Wilder v. Thomas
| Decision Date | 10 August 1988 |
| Docket Number | D,No. 288,288 |
| Citation | 854 F.2d 605 |
| Parties | , 57 USLW 2163, 18 Envtl. L. Rep. 21,285 Stephen F. WILDER, Brendan Gill, Imre J. Rosenthal, Stephen Rosenthal, Robert Neuwirth, Lori Jean Saich, and the Whitby Tenants' Association, Plaintiffs- Appellants, v. Lee M. THOMAS, as Administrator of the United States Environmental Protection Agency, United States Environmental Protection Agency; Region II of the United States Environmental Protection Agency; New York State Urban Development Corporation; Vincent Tese, as Chairman of the New York State Urban Development Corporation; Times Square Redevelopment Corporation; Carl Weisbrod, as President of the Times Square Redevelopment Corporation; New York State Department of Environmental Conservation; Henry G. Williams, as Commissioner of the New York State Department of Environmental Conservation; Department of Environmental Protection of the City of New York; Harvey W. Schultz, as Commissioner of the Department of Environmental Protection to the City of New York; Mario M. Cuomo, as Governor of the State of New York; and Edward I. Koch, as Mayor of the City of New York, Defendants-Appellees. ocket 87-7516. |
| Court | U.S. Court of Appeals — Second Circuit |
Jacob Friedlander, New York City (LeBoeuf, Lamb, Leiby & MacRae, John S. Kinzey, Jonathan E. Polonsky, Stephen Orel, Steven R. Lazar; Norman Dorsen, New York City, of counsel), for plaintiffs-appellants.
Stephen Kass, New York City (Berle, Kass & Case, Jean M. McCarroll, David A. Hansell, Joanne M. Gentile, Gail S. Port, Joseph C. Petillo, of counsel), for defendants-appellees New York State Urban Development Corp.
Peter L. Zimroth, New York City (Corp. Counsel of the City of New York, Leonard Koerner, Fay Leoussis, of counsel), for New York City defendants-appellees.
Robert Abrams, New York City, Atty. Gen. of the State of New York , for defendants-appellees New York State Department of Environmental Conservation, Henry G. Williams and Mario M. Cuomo.
Before FEINBERG, Chief Judge, OAKES, and PRATT, Circuit Judges.
This appeal arises from the most recent in a long series of actions that have been brought in state and federal courts by these plaintiffs and others similarly situated, who seek to forestall construction of the proposed 42nd Street Development Project ("the project") in New York City. The facts surrounding the impetus for the project and the complex procedural machinations that have accompanied the planning stages are described in Jackson v. N.Y. State Urban Dev. Corp., 67 N.Y.2d 400, 503 N.Y.S.2d 298, 494 N.E.2d 429 (1986), aff'g 110 A.D.2d 304, 494 N.Y.S.2d 700 (1st Dep't 1985). The goal of the project is to eliminate "physical, social and economic blight" in the Times Square area, Rosenthal & Rosenthal, Inc. v. N.Y. State Urban Dev. Corp., 771 F.2d 44, 45 (2d Cir.1985) (citing Natural Resources Defense Council, Inc. v. City of New York, 672 F.2d 292, 294 (2d Cir.), cert. dismissed, 456 U.S. 920, 102 S.Ct. 1963, 72 L.Ed.2d 462 (1982)), cert. denied, 475 U.S. 1018, 106 S.Ct. 1204, 89 L.Ed.2d 317 (1986). After extensive study and review pursuant to state statute, the City of New York, the New York State Urban Development Corporation ("UDC"), its subsidiary, the Times Square Redevelopment Corporation, and various private developers have decided that this goal will be achieved by the construction of four office towers, a hotel, eight renovated theatres, a wholesale mart, restaurants, retail spaces, and a renovated subway station. See Jackson, 503 N.Y.S.2d at 302-03, 494 N.E.2d at 433-34. The project area has been divided into twelve sites between 40th and 43rd streets.
Opposition to the project by area business owners and residents, historical preservationists, and environmentalists has so far produced more than two dozen actions against the project. Residents fear that they will be driven out by skyrocketing property values; environmentalists claim that the project will exacerbate traffic congestion, thereby increasing levels of air pollution; others seek to preserve landmark theatres from demolition. There have already been unsuccessful challenges under the antitrust laws, Cine. 42nd St. Theatre Corp. v. Nederlander Org., 609 F.Supp. 113 (S.D.N.Y.1985), aff'd, 790 F.2d 1032 (2d Cir.1986); on first amendment, due process and equal protection grounds, G & A Books v. Stern, 604 F.Supp. 898 (S.D.N.Y.), aff'd, 770 F.2d 288 (2d Cir.1985), cert. denied, 475 U.S. 1015, 106 S.Ct. 1195, 89 L.Ed.2d 310 (1986); as an allegedly unconstitutional exercise of the eminent domain power, Rosenthal & Rosenthal, Inc. v. N.Y. State Urban Dev. Corp., 605 F.Supp. 612 (S.D.N.Y.), aff'd, 771 F.2d 44 (2nd Cir.1985); and under New York City's Uniform Land Use Review Procedure, Rosenthal & Rosenthal, Inc. v. New York City Bd. of Estimate, 114 A.D.2d 1054, 495 N.Y.S.2d 549, aff'd, 67 N.Y.2d 349, 502 N.Y.S.2d 707, 493 N.E.2d 931 (1986).
In addition to filing two of the aforementioned suits, the plaintiffs in this case (except Brendon Gill and the Whitby Tenants' Association) also brought a proceeding under Article 78 of New York's C.P.L.R. There they challenged UDC's compliance with the State Environmental Quality Review Act ("SEQRA") in analyzing the environmental impact of the proposed project. See Rosenthal v. New York State Urban Dev. Corp., 110 A.D.2d 304, 494 N.Y.S.2d 700 (1st Dep't 1985), aff'd, 67 N.Y.2d 400, 503 N.Y.S.2d 298, 494 N.E.2d 429 (1986) (consolidated with Jackson v. New York State Urban Dev. Corp.). They focus particularly on perceived problems with levels of carbon monoxide in the Times Square area.
Plaintiffs discontinued the action against three federal defendants who were named in the original complaint in this case. An order dismissing the action as to those defendants was entered on July 28, 1986.
Plaintiffs appeal from a judgment of the United States District Court for the Southern District of New York, Thomas P. Greisa, Judge, that dismissed their action brought under the citizen suits provision of the Clean Air Act ("CAA"), 42 U.S.C. Sec. 7401 et seq., on the ground that the proposed amended complaint failed to state a claim. Plaintiffs alleged that defendants violated requirements of the CAA relating to transportation control measures set out in New York State's implementation plan, which was adopted pursuant to CAA Sec. 7410. In essence, plaintiffs claim that construction of the project will lead to further violations of the CAA, and they seek an injunction against construction of the project.
Plaintiffs rely in particular on Sec. 7604(a) which provides, in pertinent part, that "any person may commence a civil action on his own behalf * * * against any person * * * [or] governmental instrumentality or agency * * * who is alleged to be in violation of * * * an emission standard or limitation under this chapter". 42 U.S.C. Sec. 7604(a)(1)(A). "Emission standard or limitation" is defined as including "any condition or requirement under an applicable implementation plan relating to transportation control measures", Sec. 7604(f)(3). A citizen may also commence a civil action against the administrator of the Environmental Protection Agency ("EPA") where the administrator fails to perform any nondiscretionary duty under the CAA. Sec. 7604(a)(2).
Because implementation of the act involves a complex interplay of state and federal responsibilities, see Concerned Citizens of Bridesburg v. Envtl. Protection Agency, 836 F.2d 777, 779 (3d Cir.1987); Connecticut v. Envtl. Protection Agency, 696 F.2d 147, 151 (2d Cir.1982); Council of Commuter Orgs. v. Gorsuch, 683 F.2d 648, 651 (2d Cir.1982), it is necessary to examine the procedural requirements of both the state and federal statutory environmental protection schemes and the extent to which the defendants have, insofar as the planning of the project is concerned, complied with these requirements.
SEQRA, enacted in 1975 and codified as N.Y. Envtl. Conserv. Law Sec. 8-0101 et seq. (McKinney 1984), was designed, in part, to fill a gap left by the National Environmental Policy Act, 42 U.S.C. Secs. 4321, 4332 et seq., which imposed an obligation on federal agencies to consider the environmental consequences of federally funded or approved projects. A key provision in SEQRA is the requirement that state and local agencies prepare an environmental impact statement ("EIS") on any action they propose or approve that "may have a significant effect on the environment." N.Y. Envtl. Conserv. Law Sec. 8-0109.2. See 503 N.Y.S.2d at 303-04, 494 N.E.2d at 434-35. The purpose of the EIS "is to provide detailed information about the effect which a proposed action is likely to have on the environment, to list the ways in which any adverse effects of such an action might be minimized, and to suggest alternatives to such an action so as to form the basis for a decision whether or not to undertake or approve such action." N.Y. Envtl. Conserv. Law Sec. 8-0109.2.
The CAA was designed to prevent and control air pollution by providing "Federal financial assistance and leadership * * * for the development of cooperative Federal, State, regional, and local programs to prevent and control air pollution." 42 U.S.C. Sec. 7401(a)(3), (4). The CAA amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1679 (1970), amended by Pub. L. 95-95, Title I, Sec. 106, 91 Stat. 691 (1977), required the EPA to promulgate national ambient air quality standards ("NAAQS") for various air pollutants, including carbon monoxide. See Sec. 7409 (National Primary and Secondary Air Quality Standards); 40 C.F.R. Sec. 50.8 (1987); Council of Commuter Orgs. v. Gorsuch, 683 F.2d at 651. The NAAQS for carbon monoxide is "9 parts per million * * * for an 8-hour average concentration not to be exceeded more than once per...
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