City of Highland Park, Ill. v. Train
| Decision Date | 24 July 1975 |
| Docket Number | Nos. 74-1271,75-1006,s. 74-1271 |
| Parties | , 5 Envtl. L. Rep. 20,408 The CITY OF HIGHLAND PARK, Illinois, etc., et al., Plaintiffs-Appellants, v. Russell E. TRAIN, etc., et al., Defendants-Appellees. The CITY OF HIGHLAND PARK, Illinois, etc., et al., Petitioners, v. Russell E. TRAIN, as Administrator of the United States Environmental Protection Agency, and United States Environmental Protection Agency, Respondents. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joseph V. Karaganis and Sanford R. Gail, Chicago, Ill., Berle L. Schwartz, Highland Park, Ill., Sheldon Davidson, Richard V. Houpt, Chicago, Ill., for plaintiffs-appellants.
James R. Thompson, U. S. Atty., Gary L. Starkman, Asst. U. S. Atty., Chicago, Ill., Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark and Raymond W. Mushal, Atty., Dept. of Justice, Washington, D. C., Bernard Carey, State's Atty., Fredric B. Weinstein, Melvyn A. Rieff, Asst. State's Attys., Burton Y. Weitzenfeld, Stanley M. Lipnick, John L. Ropiequet, John C. Christie, Jr., Chicago, Ill., Richard J. Denney, Jr., Environmental Protection Agency, Washington, D. C., Frederic O. Floberg, Chicago, Ill., for defendants-appellees.
Before CUMMINGS, SPRECHER and TONE, Circuit Judges.
In the principal case before us in these consolidated proceedings, No. 74-1271, plaintiffs sue to block the construction of a shopping center and the extension and widening of the road along which the shopping center is to be built, relying upon the Clean Air amendments of 1970, the National Environmental Protection Act, and the Equal Protection Clause of the Fourteenth Amendment. They seek to compel the Administrator of the Environmental Protection Agency to promulgate "indirect source" and "significant deterioration" regulations which they hope would preclude the construction of the shopping center and the road expansion (Counts I and II) and to enjoin the road expansion until the Department of Transportation has filed an environmental impact statement pursuant to the National Environmental Protection Act (Count III). Plaintiffs also allege that the Village of Northbrook has denied them equal protection by the adoption of a zoning ordinance which permits the construction of the shopping center (Count IV).
The District Court dismissed the claims under the Clean Air Amendments for failure to comply with the 60-day notice requirement of section 304, 42 U.S.C. § 1857h-2, for failure to state a claim on which relief can be granted, and on the ground that some of the relief requested was already the subject of orders issued by other federal courts. Finding it undisputed that there was no federal involvement in the road expansion project, the court granted summary judgment on the claim that an environmental impact statement should have been filed. The equal protection claim was also held to be without merit. The court entered an order dismissing the action, City of Highland Park v. Train, 374 F.Supp. 758 (N.D.Ill.1974), from which plaintiffs appeal and which we affirm.
Plaintiffs are two municipalities adjacent to the site of the proposed shopping center, a non-profit corporation dedicated to protecting the environment in the area, and various individuals who reside near the site. The defendants are the Administrator of the Environmental Protection Agency, the agency itself, the Secretary of the Department of Transportation, the department itself, the Department of Highways of Cook County, Illinois, the developers of the shopping center, proposed tenants of the shopping center, the Village of Northbrook, in which the shopping center will be located, and the trustees of the village.
The right of way of Lake-Cook Road extends from Lake Michigan along the entire boundary between Lake and Cook Counties to the western end of the boundary and continues on west to the Fox River. Between Milwaukee Avenue and Rand Road, the road is not completed. Where it is completed, it is, for the most part, two lanes wide. In 1967 the Cook County Highway Department initiated plans to expand the completed portions of the road to four lanes and to construct a four-lane extension on the right-of-way where no actual roadway presently exists.
In January, 1973, certain of the defendants announced a plan for the construction of a shopping center on the south side of Lake-Cook Road between Skokie Highway and Waukegan Road. The shopping center, according to the complaint, will occupy one million square feet, have a parking lot accommodating 5,000 cars, and generate 28,400 vehicle trips per day. Ninety percent or more of this traffic will be carried by Lake-Cook Road, the only through-street which provides access to the shopping center. Plaintiffs allege that this traffic "will overwhelm even the proposed four lane expanded roadway," and cause "intolerable" congestion at the intersections of Lake-Cook Road and Skokie Highway and Waukegan Road. As a result, residents of the area will be subjected to substantial "noise and discomfort in the use of their homes and in the use of the streets in their community" and will be exposed to increases in the concentration of carbon monoxide in the ambient air by more than 66 percent over existing levels.
To explain plaintiffs' claims under the Clean Air Amendments of 1970, it is necessary to begin by summarizing pertinent parts of that legislation and its implementation by actions of the Administrator and the states and by certain court decisions. The background and a more complete history of the amendments and their implementation to date appear in Mr. Justice Rehnquist's opinion for the Supreme Court in Train v. Natural Resources Defense Council, Inc., --- U.S. ---, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975).
When the states did not act to fulfill their "primary responsibility" for prevention of air pollution under earlier federal clean air legislation, "Congress reacted by taking a stick to the States in the form of the Clean Air Amendments of 1970, Pub.L. 91-604, 84 Stat. 1676, enacted on December 31 of that year." Train v. Natural Resources Defense Council, Inc., supra, --- U.S. at ---, 95 S.Ct. at 1474. The 1970 Amendments established a program to control air pollution to be carried out by the federal government and the states. The parts of the Amendments pertinent here may be summarized as follows:
The Administrator was required, before specified dates, to publish a list of air pollutants and issue "air quality criteria" containing information about each listed pollutant and its effects on the air. (Section 108, 42 U.S.C. § 1857c-3.) He was also required to establish national "ambient air quality standards" for each air pollutant for which air quality criteria were issued. (Section 109, 42 U.S.C. § 1857c-4.) The states have primary authority to establish "implementation plans" to achieve these standards, but these plans are subject to review by the Administrator. (Section 110, 42 U.S.C. § 1857c-5.)
Two sets of standards were to be prescribed by the Administrator, "primary standards," the "attainment and maintenance of which, in the judgment of the Administrator, based on (air quality) criteria and allowing an adequate margin of safety, are requisite to protect the public health;" and "secondary standards," which "shall specify a level of air quality the attainment and maintenance of which in the judgment of the Administrator, based on such criteria, is requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air." (Section 109(b), 42 U.S.C. § 1857c-4(b).) The Administrator prescribed these standards within the time allowed him by the Act.
Within nine months after the Administrator's promulgation of the national standards, each state was to submit to him a plan providing for the "implementation, maintenance, and enforcement" of the standards. (Section 110(a)(1), 42 U.S.C. § 1857c-5(a)(1).) Each state plan was required to provide for the attainment of the national primary standards "as expeditiously as practicable" and not later than three years after the date the Administrator approved the plan. (Section 110(a)(2)(A)(i), 42 U.S.C. § 1857c-5(a)(2)(A)(i).) The national secondary standards were to be met within a "reasonable time" to be specified in the plan. (Section 110(a)(2)(A)(ii), 42 U.S.C. § 1857c-5(a)(2) (A)(ii).) Each state 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." (Section 110(a)(2)(B), 42 U.S.C. § 1857c-5(a)(2)(B).) Other prerequisites to approval by the Administrator are set forth in the Act. (Section 110(a)(2)(C) through (H), 42 U.S.C. § 1857c-5(a)(2)(C) through (H).)
Within four months after the date a state plan was required to be submitted, the Administrator was required to review the plan to determine whether it satisfied the statutory requirements and to approve or disapprove the plan or each portion thereof. (Section 110(a), 42 U.S.C. § 1857c-5(a).) If the Administrator determined that a state's plan or any portion thereof did not satisfy the statutory requirements, he was to disapprove the plan, or the offending portion thereof, and, within six months after the date the plan was required to be submitted, promulgate his own implementation plan or portion thereof for that state. (Section 110(c)(1), 42 U.S.C. § 1857c-5(c)(1).)
During the period he was reviewing state plans, the Administrator questioned his authority to require those plans to protect against "significant deterioration" of air quality in areas in...
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