Coalition Against Columbus Center v. City of New York, s. 564

• Decision Date: 22 June 1992
• Docket Number: D,Nos. 564,577 and 701,s. 564
• Citation: 967 F.2d 764
• Parties: , 22 Envtl. L. Rep. 21,154 COALITION AGAINST COLUMBUS CENTER; Selma Arnold; Ross Graham; Al Hehn; Columbus Center Travel, Ltd.; Coalition Against Lincoln West, Inc., Plaintiffs-Appellees-Cross-Appellants, v. CITY OF NEW YORK; the Board of Estimate of the City of New York; Department of Housing Preservation & Development of New York City; Metropolitan Transportation Agency; Triborough Bridge and Tunnel Authority; the New York City Industrial Development Agency; Coliseum Associates, Defendants-Appellants-Cross-Appellees. ockets 91-7746, 91-7754 and 91-7846.
• Court: U.S. Court of Appeals — Second Circuit

Page 764

967 F.2d 764

35 ERC 1552, 22 Envtl. L. Rep. 21,154

COALITION AGAINST COLUMBUS CENTER; Selma Arnold; Ross Graham; Al Hehn; Columbus Center Travel, Ltd. Coalition Against Lincoln West, Inc. Plaintiffs-Appellees-Cross-Appellants, v. CITY OF NEW YORK; the Board of Estimate of the City of New York; Department of Housing Preservation & Development of New York City; Metropolitan Transportation Agency Triborough Bridge and Tunnel Authority; the New York City Industrial Development Agency; Coliseum Associates Defendants-Appellants-Cross-Appellees.

Nos. 564, 577 and 701, Dockets 91-7746, 91-7754 and 91-7846.

United States Court of Appeals, Second Circuit.

Argued Dec. 13, 1991.

Decided June 22, 1992.

Linda H. Young, New York City (Victor A. Kovner, Corp. Counsel, Antonia Levine, Daniel Turbow, Ellen B. Fishman, Jerome Tarnoff, Theodore S. Steingut, Berger Steingut Tarnoff & Stern, on the brief), for Mun. defendants-appellants-cross-appellees.

Robert P. LoBue, New York City (Stephen P. Younger, David C. McIntyre, Steven Russo, Patterson, Belknap, Webb & Tyler, on the brief), for defendants-appellants-cross-appellees Metropolitan Transp. Authority and Triborough Bridge & Tunnel Authority.

Gaines Gwathmey III, Jay Cohen, Robert A. Atkins, Joseph Brennan, Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Paul Selver, Elise Wagner, Brown & Wood, submitted a brief), for defendant- appellant-cross-appellee Coliseum Associates.

John T. Van Der Tuin, New York City (Stuits, Balber, Horton & Slotnik, Jerry H. Goldfeder, Pesetsky, Goldfeder & Bookman, on the brief), for plaintiffs-appellees-cross-appellants.

Before: NEWMAN, KEARSE, and CARDAMONE, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal involves an attempt by various citizen groups, individual neighbors, and local businesses to block the sale and redevelopment of a 3.4-acre site on the western side of Manhattan's Columbus Circle for alleged noncompliance with applicable environmental and regulatory requirements. The site is currently occupied by the New York City Coliseum and an adjacent 26-story office building. Defendants are the developer of the site, Boston Properties, acting through defendant Coliseum Associates, as well as numerous municipal entities--the City of New York (the "City"), the Board of Estimate of the City of New York, the Department of Housing Preservation and Development of the City of New York, the Triborough Bridge and Tunnel Authority ("TBTA"), the Metropolitan Transportation Authority (the parent of TBTA), and the New York City Industrial Development Agency ("NY IDA"). The proposed project would replace the existing buildings and underground parking garage at the site with a new garage and a residential, office, and retail building of more than 70 floors.

Defendants appeal from the July 10, 1991, judgment of the District Court for the Southern District of New York (Shirley Wohl Kram, Judge), granting summary judgment to plaintiffs on their claim under the so-called "citizen suit" provision of the Clean Air Act ("CAA" or "the Act"), 42 U.S.C.A. § 7604 (West 1983 & Supp.1992), to require the defendants to comply with the Act as implemented by New York's State Implementation Plan. Coalition Against Columbus Circle v. City of New York, 769 F.Supp. 478 (S.D.N.Y.1991). Defendant Coliseum Associates appeals from the portion of the judgment holding it jointly and severally liable for a potential fine of at least $15 million for future violations of the Act. Plaintiffs cross-appeal from the dismissal on summary judgment of their pendent claims alleging that: (1) the garage portion of the development required a permit pursuant to N.Y.Comp.Codes R. & Regs. tit. 6, Part 203 (1983) ("NYCCRR"); (2) if a Part 203 permit is not required, the project must obtain a City Planning Permit under the New York City Zoning Resolution, Art. I, ch. 3; (3) the proposed project involves defendant NY IDA in the construction or rehabilitation of residential housing, in violation of its enabling legislation, N.Y.Gen.Mun.Law § 917(c) (McKinney 1986 & Supp.1992); and (4) the agreements ratifying the proposed project must be annulled because of violations of state conflict of interest laws, N.Y.Pub.Off.Law § 73(7) (McKinney 1988).

We reverse the portion of the judgment granting summary judgment to plaintiffs on their Clean Air Act claim, and grant summary judgment in favor of the defendants on this issue. We affirm the portion of the judgment granting summary judgment to the defendants on the pendent claims for the reasons set forth in the District Court's opinion. 769 F.Supp. at 491-98.

Facts

A. Regulatory framework under the Clean Air Act. We have previously canvassed the "complex interplay" between federal and state environmental requirements, see Wilder v. Thomas, 854 F.2d 605, 608-10 (2d Cir.1988) (Wilder II ), cert. denied, 489 U.S. 1053, 109 S.Ct. 1314, 103 L.Ed.2d 583 (1989), and therefore provide only the details necessary for an understanding of the present dispute. The CAA entrusts the Environmental Protection Agency ("EPA") to promulgate national ambient air quality standards ("NAAQS") for certain pollutants including carbon monoxide ("CO"). 42 U.S.C. § 7409 (1988). Each state must develop, subject to EPA approval, a State Implementation Plan ("SIP") to implement, maintain, and enforce the NAAQS for each regulated pollutant. 42 U.S.C.A. § 7410 (West Supp.1992).

In 1977 Congress amended the Act, Pub.L. No. 95-95, §§ 101-406, 91 Stat. 685 (1977), to extend the deadline for attainment of carbon monoxide standards in "nonattainment" areas, including New York. 42 U.S.C. § 7502(a)(2). See generally Council of Commuter Organizations v. Gorsuch, 683 F.2d 648, 651-52 (2d Cir.1982) (describing 1977 amendments). These nonattainment areas were required to submit revised SIP's to comply with the stringent so-called "Part D" requirements, 42 U.S.C. §§ 7501-7508, or face a moratorium on the construction or modification of major stationary sources of pollution. Id. § 7410(a)(2)(I). The Part D requirements were designed, in part, to allow the states to attain the NAAQS for carbon monoxide and ozone "as expeditiously as practicable" but no later than December 31, 1982. Id. § 7502(a)(1). States such as New York with especially severe pollution problems could receive an additional extension to December 31, 1987, by complying with additional requirements. Id. § 7502(c). The New York revised carbon monoxide SIP at issue here was submitted in January 1984.

The 1990 amendments to the Clean Air Act, Pub.L. No. 101-549, §§ 101-1101, 104 Stat. 2399 (1990), provided varying dates for attainment of the NAAQS for carbon monoxide depending on whether the EPA classified an area as one with "Moderate" or "Serious" nonattainment. 42 U.S.C.A. § 7512(a)(1) (West Supp.1992). Because the EPA has classified New York City as a "moderate" nonattainment area for CO, the City must attain the primary NAAQS for CO "as expeditiously as practicable" but not later than December 31, 1995. Id. § 7512(a)(1). Any moderate nonattainment area that fails to meet the 1995 deadline will be reclassified as "serious," id. § 7512(b)(2), and receive five more years to achieve compliance, id. § 7512(a)(1). The amendments require the states to submit a revised SIP to implement, maintain, and enforce the new NAAQS deadlines. Id.

The current New York State SIP relies primarily on Environmental Impact Statements ("EIS") to evaluate projects that may have a significant impact on environmental quality. See New York State Air Quality Implementation Plan for Control of Carbon Monoxide and Hydrocarbons in New York City Metropolitan Area § 3.6 (rev. Jan. 1984). As an indirect source of pollution, the proposed project, with its likely effect on vehicle traffic, ¹ was required to submit an EIS by the State Environmental Quality Review Act ("SEQRA"), see N.Y.Envtl.Conserv.Law § 8-0109(2) (McKinney 1984 & Supp.1992). EIS's are also mandated under similar circumstances by the National Environmental Policy Act, 42 U.S.C. § 4332 (1988) (EIS required for certain major federal actions) and under the New York City Environmental Quality Review, N.Y. City Charter § 197c.

At issue on this appeal is section 3.6 of the New York State SIP, which describes the carbon monoxide problem in the New York City metropolitan area, describes the state statutory environmental review process for indirect sources of pollution, and makes specific commitments for the use of the environmental review process in New York City, Nassau County, and Westchester County. Subsection 3.6(A) of the SIP provides specific commitments for New York City to identify and mitigate violations of the NAAQS for carbon monoxide and provides in pertinent part that:

To further ensure that the carbon monoxide standard is attained in New York City, if an EIS for a project proposal identifies a violation or exacerbation of the carbon monoxide standard, 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.

Section 3.6 of the New York SIP contains separate commitments for Nassau and Westchester counties. See SIP § 3.6(B), (C).

Plaintiffs here attempt to use the citizen suit provision of the Act to enforce the City's commitment to mitigate CO emissions. That provision authorizes private citizens to bring an action in a district court to enforce "any condition or requirement under an applicable implementation plan relating to transportation control measures...." 42 U.S.C.A. § 7604(f)(3) (West Supp.1992).

B. The proposed development. The City acquired the project site in 1953 and sold its use and occupancy rights to the TBTA. In 1956, the TBTA built and has since operated on the site an office building and a convention center, the New York Coliseum. In the early 1980's, after the construction of...