Council of Commuter Organizations v. Metropolitan Transp. Authority

Decision Date16 June 1982
Docket NumberD,No. 858,858
Citation683 F.2d 663
Parties, 12 Envtl. L. Rep. 20,784 COUNCIL OF COMMUTER ORGANIZATIONS, et al., Plaintiffs-Appellants, v. METROPOLITAN TRANSPORTATION AUTHORITY, et al., Defendants-Appellees. ocket 81-7804.
CourtU.S. Court of Appeals — Second Circuit

David M. Corwin, Brooklyn, N. Y. (William Hoppen, New York City, on the brief), for plaintiffs-appellants.

Francis P. Barron, New York City (David Boies and Cravath, Swaine & Moore, New York City, on the brief), for defendants-appellees Metropolitan Transp. Authority and related authorities and individuals.

Gaines Gwathmey, III, Asst. U. S. Atty., New York City (John S. Martin, Jr., U. S. Atty., Richard N. Papper, Asst. U. S. Atty., New York City, on the brief), for federal defendants-appellees.

John G. Proudfit, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., and Shirley Siegel, Sol. Gen., Albany, N. Y., on the brief), for New York State defendants-appellees.

Marjorie Bornes, Asst. Corp. Counsel, New York City (Frederick A. O. Schwarz, Jr., Corp. Counsel, and Ronald E. Sternberg, Asst. Corp. Counsel, New York City, on the brief), for defendant-appellee Edward I. Koch.

Wikler, Gottlieb, Taylor & Howard, Harry A. Gottlieb, Leonard H. Moche and Glenn Backer, New York City, submitted a brief for defendants-appellees Tri-State Regional Planning Com'n and related individuals.

Before LUMBARD, FRIENDLY and NEWMAN, Circuit Judges.

NEWMAN, Circuit Judge:

Litigation to enforce the complex regulatory pattern established by the Clean Air Act, 42 U.S.C. §§ 7401-7642 (Supp. III 1979), may be brought in a district court or a court of appeals, depending upon the relief sought. In general, a court of appeals may consider challenges to agency action taken by the Environmental Protection Agency (EPA), § 7607(b), 1 and a district court is the proper forum for suits to compel the EPA to take nondiscretionary action and to compel state and local agencies and officials to comply with requirements of a state implementation plan (SIP) approved by EPA, § 7604(a). This suit, and a companion action decided today, Council of Commuter Organizations v. Gorsuch, 683 F.2d 663 (2d Cir. 1982), both concern attempts to enforce the Act in connection with efforts to reduce air pollution in the New York City metropolitan area. The difficulty of that task and the resulting range of issues thrust upon reviewing courts are illustrated by the fact that both suits, fundamentally concerned with the environmental problem of air pollution, require judicial consideration of such diverse topics as bridge tolls and mass transit systems. The companion case challenged EPA's September 9, 1981 action approving various revisions of New York's SIP that concern improving mass transit. This suit, brought before EPA acted, challenged the agency's failure to act and the failure of various state and local agencies to comply with SIP requirements, some of which have been superseded by EPA's 1981 action. The suit was brought by the Council of Commuter Organizations and other concerned individuals and groups. The District Court for the Southern District of New York (Milton Pollack, Judge), dismissed the suit, ruling that some of the claims were moot in light of the EPA's 1981 action, other claims were premature for lack of the statutory 60-day notice, and the complaint in general was vague and conclusory. 524 F.Supp. 90. We affirm the dismissal of the suit, although we find the issues somewhat more complex than did the District Court.

I.

In the companion case, Council of Commuter Organizations v. Gorsuch, supra, we uphold EPA's 1981 approval of New York's proposed plan for mass transit improvements. We assume familiarity with that decision and recount only in brief the statutory background of legislative changes to the Clean Air Act and the history of New York's attempts to reduce intolerably high levels of pollution in the New York City metropolitan area as required by the Act. In 1973, EPA approved a revision to New York's SIP that added transportation-related measures to New York's plan for reduction of carbon monoxide and ozone pollution levels in the New York City metropolitan area (hereafter "1973 plan"). 38 Fed.Reg. 16550, 16560 (June 22, 1973). In its 1973 plan, New York chose to impose tolls on the bridges into Manhattan across the East and Harlem rivers and to implement three public transit strategies-marketing public mass transit, coordinating bus and subway facilities, and rehabilitating the existing transit system, see 46 Fed.Reg. 44979, 44982 (Sept. 9, 1981). We previously upheld in large part EPA's 1973 approval of the revisions and thereafter affirmed a court order enforcing the bridge toll strategy. See Friends of the Earth v. USEPA, 499 F.2d 1118 (2d Cir. 1974); Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir. 1976); Friends of the Earth v. Carey, 552 F.2d 25 (2d Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 296, 54 L.Ed.2d 188 (1977).

On May 24, 1979, as part of its Part D revisions, §§ 7501-7508, New York submitted a revised plan containing public transportation improvement and transportation control measures designed to comply with the requirements of both the Moynihan-Holtzman Amendment, § 7410(c)(5), and the so-called "missing" Part D requirement, § 7410(a)(3)(D). This plan proposed various transit improvement projects designed to enhance fare stability, operational safety and reliability, comfort, security, and availability of service in the transit system, as well as new transportation control strategies. 2 In particular, the plan's fare stability component required the maintenance of the 50-cent transit fare through 1981 and limited increases thereafter to less than increases in the cost of living. On May 21, 1980, EPA conditionally approved 3 all elements of New York's plan as meeting the requirements of Part D and the Moynihan-Holtzman Amendment except those relating to mass transit improvement. The new transportation control strategies and a plan for updating emissions inventories (as required by § 7502(b)(4)) were among the measures approved in EPA's conditional approval (hereafter "1980 plan"). 45 Fed.Reg. 33981 (May 21, 1980); 44 Fed.Reg. 70754, 70771-72 (Dec. 10, 1979). Then on June 30, 1980 EPA proposed to disapprove the mass transit elements of New York's plan. 45 Fed.Reg. 43794 (June 30, 1980).

Meanwhile on June 26, 1980 plaintiffs served a 60-day notice, § 7604(b), of their intent to initiate a citizen suit to compel enforcement of the mass transit improvement requirement of the Moynihan-Holtzman Amendment and to enjoin a proposed fare increase. In July 1980, the transit fare was increased from 50 cents to 60 cents, contrary to the commitment to maintain the 50-cent fare through 1981 that was part of the fare stabilization component of New York's proposed plan for public transportation improvement. 4 Then, on December 3, 1980, plaintiffs filed their complaint in this action against various state and local agencies and officials and federal officials of EPA and the Department of Transportation under the citizen suit provision of the Clean Air Act, § 7604(a). On March 3, 1981, the District Court dismissed the complaint under Fed.R.Civ.P. 8 with leave to replead. The amended complaint, filed on March 30, 1981, sought among other things (1) to compel EPA to perform its non-discretionary duty to approve or disapprove New York's proposed plan, see § 7410(a)(2); Connecticut Fund for the Environment, Inc. v. EPA, 672 F.2d 998, 1010 (2d Cir. 1982); Citizens for a Better Environment v. Costle, 515 F.Supp. 264 (N.D.Ill.1981); (2) to compel EPA to issue notices of violations of New York's 1973 plan, 1980 plan, and proposed mass transit improvement plan to various state and local officials under § 7413(a)(1); and (3) to order the enforcement of the provisions of New York's plans that were alleged to have been violated by the state and local defendants (including the commitment to maintain the transit fare at 50 cents through 1981). The District Court placed the matter on the Court's suspense calendar pending final action on New York's mass transit improvement plan by EPA.

EPA then proposed to delete the transportation control strategies of New York's 1973 plan as superseded by the new transportation control strategies of the conditionally approved 1980 plan and to delete the 1973 plan's mass transit improvement strategies from New York's SIP once EPA gave final approval to New York's still unapproved new mass transit program. 46 Fed.Reg. 39612 (Aug. 4, 1981). In September 1981, EPA gave final approval to the mass transit elements of New York's plan (hereafter "1981 plan"). 46 Fed.Reg. 44979 (Sept. 9, 1981). EPA's reasons for deciding to approve the submittal after its initially proposed disapproval are outlined in our decision in the companion case, Council for Commuter Organizations v. Gorsuch, supra. New York's commitment to supply additional implementing details and schedules for the transit plan by July 1, 1982 was critical to EPA's decision to approve the plan. In December 1981, EPA formally deleted the 1973 plan's transportation-related strategies from New York's SIP in accord with its proposed action of August 4, 1981. 46 Fed.Reg. 62063 (Dec. 22, 1981).

Following EPA's approval of New York's mass transit plan (1981 plan) but prior to the formal deletion of the 1973 plan's transportation-related strategies, the District Court on October 13, 1981 dismissed plaintiffs' amended complaint. The District Court found that EPA's September 1981 approval mooted plaintiffs' claims alleging violations of the preexisting SIP as well as the attempt to compel EPA to approve or disapprove New York's transit improvement submittal. As for plaintiffs' claims of violations of the just approved 1981 plan, including the fare increases in violation of the state's fare stabilization strategy, the District Court found...

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