# Petition for Writ of Certiorari — Wilder v. New York State Urban Development Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 1053

## Text

SAI LOS % | someone vs
IN THE JAN 3 1988
Supreme Court of the United Spatessrr F seavior ve
OcToBER TERM, 1988 enor

STEPHEN F. WILDER, BRENDAN GILL, IMRE J. ROSENTHAL,
STEPHEN ROSENTHAL, ROBERT NEUWIRTH, LORI JEAN SAIGH,
and the WHITBY TENANTS’ ASSOCIATION,

Petitioners,
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 DEVELOP-
MENT CORPORATION; VINCENT TESE, as Chairman of the New York
State Urban Development Corporation; TIMES SQUARE REDEVELOP-
MENT CORPORATION; ROBERT M. HALL, 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 Con-
servation; DEPARTMENT OF ENVIRONMENTAL PROTECTION OF
THE CITY OF NEW YORK; HARVEY W. SCHULTZ, as Commissioner
of the Department of Environmental Protection of 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,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

JouN S. KINZEy
LeBorur, Lams, LerBy & MACRAE

Of Counsel: 520 Madison Avenue
JacoB FRIEDLANDER New York, New York 10022
JONATHAN E. PoLONsKy (212) 715-8000
STEPHEN OREL Counsel of Record
-and-

NorRMAN DorsEN
RicHARD L. REvEsz
40 Washington Square South
New York, New York 10012
(212) 998-6100

Counsel for Petitioners

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QUESTIONS PRESENTED

1. Whether the decision of the court of appeals departed from
the collateral estoppel principles established by this Court in
Commissioner v. Sunnen, 333 U.S. 591 (1948), and Montana v.
United States, 440 U.S. 147 (1979), in a manner that will seriously
undermine the important federal interest in uniform national
standards and enforcement under the Clean Air Act and will,
unnecessarily and without due respect for federal/state comity,
channel environmental litigation into the federal courts.

2. Whether the court of appeals erroneously held that, in en-
forcement proceedings under the Clean Air Act, economic and
social considerations can defeat the attainment of federal am-
bient air quality standards.

PARTIES TO THE PROCEEDING

Three of the parties listed in the caption as respondents, Lee
M. Thomas as Administrator of the United States Environmental
Protection Agency, the United States Environmental Protection
Agency and Region II of the United States Environmental Pro-
tection Agency, were not part of the proceedings below. Peti-
tioners discontinued the action against these federal defendants
and an order dismissing the action as to them was entered by
the district court on July 28, 1986.

STATEMENT PURSUANT TO RULE 28.1

The Whitby Tenants’ Association is an organization of tenants
and has no corporate parent.

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ................... i
PARTIES TO THE PROCEEDING ............ i
STATEMENT PURSUANT TO RULE 28.1...... i
pe yo ii
py Fs ig ty § fs. iv
eo i's ak obs see ce akan e's 2
GR A 2
STATUTES AND REGULATIONS INVOLVED . 2
STATEMENT OF THE CASE ................. 3
Mm. Peeemre Gf the Action ....................-. 3
B. Legislative and Administrative Background ... 3
C. The 42nd Street Development Project ........ 7
D. The State Court Proceedings................ 8
E. The Proceedings and Decisions Below........ 8
REASONS FOR GRANTING THE PETITION... 10

I. THE DECISION BELOW IS CONTRARY TO
PRIOR DECISIONS OF THIS COURT ON
THE APPLICATION OF COLLATERAL
ESTOPPEL AND THWARTS THE
IMPORTANT FEDERAL POLICY OF
UNIFORMITY IN THE ADMINISTRATION
Soe meee Gemmeere MOU ASE ...... 2.2.2.2... 10

Page

A. The Issues Presented in this Clean Air Act
Enforcement Action Are Not Identical in All
Respects to the Issues Presented in the Prior

TR 6 oS aaa ous chs kane os 10

B. The Second Circuit’s Preclusion of Clean Air
Act Enforcement Because of a State Court
SEQRA Review Thwarts the Important
Federal Policy of Uniform National
Standards Embodied in the Act............ 14

C. Additional Reasons Support the Grant of
Certiorari to Review the Collateral Estoppel
Determinations of the Court Below......... 15

II. THE COURT SHOULD RESOLVE A
CONFLICT AMONG THE CIRCUITS ON
THE IMPORTANT FEDERAL QUESTION
OF WHETHER ECONOMIC AND SOCIAL
CONSIDERATIONS ARE COGNIZABLE IN
ENFORCEMENT PROCEEDINGS UNDER
pp ee 17

III. THE DECISION BELOW IS
INCONSISTENT WITH ESTABLISHED
POLICIES OF THIS COURT BECAUSE
LITIGANTS SEEKING TO VINDICATE
THEIR RIGHTS TO A SAFE AND CLEAN
ENVIRONMENT WOULD BE INDUCED
TO BYPASS STATE COURT REMEDIES
AND CHANNEL ENVIRONMENTAL
LITIGATION INTO THE FEDERAL
ES hake ihe le Soe ed ce arc ake ws 22

OE 20 Ores ee cece eae oe: 26

APPENDIX

iv
TABLE OF AUTHORITIES

A. Cases: Page

Alexander v. Gardner-Denver Co., 415 U.S. 36
| Pry ere er eaten: 22

Allen v. McCurry, 449 U.S. 90 (1980) .......... 16

Bethlehem Steel Corp. v. EPA, 638 F.2d 994 (7th
Sa: Rh koa beets ecsea enw sete 19, 20

Capital Tel. Co. v. Pattersonville Tel. Co., 56
N.Y.2d 11, 451 N.Y.S.2d 11 (1982) ........... lln

Commissioner v. Sunnen, 333 U.S. 591 (1948) ... i, 10, 11

Cullen v. Margiotta, 811 F.2d 698 (2d Cir.), cert.
denied, 107 S. Ct. 3266 (1987) ............... ln

Duquesne Light Co. v. EPA, 698 F.2d 456 (D.C.
CA SES iid o hs Sov oda os ae 15

Friends of the Earth v. Carey, 535 F.2d 165 (2d
Re Ns a bn os ree co Certs ees eee 5, 19

Friends of the Earth v. Potomac Electric Power
Co., 419 F. Supp. 528 (D.D.C. 1976) ........ 19, 20n

Friends of the Earth v. Potomac Electric Power
Co., 546 F. Supp. 1357 (D.D.C. 1982) ....... 25

Gulf Offshore Co. v. Mobil Corp., 453 U.S. 473
| pe are aerrere er err phan Oe ii 22

Page
Jackson v. New York State Urban Develovment
Corp., 110 A.D.2d 304, 494 N.Y.S.2d 700 (Ist
Dep't 1985), aff'd, 67 N.Y.2d 400, 503
es Ss OE COD 6 6.6 os 0s dccdeakweda ci cces passim
Kleinberger v. Town of Sharon, 116 A.*>.2d 367,
501 N.Y.S.2d 746 (3d Dep’t 1986) ............ 13n
Kremer v. Chemical Construction Corp., 456
U.S. 461 (1982) ....... 0.000000, 15, 16,
24
Marrese v. American Academy of Orthopaedic
Surgeons, 470 U.S. 373 (1985) ............... lln
Migra ». Warren City School Dist. Bd. of Educ.,
465 U.S. 75 (1984) .. 0.22. ee. ln
Montana v. United States, 440 U.S. 147 (1979)... i, 11, 13,
16
Natural Resources Defense Council, Inc. v. Train,
510 F.2d 692 (D.C. Cir. 1975)............... 5, 25
New York Gaslight Club, Inc. v. Carey, 447 U.S.
54 (1980) 0... eee. 22
Pennhurst State School and Hospital v.
Halderman, 465 U.S. 89 (1984) .............. 23
Schwartz v. Public Adm’r of Bronx, 24 N.Y.2d
65, 298 N.Y.S.2d 955 (1969) .........0.000... 13n
Silberstein v. Silberstein, 218 N.Y. 525, 113 N.E.
495 (1916) .. 0... eee. 13n

Train v. Natural Resources Defense Council, Inc.,
421 U.S. 60 (1975) .... 00. 18

lle

vi

Union Electric Co. v. EPA, 427 U.S. 246 (1976) .

United States v. Ford Motor Co., 814 F.2d 1099
(6th Cir.), cert. denied, 108 S. Ct. 83 (1987) ..

United States v. SCM Corp., 667 F. Supp. 1110
ee Er et rs,

United States v. Utah Construction & Mining
a Se Ue GE SIs ov on cea ccncavenecs’s

United States v. Wheeling-Pittsburgh Steel Corp.,
818 F.2d 1077 (Sd Cir. 1967) ................

University of Tennessee v. Elliot, 478 U.S. 788
BS et ee Peer re Terre

B. Statutes And Regulations:
Clean Air Act, 42 U.S.C. §§ 7401 et seq.........
40 Code of Federal Regulations § 50.8(a)(1) .....
40 Code of Federal Regulations Part 52 .........
Judicial Code, 28 U.S.C. § 1254(1) .............
Judicial Code, 28 U.S.C. § 1738

te eee So ook et 2 4.6 6 @

New York Civil Practice Law and Rules 217
fo 2 en eee eee

New York State Environmental Quality Review
Act, N.Y. Envtl. Conserv. Law §§ 8-0101 et
seq. (McKinney 1984 and 1988 Supp.)

New York State Air Quality Implementation Plan
For Control of Carbon Monoxide and
Hydrocarbons in New York City Metropolitan
Area

Page

passim

20, 21n

20

16

20

16

passim

lin

24

Vii

C. Other Authorities:

Conf. Rep. No. 1783, 91st Cong., 2d Sess.,
reprinted in 1970 U.S. Code Cong. & Admin.
eee, ORE ae Pear Oe en a

Gold, Clean Water, Federalism and the Res
Judicata Impact of State Judgments in Federal

Environmental Litigation, 16 U.C. Davis L.
a ry re eee

H.R. Rep. No. 1146, 91st Cong., 2d Sess.,
reprinted in 1970 U.S. Code Cong. & Admin.
Sl eco erat oe ey a

H.R. Rep. No. 294, 95th Cong., Ist Sess.,
reprinted in 1977 U.S. Code Cong. & Admin.
MIE eee eustan ol o ie er Tk: sss

New York State Urban Development Corp..,
Findings With Respect to 42nd Street
Development Project, New York, New York,
ee re ee

S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) ....

Page

23

15

14

15

12

18

IN THE
Supreme Court of the United States

OcrTosBer TERM, 1988
POOR eticnes

STEPHEN F. WILDER, BRENDAN GILL,
IMRE J. ROSENTHAL, STEPHEN ROSENTHAL,
ROBERT NEUWIRTH, LORI JEAN SAIGH, and the
WHITBY TENANTS’ ASSOCIATION,

Petitioners,
Vv

LEE M. THOMAS, as Administrator of the United States En-
vironmental Protection Agency; UNITED STATES EN-
VIRONMENTAL 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; ROBERT M. HALL,
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 Conser-
vation; DEPARTMENT OF ENVIRONMENTAL PROTEC-
TION OF THE CITY OF NEW YORK; HARVEY W.
SCHULTZ, as Commissioner of the Department of En-
vironmental Protection of 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,

Respondents.

> <> ia nenans

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Petitioners Stephen F. Wilder, Brendan Gill, Imre J. Rosen-
thal, Stephen Rosenthal, Robert Neuwirth, Lori Jean Saigh, and
the Whitby Tenants’ Association (hereafter collectively referred
to as “petitioners”) respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the United States Court
of Appeals for the Second Circuit in the above-entitled
proceeding.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the
Second Circuit is reported at 854 F.2d 605 and is reprinted in
the Appendix at A-1. The opinion of the United States District
Court for the Southern District of New York is reported at 659
F. Supp. 1500 and is reprinted in the Appendix at A-32.

JURISDICTION

The order of the court of appeals was entered on August 10,
1988. A timely petition for rehearing was denied on September
7, 1988. See Appendix at A-31. A timely application for an ex-
tension of time in which to file a petition for a writ of certiorari
was granted on November 28, 1988 by Justice Thurgood Mar-
shall to and including January 3, 1989. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1254(1).

STATUTES AND REGULATIONS INVOLVED

The statutes and regulations invoked are Sections 110 and 304
of the Clean Air Act, 42 U.S.C. §§ 7410 and 7604, which are
set out in the Appendix at A-53 and A-71; Section 8-0109 of the
New York State Environmental Quality Review Act, N.Y. Envtl.
Conserv. Law § 8-0109 (McKinney 1984 and 1988 Supp.), which
is set out in the Appendix at A-75; and Section 3.6(A) of the
New York State Air Quality Implementation Plan for Control
of Carbon Monoxide and Hydrocarbons in New York City
Metropolitan Area which is set out in the Appendix at A-80.

STATEMENT OF THE CASE
A. Nature of the Action

The issues presented in this petition arise from the overlap-
ping schemes of federal environmental regulation and state en-
vironmental review that govern the 42nd Street Development
Project (the “Project”), a large state-sponsored urban renewal
Project in West Midtown Manhattan. The Project is subject to
the environmental impact statement requirements of the New
York State Environmental Quality Review Act (““SEQRA’”), N.Y.
Envtl. Conserv. Law §§ 8-0101 et seg. (McKinney 1984 and 1988
Supp.), and to the substantive air quality mandates of the federal
Clean Air Act (the “Act”), 42 U.S.C. §§ 7401 et seq., enforced
through the New York State Implementation Plan (“SIP”).

Subsequent to approval of the Project in 1984, petitioners
challenged the environmental impacts of the Project in the state
courts under SEQRA and in the federal courts under the Clean
Air Act. The federal courts below found petitioners’ Clean Air
Act claims estopped on the basis of prior adverse state court
SEQRA determinations.

Petitioners are seeking certiorari because the decision below
is contrary to prior decisions of this Court on the application
of collateral estoppel and thwarts the important federal policy
of uniformity in the administration of the Clean Air Act. It also
exacerbates a conflict among the circuits on the important
federal question of whether economic and social considerations
are cognizable in enforcement proceedings under the Clean Air
Act. Moreover, the decision below is inconsistent with established
policies of the Court because litigants seeking to vindicate their
rights to a safe and clean environment would be induced to
bypass state court remedies and channel environmental litiga-
tion into the federal courts.

B. Legislative and Administrative Background

The Clean Air Act was enacted in response to Congress’s deter-
mination “that the growth in the amount and complexity of air

pollution brought about by urbanization, industrial develop-
ment and the increasing use of motor vehicles, has resulted in
mounting dangers to the public health and welfare . . ” 42 U.S.C.
§ 7401. The Act is intended “to promote and enhance the quality
of the Nation’s air resources so as to promote the public health
and welfare and the productive capacity of its population.” Jd.

Pursuant to the Act, the Environmental Protection Agency
(“EPA”) has promulgated national ambient air quality standards
(“NAAQS”) for various air pollutants. 42 U.S.C. § 7409. In the
case of carbon monoxide, these standards establish the maximum
permissible eight-hour concentration of this harmful contami-
nant at 9 parts per million (“ppm”). 40 C.F.R. § 50.8(a)(1).

Each state must adopt comprehensive state implementation
plans that set forth the strategies by which it will implement,
maintain and enforce the NAAQS established by EPA. 42 U.S.C.
§ 7410; see 40 C.F.R. Part 52. Most central to this petition is
the requirement in the New York SIP for carbon monoxide that,
for projects in the City of New York, “the City commits to assure
that mitigating measures will be implemented by the project
sponsor or the City, so as to provide for attainment of the stan-
dard by December 31, 1987 and maintenance of it thereafter.”
SIP § 3.6(A) (emphasis added) (A-82). The SIP also calls for
special attention to problems arising from the rapid growth in
West Midtown Manhattan and to any additional mitigating
measures that may be necessary to respond to changing condi-
tions in that area. (A-83).

As a supplement to governmental enforcement of the SIP’s
requirements, section 304 of the Clean Air Act provides for en-
forcement by means of citizen suits. 42 U.S.C. § 7604 (A-71).
This citizen suit provision is an important part of the Act’s
remedial scheme:

In enacting § 304 ..., Congress made clear that
citizen groups are not to be treated as nuisances or

troublemakers but rather as welcomed participants
in the vindication of environmental interests. Fear-
ing that administrative enforcement might falter or
stall, “the citizen suits provision reflected a deliberate
choice by Congress to widen citizen access to the
courts, as a supplemental and effective assurance that
the Act would be implemented and enforced.”

Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d Cir. 1976)
(quoting Natural Resources Defense Council, Inc. v. Train, 510
F.2d 692, 700 (D.C. Cir. 1975)). A citizen suit can be brought
to redress violations of the Clean Air Act’s standards and limita-

tions, including provisions or requirements of SIPs. 42 U.S.C.
§ 7604(f)(3) (A-73).

In contrast to the mandatory air quality requirements of the
Clean Air Act, which call for actual attainment of the NAAQS,
the state law provisions of SEQRA contemplate a balance be-
tween social and economic goals on the one hand, and concerns
about the environment on the other. The central requirement
of SEQRA is the preparation of an environmental impact state-
ment (“EIS”) for any action requiring state approval that “may
have a significant effect on the environment.” N.Y. Envtl. Con-
serv. Law § 8-0109(2) (McKinney 1984) (A-75).' The EIS must
contain a description of the proposed action, including its en-
vironmental impact and any unavoidable adverse effects, alter-
natives to the proposed action and mitigation measures designed

' At least twenty-seven other jurisdictions have some form of environmental
impact statement requirements. Besides New York, thirteen other states and
Puerto Rico have comprehensive statutory requirements like SEQRA. See
California Environmental Policy Act, CAL. PUB. RES. CODE §§ 21000-21193
(West 1986 & Supp. 1988); Connecticut Environmental Policy Act of 1973,
CONN. GEN. STAT. ANN. §§ 22a-l - 22a-27 (West 1987); Governor’s Executive
Order of August 21, 1974, as supplemented by HAW. REV. STAT. §§ 343-1
- 343-8 (1985 & Supp. 1987); IND. CODE ANN. §§ 13-1-10-1 - 13-1-10-8 (Burns
1987 & Supp. 1988); Maryland Environmental Policy Act of 1973, MD. NAT.

(Footnote continued)

to minimize the adverse environmental impacts. Jd. SEQRA re-
quires state agencies to “choose alternatives which, consistent
with social, economic and other essential considerations, to the

RES. CODE ANN. §§ 1-301 - 1-305 (1983 & Supp. 1988); Massachusetts En-
vironmental Policy Act, MASS. GEN. LAWS ANN. ch. 30, §§ 61-62H (West
1979 & Supp. 1988); Minnesota Environmental Policy Act of 1973, MINN.
STAT. ANN. §§ 116D.01 - 116D.07 (West 1987 & Supp. 1989); MONT. CODE
ANN. §§ 75-1-101 - 75-1-324 (1987); North Carolina Environmental Policy Act
of 1971, N.C. GEN. STAT. §§ 113A-1 - 113A-10 (1987 & Supp. 1988); South
Dakota Environmental Policy Act, S.D. CODIFIED LAWS ANN. §§ 34A-9-1
- 34A-9-13 (1986 & Supp. 1988); Virginia Environmental Quality Act, VA.
CODE ANN. §§ 10.1-1208 - 10.1-1212 (1985 & Supp. 1988); State Environmental
Policy Act of 1971, WASH. REV. CODE ANN. §§ 43.21C.010 - 43.21C.910 (West
1983 & Supp. 1989); Wisconsin Environmental Policy Act of 1971, WIS. STAT.
ANN. § 1.11 (West 1986 & Supp. 1988); Public Policy Environmental Act, P.R.
LAWS ANN. tit. 12, §§ 1121-1142 (1978 & Supp. 1987). One state, Michigan,
has a more comprehensive statutory scheme. See Michigan Environmental Pro-
tection Act of 1970, MICH. COMP. LAWS ANN. §§ 691.1201 - 691.1207 (West
1981 & Supp. 1988). Four states have promulgated extensive executive orders.
See Michigan Executive Directive 1971-10, as superseded by Michigan Executive
Order 1973-9, as superseded by Michigan Executive Order 1974-4 (May 1974);
New Jersey Executive Order No. 53 (Oct. 15, 1973); Policy for the Environ-
ment (Mar. 7, 1972), published in Environment for Tomorrow: The Texas
Response, updated by The Environment Policy — Guidelines and Procedures
for Processing EIS’s (Nov. 1974); State of Utah Executive Order (Aug. 27, 1974).
Nine states require environmental impact assessments in certain limited con-
texts. See Game and Fish Commission Policy of July 2, 1971; Memorandum
by the Arizona Game and Fish Commission, Requirements for Environmen-
tal Impact Statements (June 9, 1971); ARIZ. REV. STAT. ANN. § 30-654 (1986
& Supp. 1988); Coastal Zone Act, DEL. CODE ANN. tit. 7, §§ 7001-7003
(1974, Supp. 1980 & Interim Supp. 1981); The Tidal Wetlands Act, DEL.
CODE ANN. tit. 7, §§ 6601-6620 (1983 & Supp. 1986); GA. CODE ANN.
§§ 32-1-1 - 32-6-203 (1985 & Supp. 1988); KY. REV. STAT. ANN. § 278.025
(Baldwin 1987); Coastal Wetlands Protection Law, MISS. CODE ANN. §§
49-27-1 - 49-27-69 (Supp. 1988); NEB. DEPT. OF ROADS ACTION PLAN
(1973), as revised by, NEB. DEPT. OF ROADS, ENVIRONMENTAL ACTION
PLAN (1975); NEV. REV. STAT. §§ 321.640 - 321.770 (1986 & Supp. 1987);
Coastal Area Facility Review Act, N.J. STAT. ANN. §§ 13:19-1 - 13:19-21; The
Wetlands Act of 1970, N.J. STAT. ANN. §§ 13:9A-1 - 13:9A-10; N.J. STAT. ANN.
§ 12:5-3 (West 1979 & Supp. 1988); Rhode Island Environmental Rights Act,
R.I. GEN. LAWS § 10-20-1 - 10-20-11 (1985 & Supp. 1988).

maximum extent practicable, minimize or avoid adverse en-
vironmental effects.” Id. § 8-0109(1) (A-75). Unlike the Clean
Air Act, nothing in SEQRA requires the achievement of a par-
ticular level of air quality.

C. The 42nd Street Development Project

Respondent New York State Urban Development Corpora-
tion (“UDC”), jointiy with agencies of the City of New York,
has planned and is preparing for the construction of the 42nd
Street Development Project.’ The Project, if built, will be ac-
companied by significant increases in traffic levels and carbon
monoxide concentrations in the 42nd Street area.

As the Project’s sponsor, the UDC recognized that the Pro-
ject is an indirect source of air pollution because it will attract
traffic. As required by SEQRA, the UDC prepared an EIS for
the Project, which found that, absent effective mitigation
measures, carbon monoxide levels in the Project area after the
Project’s completion would exceed the maximum lawful levels
permitted by the Clean Air Act. (A-8, 108). With mitigation,
carbon monoxide concentrations in the Project area would,
depending on the exact location, reach as high as 9.3 ppm. Id.
The UDC also found that, even with mitigation measures, car-
bon monoxide levels in excess of the NAAQS would exist during
the Project’s construction. (A-8, 109-110). In addition, the
City’s Department of Environmental Protection (“DEP”), which

* The Project is a large real estate development that will fundamentally change
the nature of Times Square and the surrounding areas of Manhattan by greatly
intensifying commercial development. The Project involves a thirteen-acre site
in Manhattan between Times Square and Eighth Avenue and from 40th to
42nd Streets. If consummated, the Project would level existing buildings in
the historic Times Square area and replace them with four new office towers,
providing over four million feet of office space; a new 740-room hotel with
commercial and restaurant space; and a new “merchandise mart” containing
2.4 million square feet.

reviewed the Project’s EIS, also found that violations of the
NAAQS would persist, despite the mitigation measures, even
after the Project’s completion.

D. The State Court Proceedings

Prior to the filing of the instant action, some of the petitioners
herein commenced an action in the New York state courts rais-
ing procedural and substantive challenges under SEQRA to the
Project’s EIS,’ including a challenge to EIS’s determination of
the Project’s impact on traffic and air quality. Jackson v. N.Y.
State Urban Development Corp., 67 N.Y:2d 400, 426, 503
N.Y.S.2d 298, 311 (1986), on appeal from 110 A.D.2d 304, 494
N.Y.S.2d 700 (Ist Dep’t 1985).* The state courts upheld the UDC’s
actions in connection with the preparation of the EIS.

E. The Proceedings and Decisions Below

Petitioners brought this action under the citizen suit provi-
sions of the Clean Air Act, 42 U.S.C. § 7604 (A-71), to require
respondents to carry out their duties under the SIP with respect
to the planning and construction of the Project. In their Amend-
ed Complaint,’ set out in the Appendix at A-84, petitioners

* Petitioners’ SEQRA claims were consolidated in the lower state court with
SEQRA claims brought by other parties (the “Jackson plaintiffs”) and, on ap-
peal, with separate challenges to the Project brought under the New York Emi-
nent Domain Procedure Law by some of the petitioners and by the Jackson
plaintiffs.

* The state court SEQRA proceedings also raised claims that the UDC had
given inadequate attention to the Project’s impact on the elderly, area ar-
cheology and the City’s water tunnel; had used stale data; and had modified
the Project after the EIS, as well as raising certain procedural deficiencies.
None of these claims is relevant to this petition.

* On respondents’ motions to dismiss the original complaint, the trial court
found that the allegations of the complaint did not sufficiently identify the
provisions of the SIP on which petitioners’ claims were based. The trial court

(Footnote continued)

eee

allege that the traffic control measures the UDC found necessary
to prevent unlawful concentrations of carbon monoxide will not
be adequate to achieve compliance with the NAAQS, and that,
whether or not the mitigation measures are sufficient if fully
implemented, the City and State respondents have not made
the commitment to implement those measures required of them
by the SIP. (Claim 2; 44 36 to 42) (A-92). The Amended Com-
plaint further alleges that the City and State respondents failed
to undertake the mandated review of the Project’s interactions
with other development in West Midtown Manhattan. Further,
respondents have not carried out their duty under the SIP to
reassess continuously the adequacy of the SIP’s traffic control
measures, and to report annually to the EPA whether those traf-
fic control measures are effective or in need of strengthening.
(Claims 4 and 5; 44 50 to 62) (A-94).°

On May 13, 1987, the district court issued an opinion dismiss-
ing the action, effectively denying petitioners leave to file their
Amended Complaint. In addition, the district court concluded
that no further amendment of the complaint could cure the defi-
ciencies in the petitioners’ claims and therefore denied petitioners
leave to file a further pleading. (A-51).

The United States Court of Appeals for the Second Circuit
affirmed the judgment of the district court in an opinion by

gave petitioners leave to submit a proposed amended complaint, but defer-
red decision on whether leave to amend would actually be granted until the
proposed amended complaint had been prepared and reviewed. Petitioners
submitted the proposed Amended Complaint on July 16, 1986.

* Petitioners also alleged that construction and completion of the Project will
assure the continued existence of carbon monoxide “hot spots” in the Project
area after the deadline set in the SIP for their elimination (Claim 1, A-90),
that DEP and DEC failed to compute and report carbon monoxide emission
reductions in prior years for Midtown Manhattan (Claim 3, A-93), and that
DEP’s and DEC’s evaluation of the Project under the SIP was untimely (Claim
6, A-97). These claims were dismissed by the courts below on grounds other
than collateral estoppel and are not at issue in this petition.

10

Judge Pratt. (A-1). The court of appeals affirmed the dismissal
of the second, fourth and fifth claims solely on the ground that
petitioners’ claims were collaterally estopped because the ade-
quacy of the UDC’s proposed mitigation measures had been con-
clusively established in the New York State courts’ affirmance
of the UDC’s determinations pursuant to the state law provi-
sions of SEQRA.

REASONS FOR GRANTING THE PETITION

I. THE DECISION BELOW IS CONTRARY TO PRIOR
DECISIONS OF THIS COURT ON THE APPLICA-
TION OF COLLATERAL ESTOPPEL AND
THWARTS THE IMPORTANT FEDERAL POLICY
OF UNIFORMITY IN THE ADMINISTRATION OF
THE CLEAN AIR ACT.

The court of appeals’ holding that petitioners’ second, fourth
and fifth claims for relief under the Clean Air Act are preclusive-
ly barred by the prior state court SEQRA determination goes
far beyond what the Court previously has recognized as the prop-
er limits on the application of collateral estoppel. It is plain from
a review of the respective federal and state regulatory schemes
that the issues decided in the federal and state proceedings are
not identical. If left unreviewed, the Second Circuit’s decision
would seriously undermine the important goal of uniformity
under the Clean Air Act.

A. The Issues Presented in this Clean Air Act Enforcement
Action Are Not Identical in All Respects to the Issues
Presented in the Prior SEQRA Review.

In Commissioner v. Sunnen, 333 U.S. 591 (1948), the Court
held that collateral estoppel “must be confined to situations
where the matter raised in the second action is identical in all
respects with that decided in the first proceeding and where the

—

ll

controlling facts and applicable rules remained unchanged.” Jd.
at 599-600. The Court emphasized that “[i]f the legal matters
determined in the earlier case differ from those raised in the
second case, collateral estoppel! has no bearing on the situation.”
Id. at 600.’

In Montana v. United States, 440 U.S. 147 (1979), the Court
reaffirmed this principle in the context of a case that, like the
instant action, turned on the preclusive effect of a state court
adjudication in a subsequent federal adjudication. The Court
made clear that collateral estoppel was appropriate only where
the legal standards in the state and federal cases were identical,
and the issue was “actually and necessarily determined” in the
prior proceeding. Id. at 153.

The court below departed from these collateral estoppel prin-
ciples because the issues raised in this action under the Clean
Air Act differ significantly from the issues addressed by the state
courts under SEQRA. In this citizen suit to enforce the SIP, the
relevant question is whether the Project’s mitigation measures
will achieve and maintain the absolute air quality standard of
the NAAQS as mandated by the SIP; in contrast, the relevant
question in the state proceedings was whether such measures
minimized departures from the NAAQS, consistent with various
competing considerations. These are plainly different standards.

’ The federal courts are required by 28 U.S.C. § 1738 to give a prior state court
judgment the same preclusive effect that it would have in the courts of that
state under applicable state law. (A-19); Marrese v. American Academy of Or-
thopaedic Surgeons, 470 U.S. 373, 380-81, 384 (1985); Migra v. Warren City
School Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). The standard under New
York state law is the same as that established by this Court. Under New York
law, ‘ “the issue as to which preclusion is sought [must] be identical with the
issue decided in the prior proceeding;’ but issues are not identical when the
standards governing them are significantly different.” Cullen v. Margiotta,
811 F.2d 698, 732 (2d Cir.), cert. denied, 107 S.Ct. 3266 (1987) (citing Capital
Telephone Co. v. Pattersonville Telephone Co., 56 N.Y.2d 11, 17-19, 451 N.Y.S.2d
ll, 13-15 (1982)).

12

The legal provision governing petitioners’ second, fourth and
fifth claims in the instant action is the SIP’s requirement that
“the City commits to assure that mitigating measures will be
implemented by the project sponsor or the City, so as to pro-
vide for attainment of the [NAAQS] by December 31, 1987 and
maintenance of it thereafter.” SIP § 3.6(A) (emphasis added)
(A-82). The mitigation requirement of the SIP is absolute: any
departures from the NAAQS must be eliminated without regard
to any competing considerations. Thus, to comply with this re-
quirement of the SIP, the Project’s mitigation measures must
be sufficient to meet the NAAQS’ 9 ppm standard for carbon
monoxide.

In contrast, the governing legal standard in the state pro-
ceedings did not require that the NAAQS actually be met. In-
deed, SEQRA is satisfied as long as “adverse environmental ef-
fects” are minimized “consistent with social, economic, and other
essential considerations, to the maximum extent practicable.”
N.Y. Envtl. Conserv. Law § 8-0109(1) (McKinney 1984) (A-75).
Accordingly, the state administrative agency, the UDC, defined
“adverse environmental effects” to be carbon monoxide concen-
trations in excess of the 9 ppm standard of the NAAQS, and
found that the SEQRA requirement had been met here although
the carbon monoxide concentrations at one of the Project’s loca-
tions would be 9.3 ppm even after the implementation of the
proposed mitigation measures. See N.Y. State Urban Develop-
ment Corp., Findings With Respect to 42nd Street Development
Project, New York, New York, Oct. 4, 1984 at 26-27 (A-108).*

This finding was upheld by the Appellate Division of the
Supreme Court of New York, which tracked the language of
SEQRA: “Our review of UDC’s analysis of the traffic and air

* Similarly, the UDC’s finding that, for the purposes of SEQRA, the depar-
ture of 0.3 ppm is “de minimis” has no legal significance in this action. The
SIP contemplates no “de minimis” exception; any mitigation measures that
lead to carbon monoxide concentrations of over 9 ppm are inadequate.
(A-108-109).

13

quality impacts assures us that UDC identified the adverse traffic
and air quality impacts, took a hard analytical look at them
and proposed mitigative measures which, it had a reasonable
basis to conclude, would in fact minimize those adverse effects.”
Jackson v. New York State Urban Development Corp., 110 A.D.
304, 310-11, 494 N.Y.S.2d 700, 704 (Ist Dep’t 1985) (emphasis
added).°

The issues would be no different even if, as the court below
suggested (A-25), the UDC and the state courts had found that
the mitigation measures would actually eliminate, rather than
merely minimize, the Project’s adverse environmental effects.
Under established principles, collateral estoppel can attach only
to issues “actually and necessarily determined.” Montana v.
United States, 440 U.S. at 153 (emphasis added). The only issue
that was “necessarily” determined in the state proceedings was
that the mitigation measures would minimize the departure from
the 9 ppm standard of the NAAQS. The more stringent finding
required by the federal Clean Air Act —that the 9 ppm stan-
dard actually be met — was in no way necessary to the decisions
of the UDC and the state courts. Thus, as discussed above, the
relevant legal question is whether findings of compliance with
SEQRA can have collateral estoppel effect in a citizen suit under
the Clean Air Act.

In equating the flexible standard under SEQRA with the SIP’s
requirement of strict compliance with the NAAQS, the Second
Circuit departed from the well-established collateral estoppel

* In its affirmance, the New York Court of Appeals merely quoted the Ap-

pellate Division’s conclusion. See Jackson v. New York State Urban Develop-
ment Corp., 67 N.Y.2d 400, 426, 503 N.Y.S.2d 298, 311 (1986).

” See Schwartz v. Public Adm’r of Bronx, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955,
960 (1969) (“[t]here must be an identity of issue which has necessarily been
decided in the prior action”); Kleinberger v. Town of Sharon, 116 A.D.2d 367,
369, 501 N.Y.S.2d 746, 747 (3d Dep’t 1986) (citing Silberstein v. Silberstein,
218 N.Y. 525, 528 (1916)) (“a judgment does not work an estoppel as to unessen-
tial facts, even though put in issue by the pleadings and directly decided”).

14

principles fashioned by the Court. As indicated below, this deci-
sion, if it remains uncorrected, wili have serious negative ef-
fects on the administration of the Clean Air Act.

B. The Second Circuit’s Preclusion of Clean Air Act En-
forcement Because of a State Court SEQRA Review
Thwarts the Important Federal Policy of Uniform Na-
tional Standards Embodied in the Act.

By holding that findings pursuant to the standard of SEQRA
would have collateral estoppel effect in a citizen suit under the
Clean Air Act, the Second Circuit thwarted the important
federal goal of uniform administration of the Act. (

Congress recognized in 1970 when it enacted the requirement
of uniform federal air quality standards (to be achieved through
the promulgation of NAAQS and state implementation plans
designed to achieve these NAAQS) that “the basic strategies in
the Nation’s war against air pollution must be developed in a
unified and consistent way by the Federal Government.” H.R.
Rep. No. 1146, 91st Cong., 2d Sess. (1970), reprinted in 1970 US.
Code Cong. & Admin. News 5356, 5371. It reemphasized this
goal at the time of the 1977 amendments to the Act:

Without national guidelines ... a State deciding to
protect its clean air resources will face a double threat.
The prospect is very real that such a State would lose
existing industrial plants to more permissive States.
But additionally the State will likely become the target
of “economic-environmental blackmail” from new in-
dustrial plants that will play one State off against
another with threats to locate in whichever State
adopts the most permissive pollution controls. In other
words, without national guidance on prevention of
significant deterioration, the very States demon-
strating a concern for preserving existing clean air
seriously risk having their economic base undermined.

15

H. Rep. No. 294, 95th Cong., Ist Sess. 134 (1977), reprinted in
1977 U.S. Code Cong. & Admin. News 1077, 1213. See also Du-
quesne Light Co. v. EPA, 698 F.2d 456, 471 (D.C. Cir. 1983).

The decision below creates several areas of nonuniformity in
the national administration of the Clean Air Act. First, like New
York, many states have environmental review requirements. See
supra note 1. If, in each of these states, the federal standard
under the Clean Air Act is determined by reference to the ap-
plicable state standard whenever there has been a prior adjudica-
tion in state court, the Clean Air Act will, effectively, prescribe
a multiplicity of different air quality levels. Second, because the
state environmental review provisions, like SEQRA, do not apply
to all projects, see N.Y. Envtl. Conserv. Law §§ 8-0109(2),
8-0111(5) (McKinney 1984 and 1988 Supp.), attainment of the
Clean Air Act’s standards will depend on what kind of project
causes the pollution. Third, because a litigant may decide to
forego its state remedies, see infra at 22-25, the required na-
tional air quality may also depend on whether a challenge is
brought initially in state rather than federal court. For these
reasons, the decision below according collateral estoppel effect
to a determination under SEQRA will severely hamper the
uniformity goals that Congress identified as central to the Clean
Air Act. See Gold, Clean Water, Federalism and the Res Judicata
Impact of State Judgments in Federal Environmental Litiga-
tion, 16 U.C. Davis L. Rev. 1, 18-20 (1982).

C. Additional Reasons Support the Grant of Certiorari to
Review the Collateral Estoppel Determinations of the
Court Below.

Two additional reasons support the grant of certiorari to
review the collateral estoppel determinations of the court below.
First, the Second Circuit’s decision is inconsistent with Kremer
v. Chemical Contruction Corp., 456 U.S. 461 (1982). In Kremer,
the Court gave collateral estoppel effect to a state agency ad-
ministrative adjudication upheld upon state court review because
the agency proceedings had provided a full and fair opportunity

16

to litigate the precluded issues. Id. at 480-485. But, here, unlike
Kremer, there was no full and fair opportunity to litigate the
issues before either the administrative agency or the state courts.
The UDC was not acting in a judicial capacity, cf. University
of Tennessee v. Elliot, 478 U.S. 788, 797 (1986) (principles of issue
preclusion applicable “to the factfinding of administrative bodies
acting in a judicial capacity”); United States v. Utah Construc-
tion & Mining Co., 384 U.S. 394, 422 (1986), when it held its
legislative-type hearing and published its determinations and
findings. Neither petitioners nor anybody else had an oppor-
tunity to present witnesses or evidence in a trial-type setting or
to rebut the myriad of factual assertions underlying the UDC’s
environmental analysis. Nor was there any adjudicatory fact-
finding by the reviewing courts. Rather, the state courts were
limited to a review of the agency’s record and could set aside
the agency’s determination “only if arbitrary, capricious, or un-
supported by substantial evidence.” Jackson, 67 N.Y.2d at 417,
503 N.Y.S.2d at 305. Thus, the factor that was central to the
collateral estoppel determination in Kremer — that opposing par-
ties have an adequate opportunity to litigate disputed issues of
fact — was simply not present here. Kremer, 456 U.S. at 480-85
(complaintant had an opportunity “to rebut evidence submit-
ted or obtained from the respondent”). See also Montana v.
United States, 440 U.S. at 153-54; Allen v. McCurry, 449 U.S.
90, 95 (1980).

Second, the court of appeals’ application of collateral estop-
pel to bar petitioners’ second, fourth, and fifth claims for relief
extended to questions and facts never considered in the prior
proceedings. For example, in their second claim, petitioners
challenged not only the adequacy of the mitigation measures
that were approved by the UDC, but also the subsequent ef-
forts by the City of New York to assure the implementation of
such mitigation. (A-92-93). The state courts did not determine
(and because the issues arose after the administrative determina-
tion, could not have determined) whether the City and State

17

environmental agencies failed to carry out their commitment
to mitigation."

In summary, certiorari should be granted because the court
below departed from well-established collateral estoppel prin-
ciples in a manner that will seriously undermine the important
uniformity requirement of the Clean Air Act.

II. THE COURT SHOULD RESOLVE A CONFLICT
AMONG THE CIRCUITS ON THE IMPORTANT
FEDERAL QUESTION OF WHETHER ECONOMIC
AND SOCIAL CONSIDERATIONS ARE COGNI-
ZABLE IN ENFORCEMENT PROCEEDINGS
UNDER THE CLEAN AIR ACT.

Certiorari should also be granted because the decision below
is in conflict with decisions of other circuits on whether economic
and social considerations are cognizable in enforcement pro-
ceedings under the Clean Air Act. In Union Electric Co. v. EPA,
427 U.S. 246 (1976), the Court unanimously held that “claims
of economic and technological infeasibility [are] to be wholly
foreign to the Administrator’s consideration of a state implemen-
tation plan.” Id. at 256. It stated that the Clean Air Act’s

deadline for achieving primary air quality standards
is central to the Amendments’ regulatory scheme and,
as both the language and the legislative history of the
requirement make clear, it leaves no room for claims
of technological or economic infeasibility.

" Petitioners’ fourth and fifth claims also raise issues distinct from the ade-
quacy of the Project’s mitigation measures. The fourth claim alleges that
respondents breached their duties under Section 3.6 of the SIP by “(1) not re-
quiring the production of materials in the EIS that were necessary in order
to give special attention to the midtown area in the annual report; (2) not
giving special attention to significant changes in the midtown area (i.e., the
interaction between the project, the Javits Center, and the changing traffic
flow patterns generated by the center); and (3) failing to describe these signifi-
cant changes ‘realistically’ in the annual report.” (A-12, 94-96). Similarly, the

(Footnote continued)

18

Id. at 258. See generally Train v. Natural Resources Defense Coun-
cil, Inc., 421 U.S. 60, 64-65 (1975). The Court reviewed the
legislative history of the Act and concluded that Congress had man-
dated a policy of “technology-forcing”:

“In the Committee discussions, considerable concern
was expressed regarding the use of the concept of
technical feasibility as the basis of ambient air quality
standards. The Committee determined that 1) the health
of people is more important than the question of
whether the early achievement of ambient air quality
standards protective of health is technically feasible; and
2) the growth of. pollution load in many areas, even with
application of available technology, would still be
deleterious to public health.

“Therefore, the Committee determined that existing

sources of pollutants either should meet the standard
of the law or be closed down. . . .”

Union Electric, 427 U.S. at 259-60 (quoting S. Rep. No. 1196, ist
Cong., 2d Sess. 2-3 (1970)); see also id. at 269.

While the Court unambiguously held that economic and
technological infeasibility may not be considered by the Ad-
ministrator in reviewing a SIP, the question of whether a violator
may, in certain circumstances, raise a defense of economic or
technological infeasibility in a civil or criminal enforcement pro-
ceeding was explicitly left open.” Jd. at 268 n.18. Even though

fifth claim alleges respondents’ failure to fulfill the SIP requirements that special
attention be given annually to any mitigating measures that might be necessary
in response to significant changes in the West Midtown area. (A-96-97). A
preclusive finding that the Project’s mitigation measures were adequate to mitigate
the Project’s adverse effects cannot be issue determinative of the broader and
continuing concerns raised in these claims for relief.

2 The Court did review certain circumstances in which the Act permitted
technological feasibility to be considered. 427 U.S. at 266-68. None of these situa-
tions is applicable to the instant action.

19

Union Electric appears to “totally undermine” the rationale for
allowing considerations of technological or economic infeasibility
as a defense to enforcement of a SIP, Friends of the Earth v.
Potomac Electric Power Co., 419 F. Supp. 528, 535 (D.D.C.
1976), there is a split in the circuits as to whether, and to what
extent, infeasibility may be considered in an enforcement ac-
tion. Indeed, the courts of appeals have fashioned flatly incon-
sistent rules to govern this issue.

In collaterally estopping petitioners, the Second Circuit ap-
plied the SEQRA standard to an enforcement action under the
Clean Air Act. As already indicated, agency actions are lawful
under SEQRA if they merely minimize or avoid adverse en-
vironmental effects to the maximum extent practicable consistent
with social, economic and other essential considerations. N.Y.
Envtl. Conserv. Law § 8-0109(1) (McKinney 1984). Thus, in ap-
plying the SEQRA standard to petitioners’ Clean Air Act claims,
the Second Circuit determined that, in enforcement pro-
ceedings," the attainment of the NAAQS can be compromised
by “social, economic, and other essential considerations.”

Like the Second Circuit, the Seventh Circuit, in Bethlehem
Steel Corp. v. EPA, 638 F.2d 994 (7th Cir. 1980), refused to ex-
tend Union Electric’s absolute requirement of compliance with
the NAAQS to enforcement actions. The Seventh Circuit held
that:

[B]ecause these procedures may result in the state’s re-
quiring technological innovations that are infeasible
or ‘border on the impossible, . . . the source may raise

“ It is of no moment that this enforcement action was brought by private
citizens rather than by the EPA. Private enforcement of the Act is intended
to complement EPA’s regulatory role and DEC’s role in implementing the
measures incorporated in the EPA-approved SIP. Friends of the Earth v. Carey,
535 F.2d 165, 172 (2d Cir. 1976). Once the notice provisions of Section 304(b)
of the Act, 42 U.S.C. § 7604(b) (A-71), are met, the private citizens stand in
the EPA’s shoes to assure enforcement of the Act.

20

its infeasibility defense in the course of enforcement
proceedings. This is true whether the proceedings are
brought in the state courts by the state, or in a federal
enforcement action under § 113.

Id. at 1005 (citations omitted).

In sharp contrast to the decisions of the Second and Seventh
Circuits, the Third and Sixth Circuits extended Union Electric’s
rule to enforcement actions.“ In United States v. Wheeling-
Pittsburgh Steel Corp., 318 F.2d 1077 (3d Cir. 1987), EPA sought
to enforce an amended consent decree which required Wheel-
ing to install pollution control equipment at a West Virginia
plant in order to achieve compliance with the West Virginia SIP.
Id. at 1079, 1081-82. To justify its failure to comply with the
decree, Wheeling argued that the compliance was economical-
ly infeasible and made plant closure a distinct possibility because
1985 losses exceeded $300,000,000 and because it had experi-
enced a 98-day labor strike. Jd. at 1086-87. The Third Circuit
explicitly relied on Union Electric to hold that “economic in-
feasibility is not a proper basis for staying compliance with the
Clean Air Act.” Id. at 1087.

Likewise, the Sixth Circuit, in United States v. Ford Motor
Co., 814 F.2d 1099 (6th Cir.), cert. denied, 108 S. Ct. 83 (1987),
refused to permit consideration of technological and economic
infeasibility in an enforcement action. In that case, the United
States sought to enforce the Michigan SIP, which, according to
Ford, had been vacated by a consent order entered in a state
court action brought by Ford to enjoin enforcement of the SIP
by the Michigan environmental agencies. Jd. at 1101. Ford
argued that refusing to give effect to the state court judgment
would violate its Fifth Amendment right to due process

“ A number of federal district courts have also followed this course. See, e.g.,
United States v. SCM Corp., 667 F. Supp. 1110, 1126-27 (D. Md. 1987); Friends
of the Earth v. Potomac Electric Power Co., 419 F. Supp. 528, 535 (D.D.C.
1976) (citizen suit under 42 U.S.C. § 7604 to enforce a SIP provision).

21

because the state court was the only forum available for
challenging the technological and economic feasibility of the
Michigan SIP. Id. at 1103. Rejecting Ford’s argument, the Sixth
Circuit held that “the Clean Air Act envisions situations where
standards currently economically or technologically infeasible
will nonetheless be enforced.” Id. (citing Union Electric, 427
U.S. at 258-59) 5

Thus, the Second Circuit’s preclusion of federal Clean Air Act
enforcement on the basis of a state determination that balanced
the goal of attainment of the NAAQS against social and
economic concerns, like the Seventh Circuit’s decision in
Bethlehem Steel, is in direct conflict with decisions by the Third
and Sixth Circuits extending Union Electric to enforcement
actions.

The Court has recognized the “primary congressional pur-
pose of prompt attainment of the national ambient air quality
standards.” Union Electric, 427 U.S. at 266. In addition, Con-
gress has stressed the importance of uniformity in the enforce-
ment of the Clean Air Act. See supra at 14-15. The Court should
grant certiorari to resolve the conflict among the circuits and
determine whether attainment of the NAAQS can be com-
promised, in enforcement proceedings, by competing
considerations.

‘* The Sixth Circuit noted that “technical infeasibility coupled with good faith
efforts can be considered by the district court as a factor mitigating against
the impositica of monetary penalties in the enforcement action,” Ford Motor
Co., 814 F.2d at 1104, but not as a defense to the enforcement action.

22

IfI. THE DECISION BELOW IS INCONSISTENT WITH
ESTABLISHED POLICIES OF THIS COURT
BECAUSE LITIGANTS SEEKING TO VINDICATE
THEIR RIGHTS TO A SAFE AND CLEAN EN-
VIRONMENT WOULD BE INDUCED TO BYPASS
STATE COURT REMEDIES AND CHANNEL EN-
VIRONMENTAL LITIGATION INTO THE
FEDERAL COURTS.

The decision of the court of appeals below that litigants who
obtain state court judicial review under SEQRA are collateral-
ly estopped from pursuing their federal causes of action under
the Clean Air Act will, unnecessarily and without due respect
for federal/state comity, channel environmental litigation into
the federal courts. The decision therefore undermines the Court’s
longstanding policy that federal remedies should supplement,
rather than supplant, available state remedies. See, e.g., New
York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 65 (1980); Alex- ?
ander v. Gardner-Denver Co., 415 U.S. 36, 48-50 (1974).

A citizen suit under the Clean Air Act and a state SEQRA
action cannot be brought together, either in federal or state
court. Under the guidelines in Gulf Offshore Co. v. Mobil Oil
Corp., 453 U.S. 473, 478 (1981), federal courts have exclusive
jurisdiction over citizen suits under the Act because there is both
an “unmistakable implication from legislative history,” and a
“clear incompatibility between state-court jurisdiction and
federal interests” in enforcing the Clean Air Act.* Id. at 478.

’* The Clean Air Act and its legislative history “unmistakably impl[y]” exclusive
federal jurisdiction. The citizen suit provision provides that suit “may be
brought only in the judicial district” where the source of pollution is located.
42 U.S.C. § 7604(c)(1) (emphasis added) (A-72). It also provides that the “court
may, if a temporary restraining order or preliminary injunction is sought, re-
quire the filing of a bond or equivalent security in accordance with the Federal
Rules of Civil Procedure.” 42 U.S.C. § 7604(d) (A-72). Congress could not have
intended to lay down federal rules for venue and security for the state courts,
possibly in conflict with state rules.

(Footnote continued)

ee

23

Similarly, the federal courts cannot hear SEQRA claims because
the defendants in such claims are state agencies, and the Court
has held that federal district courts are barred by the Eleventh
Amendment from exercising pendent jurisdiction over claims
that state officials violated state law in carrying out their of-
ficial responsibilities. Pennhurst State School and Hospital v.
Halderman, 465 U.S. 89, 121 (1984).

Thus, the collateral estoppel decision of the court below, if
undisturbed, would leave environmental litigants a choice of
pursuing their state environmental review claims in state court
and giving up their Clean Air Act causes of action, or forego-
ing the procedural safeguards of their state statutes in order to
bring an action under the Clean Air Act.” Because of the dif-
ferences between the federal and state schemes, litigants are like-
ly to proceed in federal court. First, the inquiry under SEQRA
is limited to whether adverse environmental effects — defined
in petitioners’ action as departures from the standards set by

The citizen suit provision also provides for suit against the Administrator for
failure to perform any non-discretionary act or duty, 42 U.S.C. § 7604(a)(2)
(A-71), and against federal agencies and the United States for violation of an
emission standard or limitation, 42 U.S.C. § 7604(a)(1) (A-71). It is highly
unlikely that Congress intended either to give state courts jurisdiction over
a federal officer or to split the citizen suits provision into two parts, one of
which would permit state court jurisdiction over citizen suits against private
polluters, while the other part allows only federal jurisdiction over federal
officers.

Moreover, the legislative history of the citizen suit provisions refers only to
federal jurisdiction: “Prior to commencing any action in the district courts,
the plaintiff must have provided the violator, the Administrator and the State
with sixty days notice.” Conf. Rep. No. 1783, 91st Cong., 2d Sess., reprinted
in 1970 U.S. Code Cong. & Admin. News 5374, 5388.

" The short statute of limitations of SEQRA in New York (and of similar statutes
in other states) does not make it possible for a litigant to pursue state remedies
in state court following an adjudication of the Clean Air Act claims in federal
court. See infra at note 18.

24

the NAAQS — are minimized “consistent with social, economic
and other essential considerations.” N.Y. Envtl Conserv. Law
§ 8-0109(1) (McKinney 1984) (A-75). In contrast, by bringing
a citizen suit under the Clean Air Act, a litigant can enforce
the mandates of the SIP, which is designed to achieve actual
compliance with the NAAQS. Second, it would be a rare litigant
that would forego the benefits of a full evidentiary hearing in
federal court under the Clean Air Act with the procedural pro-
tections of the Federal Rules of Civil Procedure for a deferen-
tial review of the administrative record in state court under a
state environmental quality review act. See supra at 16.

As a consequence, environmental plaintiffs will be encouraged
to forego an appeal to the state courts from state administrative
determinations, and to proceed instead directly to federal court.
As Justice Blackmun has stated: “It is a perverse sort of comity
that eliminates the reviewing function of state courts in the name
of giving their decisions due respect.” Kremer v. Chemical Con-
struction Corp., 456 U.S. 461, 504-05 (1982) (Blackmun, J., joined
by Brennan and Marshall, JJ., dissenting).

Finally, the problems caused by the decision below would not
be cured even if it were possible to bring in a single forum both
a citizen suit under the Clean Air Act and an action under a
state environmental review scheme like SEQRA. The Clean Air
Act provides that no action may be commenced under the citizen
suits provisions “prior to 60 days after the plaintiff has given
notice of the violation to” the EPA, the State and the alleged
violators. 42 U.S.C. §7604(b)(1)(A)(A-71). However, at least eigh-
teen of the jurisdictions that have SEQRA-like environmental
quality review acts or executive orders require that challenges
be brought in less than sixty days.* Even in New York, where

" See, e.g., CONN. GEN. STAT. ANN § 4-193 (West 1987) (45 days); DEL.
CODE ANN. tit. 7, § 7008 (1983 & Supp. 1986) (20 days); GA. CODE ANN.
§ 31-5-3(a)(3) (1985 & Supp. 1988) (30 days); HAW. REV. STAT. § 91-14(b)

(Footnote continued)

ty anal

25

the statute of limitations to bring a SEQRA action is four
months, N.Y. Civ. Prac. L. & R. 217 (McKinney 1987), the ac-
tion would have to be brought very soon after the expiration
of the sixty-day notice period. But a central purpose of the Act’s
notice provision is to allow a perceived violation to be remedied
without the need for resort to legal process. Natural Resources
Defense Council v. Train, 510 F.2d 692, 703 (D.C. Cir. 1975);
Friends of the Earth v. Potomac Elec. Power Co., 546 F. Supp.
1357, 1361 (D.D.C. 1982). This conflict-resolving purpose would
clearly be vitiated by the requirement that an action be brought
so promptly after the notice of violation.

(1985 & Supp. 1987) (30 days); IND. CODE ANN. § 4-21.5-5-5 (Burns 1987
& Supp. 1988) (30 days); MD. RULES, Vol. 2, B4a. (1988) (30 days);
Massachusetts Environmental Policy Act of 1973, MASS. GEN. LAWS ANN.
ch. 30, § 62H (West 1979 & Supp. 1988) (30 days); MICH. COMP. LAWS
ANN. § 24.304 (West 1981 & Supp. 1988) (60 days); Minnesota Environmen-
tal Policy Act of 1973, MINN. STAT. ANN. § 116D.04 (West 1987 & Supp.
1989) (30 days); Coastal Wetlands Protection Law, MISS. CODE ANN. §
49-27-39(a) (Supp. 1988) (30 days); MONT. CODE ANN. § 2-4-702(2)(a) (1987)
(30 days); NEV. REV. STAT. § 233B.130.2 (1986 & Supp. 1987) (30 days); N.C.
GEN. STAT. § 150B-45 (1987 & Supp. 1988) (30 days); R.I. GEN. LAWS §
42-35-15(b) (1985 & Supp. 1988) (30 days); $.D. CODIFIED LAWS ANN.
§ 1-26-31 (1986 & Supp. 1988) (30 days); Rules of Supreme Court, VA. CODE,
Rule 2A:2 (1988) (30 days); State Environmental Policy Act of 1971, WASH.
REV. CODE ANN. § 43.21C.080 (1983 & Supp. 1989) (30 days); WIS. STAT.
ANN. § 227.52 (West 1986 & Supp. 1988) (30 days).

26

CONCLUSION

For the foregoing reasons, the Court should issue a writ of
certiorari to review the judgment of the court of appeals.

Respectfully submitted,

JOHN S. KINZEY

LeBOEUF, LAMB, LEIBY &
MacRAE

520 Madison Avenue

Of Counsel: New York, New York 10022
JACOB FRIEDLANDER (919) 715-8000

JONATHAN E. POLONSKY " Counsel of Record
STEPHEN OREL

-and-

NORMAN DORSEN
RICHARD L. REVESZ
40 Washington Square South
New York, New York 10012
. (212) 998-6100
Counsel for Petitioners

Dated: January 3, 1989

APPENDIX

10.

INDEX TO APPENDIX

. Opinion of the Court of Appeals in Wilder, et

al. v. Thomas, et al., 854 F.2d 605 (2d Cir.
A RRR eas de rr

Order of the Court of Appeals Denying
Petition for Rehearing in Wilder, et al. v.
Thomas, et al., No. 87-7516 (2d Cir. Sept. 7,
eek esd cece Ci ae RA CROAT RAD

Opinion of the District Court in Wilder, et all.
v. Thomas, et al., 659 F. Supp. 1500
ET eee svat ees kdse cuss ees

. Judgment of the District Court in Wilder, et

al. v. Thomas, et al., No. 85 Civ. 8356 TPG
ees Oe MD hecho a kacendnedens

Section 110 of the Clean Air Act, as amended,
ee I re en ease wen oon

Section 304 of the Clean Air Act, as amended,
CR ee ee

New York State Environmental Quality
Review Act, N.Y. Envtl. Conserv. Law §
8-0109 (McKinney 1984 and 1988 Supp.).....

New York State Air Quality Implementation
Plan For Control Of Carbon Monoxide And
Hydrocarbons In New York City Metropolitan
pe re

Amended Complaint in Wilder, et al. v.
Thomas, et al., 85 Civ. 8356 TPG (S.D.N.Y.
I

New York State Urban Development
Corporation, Findings with Respect to 42nd
Street Development Project, New York, New
York, October 4, 1984 (excerpts) ............

Page

A-1

A-31

A-32

A-52

A-53

A-71

A-75

A-80

A-84

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A-1

Stephen F. WILDER, Brendan Gill, Imre J. Rosenthal, Stephen
Rosenthal, Robert Neuwirth, Lori Jean Saigh, and the Whitby
Tenants’ Association, Plaintiffs-Appellants,

Vv.

Lee M. THOMAS, as Administrator of the United States En-
vironmental Protection Agency, United States Environmental Pro-
tection Agency; Region II of the United States Environmental Pro-
tection Agency; New York State Urban Development Corporation;
Vincent Tese, as Chairman of the New York State Urban Develop-
ment Corporation; Times Square Redevelopment Corporation; Carl
Weisbrod, as President of the Times Square Redevelopment Cor-
poration; New York State Department of Environmental Conser-
vation; Henry G. Williams, as Commissioner of the New York State
Department of Environmental Conservation; Department of En-
vironmental 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.

No. 288, Docket 87-7516.

United States Court of Appeals,
Second Circuit.

Argued Dec. 7, 1987.
Decided Aug. 10, 1988.

Before FEINBERG, Chief Judge,
OAKES, and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge:

This appeal arises from the most recent in a long series of ac-
tions that have been brought in state and federal courts by these
plaintiffs and others similarly situated, who seek to forestall con-
struction of the proposed 42nd Street Development Project (“the

A-2

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
(Ist Dep’t 1985). The goal of the project is to eliminate “physical,
social and economic blight” in the Times Square area, Rosen-
thal ¢> Rosenthal, Inc. v. N.Y. State Urban Dev. Corp., 771 F.2d
44, 45 (2d Cir.1985) (citing Natural Resources Defense Coun-
cil, 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 sta-
tion. 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 pro-
ject. 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 demoli-
tion. 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 protec-
tion grounds, G ¢& A Books v. Stern, 604 F.Supp. 898 (S.D.N.Y.),
affd, 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 unconstitu-

tional exercise of the eminent domain power, Rosenthal ¢> Rosen- ,

thal, Inc. v. N.Y. State Urban Dev. Corp., 605 F.Supp. 612

eo

ee ee

A-3

(S.D.N.Y.), affd, 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, affd, 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 plain-
tiffs 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 (Ist 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 defen-
dants 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. § 7401 et seq.,
on the ground that the proposed amended complaint failed to
state a claim. Plaintiffs alleged that defendants violated re-
quirements of the CAA relating to transportation control
measures set out in New York State’s implementation plan, which
was adopted pursuant to CAA § 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.

A-4

I. BACKGROUND

Plaintiffs rely in particular on § 7604(a) which provides, in
pertinent part, that “any person may commence a civil action
on his own behalf * * * against any person * * * [or] govern-
mental instrumentality or agency * * * who is alleged to be in
violation of * * * an emission standard or limitation under this
chapter”. 42 U.S.C. § 7604(a)(1)(A). “Emission standard or
limitation” is defined as including “any condition or require-
ment under an applicable implementation plan relating to
transportation control measures”, § 7604(f)(3). A citizen may
also commence a civil action against the administrator of the
Environmental Protection Agency (“EPA”) where the ad-
ministrator fails to perform any non-discretionary duty under
the CAA. § 7604(a)(2).

A. Statutory Schemes.

Because implementation of the act involves a complex inter-
play 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 con-
cerned, complied with these requirements.

SEQRA, enacted in 1975 and codified as N.Y. Envtl. Conserv.
Law § 8-010] et seq. (McKinney 1984), was designed, in part,
to fill a gap left by the National Environmental Policy Act, 42
U.S.C. §§ 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 SE-
QRA 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 § 8-0109.2 See 503

Oe te eee Bat SSE Nae Snr D ee abrever on peer

A-5

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 § 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.
§ 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, § 106, 91 Stat. 691 (1977), required the EPA to promulgate
national ambient air quality standards (“NAAQS”) for various
air pollutants, including carbon monoxide. See § 7409 (National
Primary and Secondary Air Quality Standards); 40 C.F.R. § 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 year.” 40 C.F.R. § 50.8(a)(1) (1987).

Section 7410(a)(1) requires that each state adopt an implemen-
tation plan (“SIP”) that provides for the “implementation,
maintenance, and enforcement of national primary and secon-
dary ambient air quality standards”. See Concerned Citizens
of Bridesburg, 836 F.2d at 780-81; see generally 683 F.2d at 651
(discussing SIP revision process for nonattainment areas). The
administrator is required to approve or disapprove a proposed
SIP within four months after it is submitted, based on criteria
set out in § 7410(a)(2). Thus, the EPA “determines the ends —
the standards of air quality — while the states are given the in-
itiative and broad responsibility to achieve those ends.” Con-
cerned Citizens of Bridesburg, 836 F.2d at 779 (citation omitted).

The 1977 amendments to the CAA extended the deadline for
attainment of carbon monoxide and ozone standards in certain
“nonattainment states”, including New York. See 42 U.S.C.

A-6

§ 7502(a)(2); 683 F.2d at 651. Pursuant to these amendments,
“extension states” were required to submit SIP revisions contain-
ing measures stringent enough to assure attainment of the
NAAQS by December 31, 1987. See § 7502(c); 683 F.2d at 651.
The December 31, 1987, federal statutory deadline was in ef-
fect when the complaint leading to this appeal was filed.

In a continuing appropriations bill, Joint Resolution 395, Pub.
L. No. 100-202 (Jan. 6, 1987), congress approved legislation that
prohibits the EPA from imposing, prior to August 31, 1988, sanc-
tions on areas that fail to attain the NAAQS for carbon monox-
ide by December 31, 1987. See generally 42 U.S.C. § 7413
(Federal enforcement procedures); Council of Commuter Orgs.
v. Gorsuch, 683 F.2d at 651 (discussing treatment of “nonat-
tainment areas” under Clean Air Act amendments of 1977).
Although this amendment, in effect, extends the deadline for
attainment of the NAAQS in New York City to August 31, 1988,
the SIP that was in effect when plaintiffs brought this suit has
not been modified and still contains a commitment that “all [car-
bon monoxide] hot spots will be eliminated by the end of 1987.”
New York State Air Quality Implementation Plan for Control
of Carbon Monoxide and Hydrocarbons in New York City
Metropolitan Area § 3.5.3, at 3-21 (Future Action) (revised
January 1984). A “hot spot” is “any location which has been
shown to have a potential to violate [the NAAQS] for carbon
monoxide as of December, 1982.” Id. at § 3.3.

The provisions of the SIP are crucial to this appeal because
plaintiffs bringing a citizen suit “must allege a violation of a
specific strategy or commitment in the SIP and describe, with
some particularity, the respects in which compliance with the
provision is deficient.” Council of Commuter Orgs. v. Metro.
Transp. Authority, 683 F.2d 663, 670 (2d Cir.1982). See Action
for Rational Transit v. Westside Highway, 699 F.2d 614, 616 (2d
Cir.1983).

The 1984 SIP was submitted pursuant to that portion of § 7410
that allows states to include provisions for review of “indirect
sources”. An “indirect source” includes structures that “may

A-7

attract mobile sources of pollution”, 42 U.S.C. § 7410(a)(5)(C),
presumably cars, buses, etc. Under an “indirect source review
program”, the state may provide for a review of indirect sources
of ‘air pollution and for the development of measures that will
“assure, or assist in assuring,” that a new or modified indirect
source will not lead to nonattainment of the NAAQS or pre-
vent the maintenance of the NAAQS. 42 U.S.C. § 7410(a)(5)(D).

In exercising its discretion under the CAA to include an in-
direct source review program in its SIP, the state chose to use
the SEQRA EIS process at the means by which the environmen-
tal impact of an indirect source would be evaluated. The 1984
SIP, which was approved by the EPA in 1985, see 40 C.F.R.
§ 52.1673(a), provides that “[t]he primary mechanism for com-
prehensive evaluation of major projects which may have a signifi-
cant impact on air quality is the environmental impact state-
ment (EIS). EIS’s are required by either the National En-
vironmental Policy Act (NEPA), the State Environmental Quality
Review Act (SEQRA), or the New York City Environmental
Quality Review (CEQR).” 1984 SIP at § 3.6 (Changing Traffic
Patterns). SEQRA, in turn, requires that, in preparing an EIS,
agencies “choose alternatives which, consistent with social,
economic and other essential considerations, to the maximum
extent practicable, minimize or avoid adverse environmental ef-
fects, including effects revealed in the environmental impact
statement process.” N.Y. Envtl. Conserv. Law § 8-0109.1 (McKin-
ney 1984). Thus, project approval was subject to the indirect
source review program that New York voluntarily included in
the 1984 SIP, which it adopted pursuant to CAA requirements.
The SEQRA EIS process was the mechanism that the UDC used
to evaluate the potential impact of the project on air quality.

B. Project Approval.

In this case, UDC, as the lead agency for the project, see N.Y.
Envtl. Conserv. Law § 8-0111.6; 6 N.Y. Comp. Code Rules &
Regs. tit. 6, § 617.6, prepared a draft EIS, held public hear-
ings, received and reviewed written and oral public comments,
revised the EIS, and published a final EIS. See 6 N.Y. Comp.

A-8

Code Rules & Regs. tit. 6, § 617.8 (Environmental impact state-
ment procedures); 503 N.Y.S.2d at 304, 494 N.E. 2d at 435. After
considering “social, economic and other factors”, as well as rely-
ing on the final EIS, UDC approved the project on October 4,
1984, and set forth its findings and conclusions pursuant to
SEQRA and part 617 of the New York Code of Rules and Regula-
tions. See N.Y. State Urban Dev. Corp., Findings With Respect
to 42nd Street Development Project, New York, New York, Oct.
4, 1984, at 1, 43-44 [hereinafter cited as UDC Report]. The por-
tions of the UDC report that are most important for our pur-
poses concern (1) existing air quality and the projected impact
of the project on air quality and (2) mitigation of traffic and
air quality impacts.

Under “Existing Project Area Conditions”, that is, the condi-
tions that prevailed in 1984, long before any construction was
to begin, UDC found that “under adverse meteorological and
traffic conditions, the [carbon monoxide] standard for the peak
eight-hour period of the day (average of 9 parts per million
(ppm) per hour) is exceeded at ten of the eleven project area
receptor locations”. UDC Report at 15-16.

Under “Project Impacts”, that is, the overall effect after the
project is completed, UDC concluded that “without traffic
mitigations, violations of the eight-hour carbon monoxide stan-
dard of 9 ppm would occur at several locations in 1991 under
peak traffic and meteorological conditions”, but that with
mitigation, carbon monoxide concentrations within the project
area would, depending on the exact location, either (1) be below
the 9 ppm standard; (2) exceed the 9 ppm standard by only de
minimis amuunts (i.e. 9.3 ppm); or (3) be lower than would be
the case without the project. UDC Report at 26-27.

UDC made similar findings regarding impacts during pro-
ject construction: without mitigation the 9 ppm standard would
be exceeded in a number of project area locations during con-
struction, but with mitigation measures, two locations at most
would exceed the 9 ppm standard during temporary traffic
diversion. At one of these locations, the standard would be ex-
ceeded by only de minimis amounts. UDC Report at 29-30.

A-9

Mitigation measures designed to handle the projected 1991
traffic volume within the project area were incorporated into
the project plan and approved by UDC. They included (1) a traf-
fic lay-by lane to provide standing and drop-off space for buses
and taxis that now block traffic, (2) relocation of a taxi stand,
(3) revised and more effectively enforced “no standing” regula-
tions, (4) revised signal timing, and (5) additional traffic en-
forcement agents. UDC Report at 23.

At the conclusion of its report, under “Findings Pursuant to
the State Environmental Quality Review Act”, UDC concluded:

Based on the foregoing and having fully considered
the FEIS and considered, determined and found the
matters set forth above, UDC hereby (a) finds that
all requirements of SEQRA and Part 617 have been
met in preparation and consideration of the FEIS and
(b) makes the following additional findings:

(1) consistent with the social, economic and other
essential considerations, from among the reasonable
alternatives thereto, the action to be approved is one
which minimizes or avoids adverse environmental ef-
fects to the maximum extent practicable, including
the effects disclosed in the Final Environmental Im-
pact Statement; and

(2) consistent with social, economic and other essen-
tial considerations, to the maximum extent prac-
ticable, adverse environmental effects revealed in the
environmental impact statement process will be
minimized or avoided by incorporating as conditions
to the decision those mitigating measures which were
identified as practicable.

UDC Report at 43-44. These findings, which UDC made pur-
suant to SEQRA’s requirements, were based on the findings
regarding air quality that it had made by using CAA’s 9 ppm
standard to measure the impact of the project on air quality
and to evaluate the effectiveness of proposed mitigation
measures.

A-10

On November 9, 1984, after holding public hearings, the New
York City Board of Estimate expressly adopted UDC’s findings
and approved the project.

C. The CAA Suit: Plaintiffs’ Proposed Amended
Complaint.

One day before plaintiffs commenced this action, the New
York Appellate Division affirmed the dismissal of plaintiffs’
SEQRA challenges to UDC’s analysis of traffic and air quality
impacts and their claims of procedural defects in the EIS pro-
cess. Jackson, 110 A.D.2d 304, 494 N.Y.S.2d 700. The Court of
Appeals affirmed, 67 N.Y.2d 427, 503 N.Y.S.2d 298, 494 N.E.2d
429. In this case, plaintiffs’ original complaint contained four
claims for relief premised essentially on the argument that the
project would prevent attainment of the NAAQs. After he
dismissed the original complaint for failure to state a claim,
Judge Griesa granted leave to submit a proposed amended com-
plaint but cautioned plaintiffs that they must allege specific
violations of an SIP or some other statutory provision in order
to state a claim cognizable under the citizen suits provisions.
He also noted that plaintiffs must show why they are entitled
to the injunctive relief they are seeking and warned that even
if a provision of the SIP is violated, “it does not follow that the
project gets enjoined”. Transcript of June 26, 1986 argument at
10, Wilder v. Thomas, 659 F.Supp. 1500 (S.D.N.Y.1987) (Griesa,
J.).

The plaintiffs’ proposed amended complaint set forth six
claims for relief, all based on defendants’ alleged failures to com-
ply with 1984 SIP.

l. The first claim, “Failure to eliminate carbon monoxide
‘hot spots’ caused by the Project by 1987”, alleges that it is a “con-
dition or requirement” of the 1984 SIP, § 3.5.3, that all carbon
monoxide hot spots be eliminated by December 31, 1987, and
that construction of the project will “assure the continued ex-
istence” of hot spots in the project area after the deadline. The
various defendants are alleged to be liable for this anticipated

Ae Nod Se Ne Oh RS WR aT ant, Nil nd AO

A-11

SIP violation because they, or their appointees, have allowed
the project to go forward despite the predicted continued ex-
istence of hot spots.

2. The second claim, “Failure to require Project air pollu-
tion mitigation measures to be effective”, is based on § 3.6(A)
of the 1984 SIP, which provides:

To further insure that the carbon monoxide stan-
dard is attained in New York City, if an EIS for a pro-
ject proposal identifies a violation or exacerbation of
the carbon monoxide standard, then the City com-
mits to assure that mitigating measures will be im-
plemented by the project sponsor or City, so as to pro-
vide for attainment of the standard by December 31,
1987 and maintenance of it thereafter.

1984 SIP at 3-24. The complaint alleges that defendants failed to
commit to, or to seek the City’s commitment to, mitigation measures
for the project that would be effective to “prevent violation of, and
assure maintenance of” the NAAQS after December 31, 1987.

3. The third claim, “Failure to compute carbon monoxide
emission reductions in prior years for Midtown Manhattan”,
refers to the 1984 SIP § 1.6, which requires that DEC

will compute, for each pollutant, emission reductions
achieved during the calendar year through implemen-
tation of control measures on permitted sources, area
source, and mobile sources. Actual reductions thus
calculated will be compared with those predicted in the
SIP. Shortfalls, if any, will be discussed as to their effect
on RFP [reasonable future progress] in future years.

A summary of emission reductions resulting from con-
trol measures and other influencing factors will be
prepared and a graphical comparison made between the
growth and control line and the RFP line included in
the SIP.

A-12

Id. at 1-10. The complaint alleges that DEC delegated this
reporting duty to DEP but that neither DEC nor DEP had com-

puted or reported carbon monoxide emissions for midtown
Manhattan for 1985.

4. The fourth claim, “Failure to address Project interaction
with other changes in West Midtown”, refers to § 3.6 of the 1984
SIP, which requires that the annual report “give special atten-
tion to significant changes in the West Midtown area and to any
mitigating measures that might be necessary in that area.” Id.
at 3-25. Section 3.6 also requires that the EIS for new projects
be used to provide the underlying information for the annual
report. Id. at 3-23, 3-24. The complaint alleges that the defen-
dants breached these duties under the SIP by (1) not requiring
the production of materials in the EIS that were necessary in
order to give special attention to the midtown area in the an-
nual report; (2) not giving special attention to significant changes
in the midtown area (i.e., the interaction between the project,
the Javits Center, and the changing traffic flow patterns
generated by the center); and (3) failing to describe these signifi-
cant changes “realistically” in the annual report.

5. The fifth claim, “Effectiveness of carbon monoxide
mitigation measures for Project not determinable”, refers again
to § 3.6 of the 1984 SIP and alleges that the responsible agen-
cies have failed to provide computations and reports on emis-
sions reductions that are required by the SIP and necessary for
the evaluation of the effectiveness of project mitigation measures.

6. The sixth claim, “SIP evaluation of Project effect or emis-
sions did not occur before Project approval”, refers to that part
of § 3.6 of the 1984 SIP that designates the EIS as “[t]he primary
mechanism for comprehensive evaluation of major projects
which may have a significant impact on air quality”. Id. at 3-23.
Like the second claim, this claim relies as well on the statement
in § 3.6 that the city “commits to assure” that adequate mitiga-
tion measures will be implemented to assure attainment and
maintenance of the NAAQS. Id. at 3-24. In essence this claim
alleges that DEC and DEP violated the SIP by not reviewing
the project EIS prior to project approval by the UDC.

A-13

Plaintiffs seek (1) a declaration that the planning for and ap-
proval of the project has resulted in SIP violations; (2) an in-
junction against construction of the project; (3) a direction that
defendants DEC, DEP, Schultz, and Williams carry out their
duties to enforce the SIP; and (4) costs and attorneys’ fees.

Prior to denying plaintiffs leave to file their proposed amended
complaint, Judge Griesa reviewed the complaint at length and
concluded that “there is no indication that the deficiencies in
plaintiffs’ claims can be cured by further amendment.” He found
further that plaintiffs were barred from relitigating the adequacy
of UDC’s analysis of the project’s impact on traffic and air quali-
ty, and\the adequacy of the mitigation measures approved by
UDC. Thus, Judge Greisa ultimately found the proposed amend-
ed complaint legally insufficient and denied plaintiffs any op-
portunity to further amend their pleading. On this appeal we
view his decision as if the amended complaint had been filed
and then subject to review under Fed.R.Civ.P. 12(b)(6).

For the following reasons, we affirm the order of the district
court.

II. DISCUSSION

In the discussion to follow we will, first, examine the scope
of the citizen suits provision to determine whether the plain-
tiffs’ first claim falls within that scope. Next, we will address
the collateral estoppel effect on plaintiffs’ second, fourth, and
fifth claims of the state court judgment in Jackson, 110 A.D.2d
304, 494 N.Y.S.2d 700. Finally, we will address the sufficiency
of the third claim, which is based on reporting requirements,
and of the sixth claim for relief.

A. Scope of the Citizen Suits Provison/The First Claim
for Relief.

Citizen suits are an important aspect of the CAA enforcement
scheme. See Friends of the Earth v. Carey, 535 F.2d 165, 172
(2d Cir.1976); Natural Resources Defense Council, Inc. v. Train,

OO

A-14

510 F.2d 692, 699-700 (D.C.Cir.1974). In enacting this provision,
congress expanded federal court jurisdiction by circumventing
the diversity of citizenship, jurisdictional amount, and tradi-
tional standing requirements, see 535 F.2d at 172-73; 510 F.2d
at 700; S.Rep. No. 91-1196, 91st Cong., 2d Sess., reprinted at Ap-
pendix B, 510 F.2d at.725, in order to allow citizens to bring
suit against the administrator of EPA for failure to perform non-
discretionary duties, or against polluters, including government
agencies and the United States, for violation of specific re-
quirements of an SIP. See 510 F.2d at 700; S.Rep. No. 91-1196,
reprinted at 510 F.2d at 725.

Congress intended citizen suits to “motivate governmental
agencies charged with the responsibility to bring enforcement
and abatement proceedings” against violators. S.Rep. No.
91-1196, reprinted at 510 F.2d at 723. See 510 F.2d at 700. In
order to avoid either overburdening the courts, or unduly in-
terfering with implementation of the act, however, congress
carefully circumscribed the scope of the provision by authoriz-
ing citizens to bring suit only for violations of specific provi-
sions of the act or specific provisions of an applicable implemen-
tation plan. See S.Rep. No. 91-1196, reprinted at 510 F.2d at 723,
see also Friends of the Earth v. Consolidated Rail Corp., 768
F.2d 57, 63 (2d Cir.1985) (discussing congressional purpose in
limiting citizen suits). By the specificity requirements congress
sought to establish “an objective evidentiary standard [that]
would have to be met by the citizen who brings an action under
{§ 7604]”, and thereby eliminate the need for “reanalysis of
technological or other considerations at the enforcement stage.”
See Citizens Ass'n of Georgetown the Committee of 100 on the
Fed. City v. Washington, 535 F.2d 1318, 1322 (D.C.Cir.1976)
(citation omitted).

{1] Thus, plaintiffs are limited under § 7604 to seeking relief
from specific violations of existing SIPs; they may not, through
a citizen suit, obtain modification of an SIP to conform with
their own “notion of proper environmental policy.” Action for
Rational Transit v. West Side Highway Project, 699 F.2d 614,
616 (2d Cir.1983). Such a claim must be addressed directly to

PEN et ee ee eee

A-15

the court of appeals, which has exclusive jurisdiction to review
EPA approval of SIPs. See id.; 42 U.S.C. § 7607(b)(1).

Section 7604(a)(1)(A) allows any person to bring a suit against
an individual or government agency who violates an “emission
standard or limitation” under the CAA. The statutory defini-
tion of “emission standard or limitation” includes “any condi-
tion or requirement under an application implementation plan
relating to transportation control measures”. 42 U.S.C.
§ 7604(f) (3).

[2] Plaintiffs contend that their first claim alleges a specific
violation of an existing SIP because the elimination of carbon
monoxide hot spots by 1987 is a condition or requirement relating
to a transportation control measure. We disagree.

In prior cases we have recognized the limitations that con-
gress has placed on the exercise of jurisdiction over citizen suits
under § 7604. See Council of Commuter Orgs. v. Metro. Transp.
Authority, 683 F.2d 663, 670 (2d Cir.1982) (plaintiffs seeking
to bring a citizen suit “for violation of an emission standard or
limitation contained in an applicable plan * * * must allege a
violation of a specific strategy or commitment in the SIP and
describe, with some particularity, the respects in which com-
pliance with the provision is deficient”) (footnote omitted); Ac-
tion for Rational Transit v. West Side Highway, 699 F.2d at 616
(“[t]he aims and goals of the SIP are not enforceable apart from
the specific measures designed to achieve them”).

In Council of Commuter Orgs. v. Metro. Transp. Authority,
we suggested that claims relating to a mass transit improvement
provision in New York’s SIP and including an allegation that
New York City violated a fare stabilization strategy by increas-
ing transit fares were “arguably sufficient to state a claim” under
the citizen suits provision. 683 F.2d at 671. We stated, however,
that “vague and conclusory assertions [such as] ‘Failure to make
reasonable further progress in the 1979 SIP implementation’
[and] ‘Failure to rehabilitate/improve reliability, safety, etc. of
region’s transit system’ followed by citation to large chunks of

A-16

New York’s SIP as the allegedly violated provision” were insuf-
ficient to sustain a citizen suit. Jd. at 670. Plaintiffs’ first claim,
which alleges, in essence, that the city has failed, or will fail,
to attain the NAAQS in the project area thus falls short of this
requirement of specificity.

Plaintiffs’ construction of the CAA would eliminate the
distinction between the NAAQS and measures that are design-
ed to assure attainment of the NAAQS. The CAA and the regula-
tions promulgated thereunder, however, emphasize the distinc-
tion between the attainment of the NAAQS, which is a goal of
the CAA, and the specific provisions of an SIP which are the
only permissible subjects of a citizen suit. As we have noted,
plaintiffs contend that their first claim alleges a violation of a
condition or requirement relating to a transportation control
measure. The EPA has defined a transportation control measure,
however, as “any measure that is directed toward reducing emis-
sions of air pollutants from transportation sources”. 40 C.F.R.
§ 51.100(r) (1987). See Council of Commuter Orgs. v. Metro.
Transp. Authority, 683 F.2d at 666 n. 2 (“ ‘transportation con-
trol measures’ are strategies designed to reduce pollution by
limiting or controlling motor vehicle use”). See also 42 U.S.C.
§ 7604(f)(3) (including “any condition or requirement under an
applicable implementation plan relating to transportation con-
trol measures” within the meaning of “emission standard or
limitation”). The statutory and regulatory language indicates
that a “transportation control measure” is designed to help
achieve the goal of reducing pollution, and to assure attainment
of the NAAQS.

The NAAQS for carbon monoxide, by contrast, is the stan-
dard established by the EPA pursuant to congressional direc-
tive, see 42 U.S.C. § 7409(a); 40 C.F.R. § 50.8 (1987), that the
EPA determined the states must attain in order to effectuate
congress’s goal: “to protect and enhance the quality of the Na-
tion’s air resources so as to promote the public health and welfare
and the productive capacity of its population”. § 7401(b)(1). See
Concerned Citizens of Bridesburg, 836 F.2d at 780. Section 7604
does not provide for citizen suits based on violation of, or failure
to attain, the NAAQS itself.

A-17

Our conclusion that the NAAQS is not itself a specific provi-
sion of an SIP, which is the only permissible subject of a citizen
suit, is further supported by the text of § 7410(a)(2)(B), which
requires that the administrator approve a proposed SIP if

it includes emission limitations, schedules, and
timetables for compliance with such limitations, and
such other measures as may be necessary to insure at-
tainment and maintenance of such primary or secon-
dary standard, including, but not limited to, transpor-
tation controls, air quality maintenance plans and
preconstruction review of direct sources of air pollu-
tion as provided in subparagraph (D) (emphasis
added).

Thus, the enumerated categories of SIP requirements are de-
signed to “insure attainment” of the NAAQS; the NAAQS is not,
itself, within the categories of SIP requirements and it is not
transformed from a standard into a requirement merely because
the SIP states “that all hot spots will be eliminated by the end
of 1987.” 1984 SIP at 3-21. This statement is simply, as the district
court found, a restatement of the CAA’s requirement that the
NAAQS for carbon monoxide be attained by Dec. 31, 1987. See
42 U.S.C. § 7502(c) (date for attainment of NAAQS).

Plaintiffs also argue that because the SIP contains a commit-
ment to “[t]he ongoing process of identifying and analyzing car-
bon monoxide hot spots and * * * to the implementation of
measures specific to each hot spot as is found necessary”, 1984
SIP at 1-5, there will be a violation of a condition or require-
ment of the SIP relating to a transportation control measure
because hot spots will allegedly persist in the project area after
1987, during construction and after completion of the project,
in spite of the mitigation measures approved by the UDC. Put-
ting aside for the moment the questions of whether the plain-
tiffs are estopped from litigating the sufficiency of the mitiga-
tion measures (see part II, infra), and of whether the plaintiffs
could obtain an injunction against the project even if they could
show that hot spots will persist in the project area after 1987

A-18

(an issue we need not reach), we think that plaintiffs’ construc-
tion of the statute would contravene congressional intent and
render superfluous the clear statutory distinctions between the
NAAQS and the types of specific strategies congress meant to
be enforceable through citizen suits.

[3,4] Plaintiffs argue that the district court’s interpretation
of the citizen suits provision would render meaningless the words
“relating to” in § 7604(f)(3). Not so. There are circumstances
where the term “condition or requirement relating to a transpor-
tation control measure” would retain significance. For exam-
ple, the city has committed to the process of identifying and
analyzing hot spots and to implementing measures specific to
each hot spot in order to attain the NAAQS. A commitment to
changing traffic flow patterns at a particular hot spot is a com-
mitment to a “transportation control measure”. A condition or
requirement relating to that transportation control measure is
the installation of a new traffic signal system. See 1984 SIP at
3-16 (Area Wide Control Measures). Under this view a suit could
be brought by a citizen if the state (a) failed to obtain the list
of candidate hot spots from local transportation planning agen-
cies as required by 1984 SIP 3.2 (Selection of Candidate Hot
Spots); or (b) failed to implement the specific requirement
relating to a transportation control measure designed to
eliminate the hot spot, i.e., installation of a new traffic signal
system. |

Contrary to plaintiffs’ contention, our interpretation does not
trivialize or emasculate the citizen suits provision; rather, it
adheres to the statutory language while effectuating both the
congressional purpose of fostering enforcement and the equal-
ly important purpose of providing specific, objective standards
for citizen suits.

B. Collateral Estoppel.

[5] Several of plaintiffs’ additional claims challenge the ade-
quacy of the mitigation measures the UDC approved as sufficient

A-19

to lower carbon monoxide levels in the project area. Before we
take up these claims in detail, we must consider whether col-
lateral estoppel precludes plaintiffs’ relitigation of the adequacy
of the mitigation measures approved by UDC. If it does, the
second, fourth, and fifth claims, which rely on alleged deficien-
cies in the EIS process, must fail.

l. Overview of collateral estoppel.

Collateral estoppel, or issue preclusion, is the branch or res
judicata doctrine that prevents a party from relitigating an issue
of fact or law that has been decided in an earlier suit. See Mur-
phy v. Gallagher, 761 F.2d 878, 879 (2d Cir.1985). Federal courts
are required by 28 U.S.C. § 1738 to give effect to the collateral
estoppel rules of the state that rendered a prior judgment where
the same issues are raised later in a federal proceeding. See Migra
v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81, 104
S.Ct. 892, 896, 79 L.Ed.2d 56 (1984) (citing Kremer v. Chemical
Constr. Corp., 456 U.S. 461, 466, 102 S.Ct. 1883, 1889, 72
L.Ed.2d 262 (1982); Allen v. McCurry, 449 U.S. 90, 96, 101 S.Ct.
411, 415, 66 L.Ed.2d 308 (1980)); Cameron v. Fogarty, 806 F.2d
380, 384 (2d Cir.1986), cert. denied, _U.S._, 107 S.Ct. 1894,
95 L.Ed.2d 501 (1987). Thus, our determination of the preclusive
effect of the prior New York judgment in this case requires an
analysis of the collateral estoppel effect that would be accord-
ed the prior judgment under New York’s standards for collateral
estoppel. See Migra, 465 U.S. at 81, 104 S.Ct. at 896 (in the
absence of federal law modifying § 1738, the preclusive effect
of the state judgment is determined by that state’s law); Kremer,
456 U.S. at 481-82, 102 S.Ct. at 1898 (§ 1738 “commands a federal
court to accept the rules chosen by the State from which the
judgment is taken”).

If the elements of collateral estoppel under New York law are
otherwise satisfied, the New York courts’ affirmance of the results
of the UDC administrative process are entitled to preclusive ef-
fect. See Kremer, 456 U.S. at 480, 485, 102 S.Ct. at 1896, 1899;
Mitchell v. Natl Broadcasting Co., 553 F.2d 265, 276 (2d
Cir.1977); Capital Tel. Co. v. Pattersonville Tel. Co., 56 N.Y.2d
ll, 17, 451 N.Y.S.2d Hl, 13, 436 N.E.2d 461, 462 (1982). In Kremer,

A-20

the Supreme Court gave preclusive effect to a New York court
judgment affirming an agency (New York State Division of
Human Rights) determination that there was no probable cause
to believe that an employer had engaged in discriminatory prac-
tices. 456 U.S. at 463-64, 485, 102 S.Ct. at 1888, 1899. The Court
emphasized that in order to qualify for full faith and credit under
§ 1738, state proceedings need only satisfy the requirements of
due process and be sufficient to be entitled to preclusive effect
in the courts of that state. Jd., at 481, 102 S.Ct. at 1897-98.

Relying on Zanghi v. Inc. Village of Old Brookville, 752 F.2d
42 (2d Cir.1985), plaintiffs argue that the collateral estoppel can-
not apply in this case because UDC’s findings were made in a
legislative, rather than adjudicatory, capacity. See id. at 46 (col-
lateral estoppel applies “ ‘to the quasi-judicial determinations
of administrative agencies when rendered pursuant to ad-
judicatory authority’ ”) (citing Ryan v. New York Tel. Co., 62
N.Y.2d 494, 496, 478 N.Y.S.2d 823, 825-26, 467 N.E.2d 487,
489-90 (1984)). But Zanghi and Ryan involved the application
of collateral estoppel directly to administrative proceedings, and
this case, like Kremer, involves the collateral estoppel effect to
be given after judicial review of an administrative determina-
tion. See Kremer, 456 U.S. at 481, n. 21, 102 S.Ct. at 1897 n.
21 (“It is well established that judicial affirmance of an ad-
ministrative determination is entitled to preclusive effect. There
is no requirement that judicial review must proceed de novo
if it is to be preclusive.”) (citations omitted).

New York’s requirements for collateral estoppel were ar-
ticulated in a leading case, Schwartz v. Pub. Adm’r of Bronx,
24 N.Y. 2d 65, 71, 298 N.Y.S.2d 955, 960, 246 N.E. 2d 725, 729
(1969), as follows:

New York Law has now reached the point where there
are but two necessary requirements for invocation of
the doctrine of collateral estoppel. There must be an
identity of issue which has necessarily been decided
in the prior action and is decisive of the present ac-
tion, and, second, there must have been a full and fair

'
'
————————

A-21

opportunity to contest the decision now said to be
controlling.

See Ryan, 62 N.Y.2d at 500-02, 478 N.Y.S. 2d at 826-27, 467
N.E.2d at 490-91; Capital Tel., 56 N.Y.2d at 13, 451 N.Y.S.2d
at 13, 436 N.E.2d at 463, Gilberg v. Barbieri, 53 N.Y.2d 285,
292, 441 N.Y.S.2d 49, 51, 423 N.E.2d 807, 809 (1981); Gramatan
Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 484, 414 N-Y.S.2d
308, 310-311, 386 N.E.2d 1328, 1330-31 (1979).

Thus, we must determine whether the issue of the adequacy
of the mitigation measures approved by UDC was an issue that
was determined and necessary to the judgment in the New York
court, and whether the parties who would be precluded from
relitigating that issue in federal court had a full and fair op-
portunity to litigate the issue in state court.

2. Identity of issues

In New York “collateral estoppel is a flexible doctrine which
can never be rigidly or mechanically applied”. Gilberg, 53 N-Y.
2d at 292, 441 N.Y.S.2d at 51, 423 N.E.2d at 809 (citations omit-
ted). Nevertheless, the requirement of identity of issues, unlike
the requirement of identity of parties, is an absolute require-
ment. See Gramatan, 46 N.Y.2d at 486, 414 N.Y.S.2d at 311, 386
N.E.2d at 1331. Because this case arises in the context of the
“labyrinth that is the Clean Air Act,” Connecticut v. Envtl. Pro-
tection Agency, 696 F.2d 147, 150-51 (2d Cir.1982); see Chevron,
U.S.A., Inc. v. Natural Resources Defense Counsel, Inc., 467
U.S. 837, 865, 104 S.Ct. 2778, 2793, 81 L.Ed. 2d 694 (1984),
determining whether the issues are identical is not easy. Never-
theless, a careful examination of the facts in the context of the
joint state and federal responsibilities established by the act, see
Concerned Citizens of Bridesburg, 836 F.2d at 780; Conn. v.
EPA, 696 F.2d at 151, leads us to conclude that the issues in this
case and the state court litigation are, indeed, identical.

In the New York appellate division, plaintiffs appealed from
that portion of the judgment of the supreme court, New York
County, that dismissed their challenges to UDC’s analysis of the

el

A-22

project’s impact on traffic and air quality and their claims that
UDC’s environmental review of the project’s impact was pro-
cedurally deficient. Jackson, 110 A.D.2d 304, 305, 494 N.Y.S.2d
700, 701 (1st Dep’t 1985). The appellate division reviewed both
the procedural and the substantive aspects of the UDC’s en-
vironmental analysis in order to determine whether UDC had
complied with SEQRA’s requirements. Id. at 308, 494 N.Y.S.2d
at 703.

The appellate division agreed with the trial court’s rejection
of plaintiffs’ claims concerning UDC’s traffic and air quality
analysis. Id. at 310, 494 N.Y.S.2d at 704. The court found that
UDC had provided sufficient opportunity for public participa-
tion in the project’s air pollution analysis, and rejected plain-
tiffs’ claims that there were omissions and errors in the analysis
of traffic and air quality impacts. Id., 494 N.Y.S.2d at 704. The
court found as well that UDC had employed “the most ap-
propriate computer model” to calculate automobile emissions,
and that its calculations were reliable. Id., 494 N.Y.S.2d at 704.

The appellate division addressed next the issue of the ade-
quacy of the mitigation measures approved by UDC, one of the
exact issues plaintiffs seek to relitigate here, and concluded:

With regard to the obligation to mitigate the Pro-
ject’s adverse effects on traffic and air quality, UDC
compiled detailed information and proposed exten-
sive mitigative measures to minimize those adverse im-
pacts and to meet the Federal Clean Air Act’s stan-
dard for acceptable carbon monoxide levels. As part
of its hard look at this problem UDC analyzed the
traffic impact for both the Project’s area and a large
surrounding area. It adopted a “worst case” analysis,
which included assuming peak hour traffic,
simultaneous full use of all theatres, no diversion of
traffic to less congested streets, and no increased en-
forcement of traffic regulations, to arrive at a very
conservative model for traffic analysis. This same
analysis was the basis for the air quality assessment.

A-23

To meet the expected adverse impacts UDC studied
and then proposed a multitude of mitigative measures
which would place the area within federal and City
guidelines on carbon monoxide levels and which in
fact are expected to produce lower carbon monoxide
concentrations than presently exist. Our review of
UDC’s analysis of the traffic and air quality impacts
assures us that UDC identified the adverse traffic and
air quality impacts, took a hard analytical look at
them and proposed mitigative measures which, it had
a reasonable basis to conclude, would in fact minimize
those adverse effects. Special Term, therefore, correctly
deferred to the judgment of UDC in this area.

Id. at 310-11, 494 N.Y.S.2d at 704. Thus, the appellate division
held (1) that UDC had complied with the procedural re-
quirements of SEQRA for the EIS process and (2) that UDC’s
approval of the mitigation measures that it had concluded were
sufficient to minimize the project’s adverse effects on traffic and
air quality and sufficient to meet the NAAQS for carbon monox-
ide, was neither arbitrary nor capricious, nor unsupported by
substantial evidence. See id. at 309, 494 N.Y.S.2d at 702, 704.
In short, the state courts rejected plaintiffs’ challenge to the ade-
quacy of the mitigation measures.

The same adequacy issue that was decided by the state court
is being raised by plaintiffs now in federal court. Plaintiffs argue,
however, that the state SEQRA standards and the federal CAA
standards are sufficiently distinct to preclude a finding of identity
of issues here. See Cullen v. Margiotta, 811 F.2d 698, 732 (2d
Cir.) (“issues are not identical when the standards governing
them are significantly different”) (citations omitted), cert.
denied, _U.S._, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987). In
Cullen we held that a state court ruling that plaintiffs could
not maintain a class action would not be given collateral estop-
pel effect because the state statute, N.Y.Civ.Prac. L. & R. § 1005,
does not permit class actions for separate wrongs to separate
persons, but Fed.R.Civ P. 23 does.

Cullen does not, however, control the disposition of the col-
lateral estoppel issue in this case. First, substantive standards

A-24

under SEQRA and the CAA are not diametrically opposed as
the class action rules were in Cullen; rather, the SEQRA EIS
process is the mechanism that the state uses to evaluate indirect
sources in order to insure attainment of the NAAQS. Further-
more, although the SEQRA standard (agency shall “choose alter-
natives which, consistent with social, economic and other essen-
tial considerations, to the maximum extent practicable, minimize
or avoid adverse environmental effects”) does not, on its face,
embody the absolute requirement that the NAAQS be attained
by a specific date, that UDC, during the EIS process and in its
report, and the parties, in their pleadings and arguments before
the state and federal courts, all looked to the NAAQS as “the
standard” that must be attained.

Second, the standards for review of agency determinations
in New York State and in federal courts are essentially the same.
Compare N.Y.Civ.Prac. L & R. § 7803 with 5 U.S.C. § 706. See
Jackson, 110 A.D.2d at 307-08, 494 N.Y.S.2d at 703 (court deter-
mines “whether the agency has complied with the applicable
law, identified the relevant areas of environmental concern,
taken a ‘hard look’ at them and made a reasoned elaboration
of the basis for its determinations”) (citations omitted); Aldrich
v. Pattison, 107 A.D.2d 258, 265, 486 N.Y.S.2d 23, 29 (2d Dep’t
1985) (state court applies federally derived standard to EIS
review); H.O.M.E.S. v. New York State Urban Dev. Corp., 69
A.D.2d 222, 231, 418 N.Y.S.2d 827, 832 (4th Dep’t 1979) (state
standard of administrative review derived from federal NEPA
cases). Nevertheless, while the plaintiffs concede that the New
York judgment controls on the issue of whether UDC’s findings
with regard to mitigation measures were “reasonable”, they sug-
gest that the judgment is somehow not controlling in this case
because the New York court did not decide that UDC’s findings
were “true, or even * * * supported by a preponderance of the

evidence.” Appellants’ brief at 32-33. Because plaintiffs would
not have been entitled to such a determination in federal court
either, this argument is totally unsupportable. “The only role
for a court is to insure that the agency has taken a ‘hard look’
at environmental consequences”, Kleppe v. Sierra Club, 427 US.
390, 410 n.21, 96 S.Ct. 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976),

A-25

and to “make a ‘reasoned elaboration’ of the basis for its deter-
mination”. H.O.M.E.S., 69 A.D.2d at 231, 418 N.Y.S.2d at 832
(citing City of Rochester v. U.S. Postal Service, 541 F.2d 967,
973 (2d Cir. 1976)).

Even if the issue were properly before this court, or if it had
come to us in the first place, our review of the sufficiency of
the project’s mitigation measures would have been the same as
the state court’s because SEQRA’s EIS process was designated
in the SIP as the primary mechanism for indirect source review.
Plaintiffs argue that the inquiry in federal court would be dif-
ferent because the NAAQS is an absolute, objective requirement
that they suggest would be somehow more difficult to satisfy
than the SEQRA standard. The record indicates, however, that
throughout its evaluation and report on the project UDC utilized
the federal nine ppm standard for carbon monoxide incorporated
in the NAAQS. Thus, even if UDC could have applied a less
stringent standard to satisfy SEQRA’s requirements, it did not
in fact do so.

Furthermore, the appellate division found that UDC had a
reasonable basis to conclude that the mitigation measures would
enable the project to meet the federal CAA standards, see 110
A.D.2d at 311, 494 N.Y.S.2d at 704, and this conclusion was ap-
proved by the New York Court of Appeals, 67 N-Y.S.2d 400, 426,
503 N.Y.S.2d 298, 311, 494 N.E.2d 429, 441 (1986).

The pleadings in the two cases provide further support for
our finding of identity of issue. See Watts v. Swiss Bank Corp.,
27 N.Y.2d 270, 278, 317 N.Y.S.2d 315, 321, 265 N.E.2d 739, 744
(1970) (finding of identity supported by comparison of
pleadings); see also Mother's Restaurant, Inc. v. Mama's Pizza,
723 F.2d 1566, 1570 (Fed. Cir.1983) (court looked to parties’
pleadings to ascertain whether an issue was actually litigated);
Nelson v Swing-A-Way Mfg. Co., 266 F.2d 184, 187 (8th Cir.
1959) (“‘look to the pleadings * * * and examine the record to
determine the questions essential to the decision of the former
controversy’ ”) (quoting United Shoe Machinery Corp. v. United
States, 258 U.S. 451, 459, 42 S.Ct. 363, 366, 66 L.Ed. 708 (1922)).
Plaintiffs themselves raised the issue of the adequacy of the

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mitigation measures under CAA standards in their Article 78
petition. Verified petition {{ 21, 22, 25, Rosenthal v. New York
State Urban Dev. Corp., No. 3020/85 (Sup.Ct.N.Y.Cty. June 15,
1985). The language in the second claim for relief in plaintiffs’
proposed amended federal complaint (“Failure to require Pro-
ject air pollution mitigation measures to be effective”) duplicates,
to a great extent, the language in the first claim for relief in
the state Article 78 proceeding (“The FEIS fails to address ade-
quately the air pollution effects of the Project”). Both claims
allege, essentially, that UDC failed to obtain the city’s commit-
ment to mitigation measures sufficient to meet the NAAQS.

3. Issue necessary to state court’s judgment.

As we previously noted, under New York’s collateral estop-
pel principles, even if the identical issue was decided in the state
court, that decision must also have been necessary to the court’s
judgment. Kleinberger v. Town of Sharon, 116 A.D.2d 367, 369,
501 N.Y.S.2d 746, 747 (3d Dep’t 1986) (“‘a judgment does not
work an estoppel as to unessential facts, even though put in issue
by the pleadings and directly decided’”) (citing Silberstein v.
Silberstein, 218 N.Y. 525, 113 N.E. 495 (1916)). In this case, the
federal and state statutory schemes are highly interrelated and
both the parties and the courts relied on the federal standard
in assessing UDC’s compliance with SEQRA. In short, the ade-
quacy of the mitigation measures under the CAA was, as a prac-
tical matter, a necessary component in the state court’s deci-
sion. Cf. Dennis v. Rhode Island Hospital Trust Natl Bank, 744
F.2d 893, 899 (1st Cir.1984) (“An issue may be ‘actually’ decid-
ed even if it is not explicitly decided, for it may have constituted,
logically or practically, a necessary component of the decision
reached.”) (emphasis in original). This is not a case where the
state court made “an incidental or collateral determination of
an issue that was not material” that should not be accorded
preclusive effect in a later litigation. See IB J. Moore, Moore’s
Fed. Prac.{ 0.443 [5.-1].

4. Full and fair opportunity to litigate the issue.

We conclude as well that the plaintiffs had a full and fair
opportunity to litigate this issue in the state court. The factors

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that a New York court would consider in determining whether
plaintiffs had a full and fair opportunity include “the size of
the claim, the forum of the prior litigation, * * * the extent of
the litigation, the competence and experience of counsel, the
availability of new evidence, indications of a compromise ver-
dict, differences in the applicable law and forseeability of future
litigation.” Schwartz, 24 N.Y.2d at 72, 298 N.Y.S.2d at 961, 246
N.E.2d at 729.

[6] Here, plaintiffs do not seek money, but the underlying
controversy in the state case — viability of the project — was the
same as the one now before this court. The state claims were
litigated through two levels of appeal by the same highly
qualified counsel as appears before this court. There is no new
evidence germane to the issue, and no suggestion of a com-
promise verdict. Moreover, the differences in applicable law are
a matter of form rather than substance, and plaintiffs were not
only in the best position to foresee the possibility of future litiga-
tion, they were actually prepared with the complaint in this case
and filed it immediately after they lost the state action. Simply
because application of collateral estoppel in this federal action
to an issue decided in state court might deprive plaintiffs of the
opportunity to litigate here a claim that is based, in part, on
federal law does not, of itself, render the doctrine inapplicable.
See Murphy v. Gallagher, 761 F.2d 878, 885-86 (2d Cir.1985)
(even when federal court action raises claims within exclusive
federal jurisdiction, collateral estoppel may apply to component
issues).

5. Identity of parties.

[7] Finally, although two of the plaintiffs here, Brendan Gill
and the Whitby Tenants’ Association, were not parties in the
state courts, there is sufficient privity between the two new plain-
tiffs and the state court petitioners, who are all plaintiffs in this
case, to establish identity of parties. See Green v. Santa Fe In-
dustries, Inc., 70 N.Y.2d 244, 253, 519 N.Y.S.2d 793, 796, 514
N.E.2d 105, 107-08 (1987) (“to establish privity the connection
between the parties must be such that the interests of the non-
party can be said to have been represented in the prior pro-
ceeding”); Gramatan v. Home Investors Corp., 46 N.Y.2d at 486,

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414 N.Y.S.2d at 311, 386 N.E.2d at 1331 (identity of parties is
not an absolute requirement).

In both the state court petition and the proposed amended
federal complaint, the named plaintiffs characterize themselves
as individuals who work or live in the project area and who will
be injured in their enjoyment of the project area if the project
is built. See Rosenthal v. New York State Urban Dev. Corp.,
verified petition at { 10, No. 3020/85 (Sup.Ct.N.Y.Cty. June 15,
1985) (petitioners “will be injured in their enjoyment of the area
if the Project is allowed to proceed without a proper review of
its environmental impacts”); Wilder v. Thomas, 659 F.Supp.
1500 amended complaint at ¢ 8, 85 Civ. 8356 (S.D.N-Y. July 16,
1986) (plaintiffs “will be injured in their health and their en-
joyment of the Project area if the Project is built and results in
violations of the SIP”).

Significantly, the issues raised in the two proceedings are such
that they do not vary according to individual plaintiffs. See Katz
v. Blum, 460 F.Supp. 1222, 1224 (S.D.N.Y. 1978) (dicta), aff‘d
without opi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0685%3A1. Public record. Not legal advice.