Pinkney v. Ohio Environmental Protection Agency, C 73-1159.

• Decision Date: 17 January 1974
• Docket Number: No. C 73-1159.,C 73-1159.
• Citation: 375 F. Supp. 305
• Parties: Charles PINKNEY et al., Plaintiffs, v. OHIO ENVIRONMENTAL PROTECTION AGENCY et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

375 F. Supp. 305

Charles PINKNEY et al., Plaintiffs, v. OHIO ENVIRONMENTAL PROTECTION AGENCY et al., Defendants.

No. C 73-1159.

United States District Court, N. D. Ohio, E. D.

January 17, 1974.

Bernard A. Berkman, Charles M. Delbaum, Lawrence S. Levy, Cleveland, Ohio, for plaintiffs.

George J. Umstead, Mark Schlachet, Cleveland, Ohio, for Edward J. DeBartolo Corp.

Richard J. Dickinson, Columbus, Ohio, for the Ohio Dept. of Industrial Relations, Joe Shump, Donald McMillan and William Brown.

A. Mark Segreti, Jr., Columbus, Ohio, for defendants Ira Whitman and the Ohio Environmental Protection Agency.

Donald C. Freda, Cleveland, Ohio, for Frank Spremulli and Basil Sapienza.

Jeffrey L. Kocian, Cleveland, Ohio, for John H. Puzenski and the Cuyahoga County Sanitation Dept.

Russell E. Train, Administrator, Environmental Protection Agency, Washington, D. C.

Christopher R. Schraff, Columbus, Ohio, for John Gilligan, Governor.

MEMORANDUM OPINION AND ORDER

LAMBROS, District Judge.

This suit is brought on behalf of a class of all residents and property owners in Cuyahoga County, Ohio, alleging violations of the Clean Air Act of 1970 and United States Constitution through the actions or failure to act by governmental officials which relate to a planned shopping mall development. Plaintiffs seek declaratory and injunctive relief against the governmental officials and agencies which they claim have been, will be or should be involved in the granting of permits with respect to the development.

Defendants include the developer, the Edward J. DeBartolo Corporation ("DeBartolo"); officials of the Village of North Randall, Ohio, where the shopping mall will be located; the Cuyahoga County Sanitation Department and the Chief Officer thereof; the Ohio Environmental Protection Agency and its Director; the Ohio Department of Industrial Relations and officials thereof; the Ohio Attorney General and Governor and the Administrator of the Environmental Protection Agency.

The matter is presently before the Court on plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss or for summary judgment. The Court held a hearing on December 17, 1973, which was limited to the issues raised by the motions to dismiss and to a portion of the issues raised by the motion for a preliminary injunction. The Court severed and postponed the hearing on whether plaintiff had been irreparably harmed pending its ruling on the motions to dismiss.¹

Prior to discussing the merits, certain undisputed facts are relevant. Defendant DeBartolo plans to construct a large enclosed shopping center mall and may also construct an apartment and office complex on a parcel of real estate located in the Village of North Randall, Cuyahoga County, Ohio. At the time of the hearing the Village of North Randall had granted building permits with respect to two buildings. The Ohio Department of Industrial Relations had given plan approval for the shopping mall but had issued no building permits.

Plaintiffs oppose the development because they claim that it will attract air-polluting automobiles, it will overburden sewers and will detrimentally affect property values. They have also filed an action in state court charging violations of state and local law but seek in this suit to challenge primarily the absence of statutory procedures to determine the environmental impact of the development.

For reasons which will be more fully explained below, the Court concludes on the basis of the allegations of the complaint and arguments of counsel that the Clean Air Act claims are barred by the plaintiffs' failure to observe the procedural requisites for filing such suits and that the Constitutional claims are without merit.

I. CLEAN AIR ACT CLAIMS

Plaintiffs raise the following three claims which are based on the Clean Air Act of 1970, 42 U.S.C. § 1857 et seq. (the "Act"):

A. That the proposed development will violate those portions of the Act which relate to ambient air quality standards for six pollutants;

B. That Ohio has violated the Act by failing to promulgate regulations for indirect sources of ambient air pollution; and

C. That the Administrator of the Environmental Protection Agency (EPA) has abused his discretion in delaying the effective date of federal regulations with respect to indirect sources of ambient air pollution for 180 days.

The Clean Air Act specifically authorizes civil suits to enforce its provisions and to question the actions of the Administrator. Regarding suits by private citizens for violations of the Act, such as claims A and B above, the Act provides in relevant part:

(a) . . . any person may commence a civil action on his own behalf —(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the Eleventh Amendment to the Constitution) who is alleged to be in violation of (A) an emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation . . . (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. 42 U.S.C. § 1857h-2(a).

With respect to suit suits, the Act requires notice to the Administrator and other defendants 60 days prior to filing such private suits. The relevant language of the Act specifically provides:

(b) No action may be commenced . . . prior to 60 days after plaintiff has given notice of the violation . . . 42 U.S.C. § 1857h-2(b)(1)(A) (Emphasis added.)

In addition to the provisions limiting the manner of commencing private suits for alleged violations of the Act, there are forum limitations for suits seeking review of administrative actions in promulgating regulations under the Act, such as claim C above. In relevant part, the Act limits the forum for such actions as follows:

A petition for review . . . of the Administrator's action in approving or promulgating any implementation plan under section 1857c—5 of this title or section 1857c—6(d) of this title may be filed only in the United States Court of Appeals for the appropriate circuit. 42 U.S.C. § 1857h-5(b)(1).

In this case, the plaintiffs have not provided the 60-day notice required prior to filing a private suit for alleged violations and have not filed the suit in the United States Court of Appeals as required for suits for administrative review. However, they assert that the claims may be maintained in spite of their failure to follow the procedures discussed above, because the claims fall within exceptions to the procedural requirements.

With respect to notice, plaintiffs assert that a statutory provision in the Act disclaiming any intent to restrict rights makes the notice requirements for private suits unnecessary here. The subsection in question provides:

(e) Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief (including relief against the Administrator or a State agency). 42 U.S.C. § 1857h-2(e).

The preceding language, however, clearly refers to suits arising under laws other than the Clean Air Act. Indeed, any other interpretation would render the notice requirements meaningless because suits for violations of the Act would regularly be filed without prior notice. Moreover, this is the interpretation suggested by the legislative history of the Act. In explaining the Senate-originated provision for private suits, the Conference Report states:

Other rights to seek enforcement of standards under other provisions of law were not affected. 1970 U.S.Code Cong. & Admin.News, pp. 5374, 5388 (91st Congr., 2d Sess.) (Emphasis added).

Since all three of plaintiffs' statutory claims are based on rights arising under the Clean Air Act, subsection (e) does not exempt plaintiffs from the mandatory 60-day notice requirement prior to commencing suit.

With respect to the requirement that the challenge to the Administrator's acts should be filed in the United States Court of Appeals, plaintiffs argue that the requirement does not preclude a suit in United States District Court under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Plaintiffs' argument in this respect is, however, contrary to the weight of authority. Generally, if Congress has provided adequate procedures for judicial review within a given statutory scheme, the prescribed procedures are exclusive. 5 U.S.C. § 703; Frito-Lay, Inc. v. F. T. C., 380 F.2d 8 (5th Cir. 1967); United States v. Southern Ry. Co., 364 F.2d 86 (5th Cir. 1966) cert. denied 386 U.S. 1031, 87 S.Ct. 1479, 18 L.Ed.2d 592 (1967). In fact, the Administrative Procedure Act provides explicitly:

The form of proceeding for judicial review is the special statutory proceeding relevant to the subject matter . . . or, in the absence or inadequacy thereof, any applicable form of legal action . . . . 5 U.S.C. § 703 (Emphasis added.)

Since the Clean Air Act provides an adequate provision for judicial review of acts in approving or promulgating any plan and since the delay in the ambient air regulations challenged here is such an act, the plaintiffs are required to follow the prescribed procedures of the Clean Air Act and to file the administrative review claim in the United States Court of Appeals. 42 U.S.C. § 1857h-5 (b)(1).

The failure of plaintiffs to follow the relevant notice and forum requirements for each of their Clean Air Act claims precludes the maintenance of such claims.

II. CONSTITUTIONAL CLAIMS

Plaintiffs raise the following Constitutional claims under 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343 and 1331:

A. That they have a constitutionally protected right to a healthful environment, which has been infringed by Ohio officials;

B. That the lack of...