Council of Commuter Organizations v. Thomas
| Decision Date | 28 August 1986 |
| Docket Number | No. 456,D,456 |
| Parties | , 55 USLW 2166, 16 Envtl. L. Rep. 20,927 COUNCIL OF COMMUTER ORGANIZATIONS, Committee for Better Transit, Inc., Barry Benepe, and Stephen B. Dobrow; Action for Rational Transit, Petitioners, v. Lee M. THOMAS, Administrator, and the United States Environmental Protection Agency, Respondents, and State of New York, Intervenor. ocket 85-4128. |
| Court | U.S. Court of Appeals — Second Circuit |
David R. Wooley, Asst. Atty. Gen., Albany, N.Y. , for intervenor.
William Hoppen, New York City (David M. Corwin, New York City, on brief), for petitioners.
Susan L. Smith, U.S. Dept. of Justice, Washington, D.C. (F. Henry Habicht II, Asst. Atty. Gen., U.S. Dept. of Justice, Washington, D.C., Mark Stanga, U.S. E.P.A., Washington, D.C., Francis S. Blake, Gen. Counsel, William F. Pederson, Assoc. Gen. Counsel, Peter H. Wyckoff, Asst. Gen. Counsel, U.S. E.P.A., Washington, D.C., Gary Cohen, New York City, on brief), for respondents.
Before VAN GRAAFEILAND, NEWMAN, and MINER, Circuit Judges.
In the aftermath of our decision in Council of Commuter Organizations v. Gorsuch, 683 F.2d 648 (2d Cir.1982) ("CCO I "), we return to the continuing efforts of commuter groups in the New York City metropolitan area to convert the national effort to combat air pollution into a local battle to improve mass transit. In CCO I, though the commuter groups lost that round of litigation against the United States Environmental Protection Agency (EPA), they secured some basis for believing that the next steps to be taken by the State of New York in complying with the requirements of the Clean Air Act, as amended, 42 U.S.C. Secs. 7401-7626 (1982 & Supp. II 1984), would not only make the air cleaner but would also make mass transit better. It now appears that such optimism, which we admit we shared, was not well founded. The reason for disappointment is that New York has changed its mind as to the mass transit steps it will commit itself to take in complying with the Act. Though the State is willing to improve mass transit and is spending increased amounts of money for this purpose, it has backed away from commitments that we and the plaintiffs expected to be detailed when New York submitted to EPA the 1982 revision of its State Implementation Plan (SIP). That 1982 revision was approved by EPA in a June 17, 1985, ruling, which is now challenged on this petition for review. For reasons that follow, we conclude, as did EPA, that the Act permits New York to change its mind and that the 1985 approval is not erroneous in any of the respects urged by the petitioning commuter groups. We therefore deny the petition for review.
Regrettably, the nature of the issue and the basis of our decision emerge only after detailed examination of the complex statutory and regulatory scheme and the history of New York's prior efforts to satisfy the Act's requirements. Perhaps one day Congress will try to remove the smog that obscures understanding of the Act, even as it legislates to clean the air. Until then, we must do the best we can with the materials at hand.
The statutory scheme and New York's prior efforts at compliance are outlined in detail in CCO I, 683 F.2d at 651-55, and will only be highlighted here. States are required to include in a SIP transportation control strategies where necessary to meet air quality standards promulgated by EPA. See Sec. 7410(a)(2)(B); Natural Resources Defense Council, Inc. v. EPA, 475 F.2d 968 (D.C.Cir.1973) (per curiam). In 1973 EPA approved an amendment to New York's SIP in which New York proposed, among other things, to curtail automobile use in New York City and thereby reduce air pollution by imposing tolls on the bridges over the East and Harlem Rivers. 38 Fed.Reg. 16,550, 16,560 (1973). In 1977 Congress amended the Act to permit states previously committed to bridge tolls as a means of curtailing air pollution to remove such tolls provided that, in return, the states would undertake new obligations. The nature of those new obligations is at the heart of the current dispute.
The toll-removal provision is contained in the Moynihan-Holtzman Amendment, section 7410(c)(5). States opting to remove tolls previously promised in a SIP are required to revise their SIPs not later than August 7, 1978, to include comprehensive measures to
(i) establish, expand, or improve public transportation measures to meet basic transportation needs, as expeditiously as is practicable; and
(ii) implement transportation control measures necessary to attain and maintain national ambient air quality standards.
Sec. 7410(c)(5)(B). This subsection also specifies that such measures shall
provide for emissions reductions equivalent to the reductions which may reasonably be expected to be achieved through the use of the tolls or charges eliminated.
Id. New York is subject to the requirements of section 7410(c)(5) not only because it opted to remove the bridge tolls but also because these same requirements apply, by virtue of the so-called "missing Part D," to areas like New York City that could not meet air quality standards for ozone and carbon monoxide by 1982 and requested an extension until 1987 to meet such standards. See Sec. 7410(a)(3)(D); CCO I, 683 F.2d at 652-53.
In 1979 New York, having elected to remove the bridge tolls, submitted to EPA a revision of its SIP to comply with the Moynihan-Holtzman Amendment. The 1979 submission included more than 40 transit improvement projects to satisfy the statutory requirement that a state must establish, expand, or improve transit "to meet basic transportation needs." New York identified five criteria for defining basic transportation needs: (1) fare stability, (2) operational safety and reliability, (3) comfort, (4) environment and security, and (5) availability and convenience of service. To achieve fare stability the State proposed to maintain the then current New York City transit fare of 50 cents through 1981 with increases thereafter to be less than increases in the cost of living. The State indicated that it would rely primarily on fair stabilization to satisfy the requirement of achieving emission reductions equivalent to what the bridge tolls would have achieved, but that a combination of the transportation measures it proposed could be expected to reduce emissions by at least as much as the 0.4 per cent reduction that would have been achieved by the bridge tolls.
On June 30, 1980, already two years after the date by which Congress specified that transportation measures complying with the Moynihan-Holtzman Amendment were to be included in New York's SIP, EPA proposed to disapprove the public transit elements of New York's 1979 submission. 45 Fed.Reg. 43,794 (1980). Among the reasons for disapproval was the lack of sufficient implementing schedules and details by which progress toward meeting "basic transportation needs" could be measured. EPA did propose to approve New York's demonstration that its fare stabilization policy would satisfy the equivalent emission reduction requirement but cautioned that this conclusion would have to be reassessed in light of the then pending proposal to increase the 50-cent fare. In the ensuing notice and comment period concerning EPA's proposed rejection of the 1979 submission, New York filed numerous objections to EPA's proposed findings. In particular, New York complained that EPA had judged New York's transit proposals against EPA's own undefined view of "basic transportation needs" instead of according the State an appropriate role in defining its own needs and determining how to meet them.
Perhaps in response to this criticism, EPA and the Department of Transportation jointly announced in the fall of 1980 a proposed federal policy on meeting the "basic transportation needs" requirement of the Moynihan-Holtzman Amendment. 45 Fed.Reg. 62,170 (1980). 1 The new policy made clear that "basic transportation needs" would be "defined locally in recognition of the wide diversity of transportation needs and pollution problems across this country." Id. at 62,171. More significantly, the new policy endeavored to give content to the phrase "basic transportation needs." Paragraph 1.1 provides:
The basic transportation needs requirement calls for development of transit and para-tran[si]t measures that are necessary to maintain mobility where transportation control strategies are implemented.
Though the issuance of this new policy would become the focal point of the EPA ruling that is the subject of the pending petition for review, the new policy did not affect the course of EPA's further consideration of New York's 1979 SIP revision. That submission was ultimately given conditional approval by EPA in the fall of 1981, 46 Fed.Reg. 44,979 (1981). The approval noted the lack of detail concerning New York's transit improvement proposals and that fare increases had occurred in July 1980 and July 1981. EPA therefore conditioned its approval of the 1979 submission on New York's furnishing further details of its transit improvement measures and reports on the air quality impact of the fare increases in its next SIP revision, which the State was required to file by July 1, 1982. Sec. 7502 note, 7502(c).
In CCO I, we denied, with some reluctance, the petition for review brought to challenge EPA's conditional approval of New York's 1979 SIP revision. We were troubled by EPA's conditional approval technique, since it permitted New York's 1979 SIP revision to remain incomplete until a full four years after the date on which Congress had specified the revision should be made. Nevertheless, having previously permitted conditional approvals, see Friends of the Earth v. EPA, 499 F.2d 1118, 1124 (2d Cir.1974), we approved EPA's action. We noted that a remand...
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