace deficient state plans.
Thus, within 30 days after the passage of the Act, the Administrator was to publish proposed ambient air quality standards for each pollutant for which "air quality criteria had been issued." 42 U.S.C. § 1857c-4(a)(1)(A).7 After a maximum of 90 days for public comment upon these proposals, the Administrator was required to issue final air quality standards. 42 U.S.C. § 1857c-4(a)(1)(B). Both of these deadlines were met by the EPA.
Within nine months after the promulgation of the national ambient air standards, each state was to submit to the Administrator a plan which provided for the "implementation, maintenance, and enforcement" of these standards. 42 U. S.C. § 1857-5(a)(1). The Administrator was to review the state plans within four months to assure that they satisfied the statutory requirements. 42 U. S.C. § 1857c-5(a)(2). Each plan was to provide for the attainment of the national primary standards "as expeditiously as possible" but in no case later than three years after the date of EPA approval of the plan. 42 U.S.C. § 1857c-5(a)(2)(A)(i). Attainment of national secondary standards was to occur with a "reasonable time" to be specified in the plan. 42 U.S.C. § 1857c-5(a)(2)(A)(ii). Further, each plan was to include "emission limitations, schedules and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary or secondary standard, including, but not limited to, land-use and transportation controls." 42 U.S.C. § 1857c-5(a)(2)(B). The Act also sets forth a number of other specific conditions required before the approval of the EPA was to be forthcoming. If the plan or any portion thereof was determined not to satisfy the statutory conditions, the Administrator was required to disapprove the plan or portion. In such a situation, he had six months from the date of submission, or two months from the date of disapproval, to promulgate his own implementation plan, or portion, for the state involved. 42 U.S.C. § 1857c-5(c).
Prior to and during the period in which the state plans were under review by the EPA, the Administrator repeatedly expressed doubts about his authority to require state plans to protect against "significant deterioration" of existing clean air regions8 and was on record as stating that he would not demand such provisions in state plans. See Sierra Club v. Ruckelshaus, 344 F. Supp. 253, 254 (D.C.D.C.), aff'd per curiam (D.C.Cir. 1972), aff'd by an equally divided court sub nom., Fri v. Sierra Club, 412 U.S. 541, 93 S.Ct. 2770, 37 L.Ed.2d 140 (1973). The Sierra Club brought suit in the U. S. District Court for the District of Columbia to enjoin the Administrator from approving any state plans omitting provisions on significant deterioration, claiming that such action would constitute a failure to perform a non-discretionary duty in violation of the Act. See 42 U.S.C. § 1857h-2(a). After examining the stated purpose of the Clean Air Act Amendments of 1970, the legislative history of the Act and its predecessor, and pertinent administrative regulations, see 344 F.Supp. at 255-256, the court held for the plaintiffs, concluding that:
"The Clean Air Act of 1970 is based in important part on a policy of non-degradation of...
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