Friends of the Earth v. Carey
| Decision Date | 26 April 1976 |
| Docket Number | D,No. 557,557 |
| Citation | 535 F.2d 165 |
| Parties | , 6 Envtl. L. Rep. 20,488 FRIENDS OF the EARTH et al., Plaintiffs-Appellants, v. Hugh CAREY et al., Defendants-Appellees. ocket 75-7497. |
| Court | U.S. Court of Appeals — Second Circuit |
David Schoenbrod, New York City (Ross Sandler, Natural Resources Defense Council, Inc., New York City, of counsel), for plaintiffs-appellants.
Alexander Gigante, Jr., New York City (W. Bernard Richland, Corp. Counsel, Nina G. Goldstein, New York City, Atty., Isaac Klepfish, New York City, of counsel), for defendants-appellees Beame, Codd, Eisenpreis, Kove, Guggenheimer, Low, Lazar, Zuccotti, Tarshis, O'Dwyer, Karagheuzoff and The City of New York.
James P. McMahon, Brooklyn, N. Y. (Stuart Riedel, Brooklyn, N. Y., Nancy A. Serventi, New York City, Atty., Terrance J. Nolan, Brooklyn, N. Y., of counsel), for defendant-appellee New York City Transit Authority.
Before MANSFIELD, TIMBERS and MESKILL, Circuit Judges.
This appeal arises out of the efforts of a group of the country's leading environmental and citizens' groups to enjoin and roll back the increase in New York City transit fares from 50 cents to 35 cents per ride and to enforce the "clean air" provisions of the Transportation Control Plan for the Metropolitan New York City Area ("the Plan"), which have long been approved pursuant to the Clean Air Act Amendments of 1970, 42 U.S.C. §§ 1857, et seq. ("the Act"). Defendants include the State and City of New York and named officials of both governmental entities as well as officials of the New York City Transit Authority 1 ("TA"). The dispute raises important questions concerning the viability of the citizen suit provision of the Act, § 304, 42 U.S.C. § 1857h-2, and the enforceability of the air quality standards enacted by Congress under that statute.
To understand the issues a brief preliminary outline of the relevant statutory provisions governing the state's obligation to clean up the air of Metropolitan New York City is necessary. 2 Expressing dissatisfaction with earlier efforts at air pollution abatement, 3 Congress enlarged the federal government's role through enactment of the Clean Air Act Amendments of 1970, 42 U.S.C. §§ 1857, et seq. The United States Environmental Protection Agency ("EPA") was instructed to establish national air quality standards of two types: (1) "primary ambient" (outdoor surrounding air) standards necessary for protection of the public health, § 109(b)(1), 42 U.S.C.
§ 1857c-4(b)(1), and (2) "secondary ambient" standards "requisite to protect the public welfare from any known or anticipated adverse effects associated with" air pollution, § 109(b)(2). Each of the 50 states was obligated within nine months thereafter to submit to the EPA an implementing plan for achievement of these standards, § 110(a)(1), 42 U.S.C. § 1857c-5(a)(1). In particular, the states' plans were to satisfy the primary, health-related standards "as expeditiously as practicable" but in no case later than three years from the date of EPA approval, § 110(a)(2)(A)(i), and the secondary standards within a "reasonable time" to be fixed by a timetable, § 110(a)(2)(A)(ii). According to the approved timetable, state plans were to be filed by April 1973 and the primary air quality standards met by May 31, 1975. See Natural Resources Defense Council, Inc. v. E.P.A., 154 U.S.App.D.C. 384, 475 F.2d 968 (1973). Should a state plan prove unsatisfactory in satisfying the ambient standards, the EPA itself is directed by Congress to develop an appropriate implementing plan in its stead, § 110(c)(1).
Since abatement and control of air pollution through systematic and timely attainment of the air quality standards is Congress' overriding objective, a plan, once adopted by a state and approved by the EPA, becomes controlling and must be carried out by the state. Modifications are permitted by the Act only cautiously and grudgingly. The EPA is authorized to approve revisions of the original plan, § 110(a)(3), only if it is satisfied that the revised plan still meets the requirements of the national air quality standards, § 110(a)(2). In addition, a state may request postponement of plan implementation "for not more than one year," 4 § 110(f), provided it "can satisfy the stringent conditions" imposed by that provision, 5 Train v. N.R.D.C., 421 U.S. 60, 90, 95 S.Ct. 1470, 1487, 43 L.Ed.2d 731, 752 (1975). In all other cases full compliance with the plan is mandated. See id. at 89-90, 95 S.Ct. at 1486-1487, 43 L.Ed.2d at 751-752.
The history of New York State's steps toward compliance with the Clean Air Act through July 1974 is detailed in our prior opinion. See Friends of the Earth v. E.P.A., 499 F.2d 1118 (2d Cir. 1974). It is sufficient for present purposes to note that the State submitted to the EPA a plan called the Transportation Control Plan for the Metropolitan New York City Area ("the Plan"), containing 32 mandatory "strategies" or schedules of specific actions to be taken by certain dates to abate air pollution. The strategies were designed to meet the 1975 primary air quality deadline, to maintain air quality beyond that date, to create contingency steps or procedures should the primary strategies fail, and to plan for attainment of the secondary ambient air quality standards. The Plan was approved by the EPA on June 22, 1973, with certain revisions.
In 1974 environmental and citizens' groups attacked the Plan by way of a petition for review, Friends of the Earth v. E. P. A., supra, arguing that several of the strategies were vaguely worded and inadequate in light of the air pollution standards mandated by the Act. Officials from the federal and state governments defended the strategies. We upheld the Plan in most respects, returning a few provisions to the EPA for further explanation. Friends of Nevertheless, enforcement of the Plan's strategies suffered because of inaction on the part of those legally obligated to put it into effect. In 1974, at the original argument before this court, the State had already fallen behind in compliance and consequently both the EPA and citizen groups requested that the court order immediate enforcement of the Plan's strategies. The court, however, was unable at that time, because of lack of jurisdiction, to order compliance, 499 F.2d at 1128, in the absence of a suit to enforce the Plan. The Act expressly provides only two methods for securing enforcement: a suit initiated by the EPA, § 113, 42 U.S.C. § 1857c-8, or a citizen suit pursuant to § 304, 42 U.S.C. § 1857h-2, which authorizes citizens, as private attorneys general, to enforce state implementation plans provided (a) the citizen gives 60 days' notice of a violation to the EPA, the state and the alleged violator, and (b) the EPA or state has failed within the 60-day period to secure compliance or to bring an action for enforcement. Section 304(a)(1) provides that upon meeting these requirements
the Earth v. E.P.A., supra. Consequently, with the acceptance by the EPA and judicial ratification by this court, the Plan became binding upon and enforceable against state and local officials, subject only to the narrow revision and postponement provisions allowed by the Act.
Pursuant to this authority the present citizen action was commenced.
On August 5, 1974, plaintiffs served their citizen suit notice of violation, § 304(b)(1)(A), and, after the required 60-day notice period had expired without compliance by the State and without the initiation of enforcement proceedings by the EPA, plaintiffs on October 11, 1974, commenced their action in the Southern District of New York and applied for preliminary relief. The City sought to avoid injunctive relief on the ground that the Plan was in the process of being formally revised. The State's Assistant Attorney General, on the other hand, adopted a somewhat ambivalent position. See Friends of the Earth v. Wilson, 389 F.Supp. 1394, 1395-96 (S.D.N.Y.1974). He admitted "that he had a great deal of difficulty with his clients' arguments." He also acknowledged that the Plan "is a legally enforceable plan, is a legally adequate plan and that the state is committed . . . to fulfilling its responsibilities thereunder." However, he then informed the court that the while admitting that "(i)f there is a valid legal ground for such a refusal, we have not been able to find it, your honor." In addition, he disputed the legal contention of both the city officials and the State Department of Environmental Conservation "that the proposed revision precluded enforcement of the plan," by noting that the revision was "speculative at best" and that the Governor-elect had opposed any such revision. Events a mere four days later proved the speaker correct concerning the uncertain nature of the "pending" revision.
The district court, Kevin T. Duffy, Judge, recognized that the State and City in effect conceded that they were in noncompliance with the Plan. However, on December 16, 1974, Judge Duffy denied relief, stating that in light of the proposed revision he would await clarification of the EPA's position and that the court lacked the expertise to supervise enforcement, which would involve "highly technical" problems. 389 F.Supp. at 1396.
Four days later the EPA ruled that the State had failed to complete its application In late July the Transit Authority...
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