Appendix — City of Highland Park v. Train

Supreme Court brief1976

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! | oe FILED

OCT 22 1975

MICHAEL RODAK, JR., CLERK

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

IN THE

Supreme Court of the Auited States

Ocroser TERM, 1975

No. ‘75 - 610 1

THE CITY OF HIGHLAND PARK, ILLINOIS, EtTc., &T AL.,

| Petitioners,

RUSSELL E. TRAIN, ETc., ET AL.,

Respondents.

Gunthorp-Warren Printing Company, Chicago e Financial 66565

er Se Se -

IN THE

Suvuvreme Court of the Gnited States |

OcTOBER TERM, 1975.

No.

THE CITY OF HIGHLAND PARK, ILLINOIS, eEtc., ET AL.,

Petitioners,

vs.

RUSSELL E. TRAIN, ETc., ET AL.,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

INDEX TO APPENDIX.

Statutes Involved.

PAGE

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Opinions Below.

Modified Opinion of the Court of Appeals for the Seventh

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Judgment Order of July 24, 1975 .................. A39

Order of July 24, denying Petition for Rehearing ....... A40

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Opinion of the Court of Appeals for the Seventh Circuit

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Opinion of the District Court for the Northern District

of Illinois entered March 15, 1974 ............... A71

Supplemental Opinion of the District Court for the North-

ern District of Illinois entered March 25, 1974 ..... A96

UNITED STATES Copg, TITLE 5

§ 701. Application; definitions

(a) This chapter applies, according to the provisions

thereof, except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion

by law.

(b) For the purpose of this chapter—

(1) “agency” means each authority of the Government

of the United States, whether or not it is within or subject

to review by another agency, but does not include—

(A) the Congress;

(B) the courts of the United States;

sions of the United States;

(D) the government of the District of Columbia;

(E) agencies composed of representatives of the

parties or of representatives of organizations of the

parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time

of war or in occupied territory; or

(H) functions conferred by sections 1738, 1739,

1743, and 1744 of title 12; chapter 2 of title 41;

or sections 1622, 1884, 1891-1902, and former sec-

tion 1641(b) (2), of title 50, appendix; and

(2) “person”, “rule”, “order”, “license”, “sanction”,

“relief”, and “agency action” have the meanings given them

by section 551 of this title.

§ 702. Right of review

A person suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action within the

meaning of a relevant statute, is entitled to judicial review

thereof.

§ 703. Form and venue of proceeding

The form of proceeding for judicial review is the special statu-

tory review proceeding relevant to the subject matter in a court

specified by statute or, in the absence or inadequacy thereof,

any applicable form of legal action, including actions for declar-

atory judgments or writs of prohibitory or mandatory injunction

or habeas corpus, in a court of competent jurisdiction. Except

to the extent that prior, adequate, and exclusive opportunity for

judicial review is provided by law, agency action is subject to

judicial review in civil or criminal proceedings for judicial

enforcement.

§ 704. Actions reviewable

Agency action made reviewable by statute and final agency

action for which there is no other adequate remedy in a court

are subject to judicial review. A preliminary, procedural, or

intermediate agency action or ruling not directly reviewable is

subject to review on the review of the final agency action. Except

as otherwise expressly required by statute, agency action other-

wise final is final for the purposes of this section whether or not

there has been presented or determined an application for a

declaratory order, for any form of reconsideration, or, unless

the agency otherwise requires by rule and provides that the

action meanwhile is inoperative, for an appeal to superior

agency authority.

§ 705. Relief pending review

When an agency finds that justice so requires, it may postpone

the effective date of action taken by it, pending judicial review.

On such conditions as may be required and to the extent neces-

sary to prevent irreparable injury, the reviewing court, including

the court to which a case may be taken on appeal from or on

application for certiorari or other writ to a reviewing court, may

issue all necessary and appropriate process to postpone the

effective date of an agency action or to preserve status or rights

pending conclusion of the review proceedings.

§ 706. Scope of review

To the extent necessary to decision and when presented, the

reviewing court shall decide all relevant questions of law,

interpret constitutional and statutory provisions, and determine

the meaning or applicability of the terms of an agency action.

The reviewing court shall—

(1) compel agency action unlawfully withheld or un-

reasonably delayed; and

(2) hold unlawful and set aside agency action, findings,

and conclusions found to be—

(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law;

(B) contrary to constitutional right, power, priv-

ilege, or immunity;

_ (C) in excess of statutory jurisdiction, authority,

or limitations, or short of statutory right;

(D) without observance of procedure required by

law;

(E) unsupported by susbtantial evidence in a case

subject to sections 556 and 557 of this title or other-

wise reviewed on the record of an agency hearing

provided by statute; or

(F) unwarranted by the facts to the extent that

the facts are subject to trial de novo by the reviewing

court.

In making the foregoing determinations, the court shall review

the whole record or those parts of it cited by a party, and due

account shall be taken of the rule of prejudicial error.

UNITED STATES Cope, TITLE 28

§ 1331. Federal question; amount in controversy; costs

(a) The district courts shall have original jurisdiction of all

civil actions wherein the matter in controversy exceeds the sum

or value of $10,000, exclusive of interest and costs, and arises

under the Constitution, laws, or treaties of the United States.

(b) Except when express provision therefor is otherwise

made in a statute of the United States, where the plaintiff is

finally adjudged to be entitled to recover less than the si 1 or

value of $10,000, computed without regard to any setoff or

counterclaim to which the defendant may be adjudged to be

entitled, and exclusive of interests and costs, the district court

may deny costs to the plaintiff and, in addition, may impose

costs on the plaintiff.

§ 1361. Action to compel an officer of the United States to

perform his duty :

The district courts shall have original jurisdiction of any

action in the nature of mandamus to compel an officer or em-

ployee of the United States or any agency thereof to perform

a duty owed to the plaintiff.

UNITED STATES CopE, TITLE 42

§ 1857h—2. Citizen suits—Establishment of right to bring suit

(a) Except as provided in subsection (b) of this section,

any person may commence a civil action on his own behalf—

(1) against any person (including (i) the United States,

and (ii) any other governmental instrumentality or agency

to the extent permitted by the Eleventh Amendment to the

Constitution) who is alleged to be in violation of (A)

an emission standard or limitation under this chapter or

(B) an order issued by the Administrator or a State with

respect to such a standard or limitation, or

(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty

under this chapter which is not discretionary with the

The district courts shall have jurisdiction, without regard to the

amount in controversy or the citizenship of the parties, to

enforce such an emission standard or limitation, or such an

order, or to order the Administrator to perform such act or

duty, as the case may be.

Notice

(b) No action may be commenced—

(1) under subsection (a)(1) of this section—

(A) prior to 60 days after the plaintiff has given

notice of the violation (i) to the Administrator, (ii)

to the State in which the violation occurs, and (iii)

to any alleged violator of the standard, limitation, or

order, or

(B) if the Administrator or State has commenced

and is diligently prosecuting a civil action in a court

of the United States or a State to require compliance

with the standard, limitation, or order, but in any

such aciion in a court of the United States any person

may intervene as a matter of right.

(2) under subsection (a)(2) of this section prior to

60 days after the plaintiff has given notice of such action

to the Administrator,

except that such action may be brought immediately after such

notification in the case of an action under this section respecting

a violation of section 1857c—7(c)(1)(B) of this title or an

order issued by the Administrator pursuant to section 1857c

—8(a) of this title. Notice under this subsection shall be given

in such manner as the Administrator shall prescribe by regu-

lation.

Venue; intervention by Administrator

source of an emission standard or limitation or an order respect-

ing such standard or limitation may be brought only in the

judicial district in which such source is located.

(2) In such action under this section, the Administrator,

if not a party, may intervene as a matter of right.

Award of costs; security

(d) The court, in issuing any final order in any action

brought pursuant to subsection (a) of this section, may award

costs of litigation (including reasonable attorney and expert

witness fees) to any party, whenever the court determines such

award is appropriate. The court may, if a temporary restraining

order or preliminary injunction is sought, require the filing of

a bond or equivalent security in accordance with the Federal

Rules of Civil Procedure.

Non-restriction of other rights ~

(e) Nothing in this section shall restrict any right which any

person (or class of persons) may have under any statute or

common law to seek enforcement of any emission standard or

limitation or to seek any other relief (including relief against

the Administrator or a State agency).

Definition

(f) For purposes of this section, the term “emission stand-

ard or limitation under this chapter” means—

(1) a schedule or timetable of compliance, emission

limitation, standard of performance or emission standard,

(2) a control or prohibition respecting a motor vehicle

fuel or fuel additive,

which is in effect under this chapter (including a requirement

applicable by reasons of sections 1857f of this title) or under

an applicable implementation plan.

§ 1857h—S. Administrative proceedings and judicial review

(a)(1) In connection with any determination under section

1857c—S(f) of this title or section 1857f—1(b)(5) of this

title, or for purposes of obtaining information under section

1857f—1(b)(4) or 1857f—6c(c)(3) of this title, the Ad-

ministrator may issue subpenas for the attendance and testimony

of witnesses and the production of relevant papers, books, and

documents, and he may administer oaths. Except for emission

data, upon a showing satisfactory to the Administrator by such

owner or operator that such papers, books, documents, or in-

formation or particular part thereof, if made public, would

divulge trade secrets or secret processes of such owner or oper-

ator, the Administrator shall consider such record, report, or

information or particular portion thereof confidential in accord-

ance with the purposes of sections 1905 of Title 18, except that

such paper, book, document, or information may be disclosed to

other officers, employees, or authorized representatives of the

United States concerned with carrying out this chapter, to per-

sons carrying out the National Academy of Sciences’ study and

investigation provided for in section 1857f—1(c) of this title,

or when relevant in any proceeding under this chapter. Wit-

nesses summoned shall be paid the same fees and mileage that

are paid witnesses in the courts of the United States. In case

of contumacy or refusal to obey a subpena served upon any

person under this subparagraph, the district court of the United

States for any district in which such person is found or resides

or transacts business, upon application by the United States and

after notice to such person, shall have jurisdiction to issue an

order requiring such person to appear and give testimony before

the Administrator to appear and produce papers, books, and

documents before the Administraior, or both, and any failure

to obey such order of the court may be punished by such court

as a contempt thereof.

(b)(1) A petition for review of action of the Administrator

in promulgating any national primary or secondary ambient

air quality standard, any emission standard under section 1857c

—7 of this title, any standard of performance under section

1857c—6 of this title, any standard under section 1857f—1

of this title (other than a standard required to be prescribed

under section 1857f—1(b)(1) of this title), any determination

under section 1857f—1(b)(5) of this title, any control or pro-

hibition under section 1857f—6c of this title, or any standard

under section 1857f—9 of this title may be filed only in the

United States Court of Appeals for the District of Columbia.

A petition for review of the Administrator's action in approv-

ing or promulgating any implementation plan under section

1857c—S of this title or section 1857c—6(d) of this title, or

his action under section 1857-—10(c)(2)(A), (B), or (C)

of this title or under regulations thereunder, may be filed only

in the United States Court of Appeals for the appropriate cirouit.

Any such petition shall be filed within 30 days from the date

of such promulgation, approval, or action, or after such date if

such petition is based solely on grounds arising after such 30th

day.

(2) Action of the Administrator with respect to which

review could have been obtained under paragraph (1) shall not

be subject to judicial review in civil or criminal proceedings for

enforcement.

a determination under this chapter required to be made on the

record after notice and opportunity for hearing, if any party

applies to the court for leave to adduce additional evidence,

and shows to the satisfaction of the court that such additional

evidence is material and that there were reasonable grounds

for the failure to adduce such evidence in the proceeding before

the Administrator, the court may order such additional evidence

(and evidence in rebuttal thereof) to be taken before the Ad-

ministrator, in such manner and upon such terms and conditions

as to the court may deem proper. The Administrator may modify

his findings as to the facts, or make new findings, by reason of

the additional evidence so taken and he shall file such modified

or new findings, and his recommendation, if any, for the modi-

fication or setting aside of his original determination, with the

return of such additional evidence.

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IN THE UNITED STATES COURT OF APPEALS

For the Seventh Circuit

No. 74-1271 ;

THE City OF HIGHLAND PARK, _LINOIS, etc., et al.,

Plaintiffs-Appellants,

vs. ;

RUSSELL E. TRAIN, etc., et al.,

Defendants-A ppellees.

Appeal from the United States District Court for the Northern

District of Illinois, Eastern Division — No. 73 C 3027

Bernard M. Decker, Judge.

No. 75-1006

THE City OF HIGHLAND PARK, ILLINOIS, etc., et al.,

Petitioners,

vs.

RussELt E. Train, as Administrator of the United States En-

vironmental Protection Agency, and UNITED STATES EN-

VIRONMENTAL PROTECTION AGENCY,

Respondents.

Petition for Review of an Order of the

Environmental Protection Agency

Argued February 21, 1975 — Decided June 10, 1975

Opinion Modified, July 24, 1975

Before CUMMINGS, SPRECHER and TONE, Circuit Judges.

Tone, Circuit Judge. In the principal case before us in these

consolidated proceedings, No. 74-1271, plaintiffs sue to block

the construction of a shopping center and the extension and

All

widening of the road along which the shopping center is to be

built, relying upon the Clean Air Amendments of 1970, the

National Environmental Protection Act, and the Equal Protec-

tion Clause of the Fourteenth Amendment. They seek to compel

the Administrator of the Environmental Protection Agency to

promulgate “indirect source” and “significant deterioration”

regulations which they hope would preclude the construction

of the shopping center and the road expansion (Counts I and II)

and to enjoin the road expansion until the Department of Trans-

portation has filed an environmental impact statement pursuant

to the National Environmental Protection Act (Count III).

Plaintiffs also allege that the Village of Northbrook has denied

them equal protection by the adoption of a zoning ordinance

which permits the construction of the shopping center (Count

IV).

The District Court dismissed the claims under the Clean Air

Amendments for failure to comply with the 60-day notice re-

quirement of section 304, 42 U.S.C. § 1857h-2, for failure to

state a claim on which relief can be granted, and on the ground

that some of the relief requested was already the subject of

orders issued by other federal courts. Finding it undisputed that

there was no federal involvement in the road expansion proj-

ect, the court granted summary judgment on the claim that an

environmental impact statement should have been filed. The

equal protection claim was also held to be without merit. The

court entered an order dismissing the action, City of Highland

Park v. Train, 374 F.Supp. 758 (N.D. Ill. 1974), from which

plaintiffs appeal and which we affirm.

Plaintiffs are two municipalities adjacent to the site of the

proposed shopping center, a non-profit corporation dedicated to

protecting the environment in the area, and various individuals

who reside near the site. The defendants are the Administrator

of the Environmental Protection Agency, the agency itself, the

Secretary of the Department of Transportation, the department

itself, the Department of Highways of Cook County, Illinois,

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the developers of the shopping center, proposed tenants of the

shopping center, the Village of Northbrook, in which the shop-

ping center will be located, and the trustees of the village.

The right of way of Lake-Cook Road extends from Lake

Michigan along the entire boundary between Lake and Cook

Counties to the western end of the boundary and continues on

west to the Fox River. Between Milwaukee Avenue and Rand

Road, the road is not completed. Where it is completed, it is,

for the most part, two lanes wide. In 1967 the Cook County

Highway Department initiated plans to expand the completed

portions of the road to four lanes and to construct a four-lane

extension on the right-of-way where no actual roadway presently

exists.

In January, 1973, certain of the defendants announced a

plan for the construction of a shopping center on the south side

of Lake-Cook Road between Skokie Highway and Waukegan

Road. The shopping center, according to the complaint, will

occupy one million square feet, have a parking lot accommodat-

ing 5,000 cars, and generate 28,400 vehicle trips per day. Ninety

percent or more of this traffic will be carried by Lake-Cook

Road, the only through-street which provides access to the shop-

ping center. Plaintiffs allege that this traffic “will overwhelm

even the proposed four lane expanded roadway,” and cause

“intolerable” congestion at the intersections of Lake-Cook Road

and Skokie Highway and Waukegan Road. As a result, resi-

dents of the area will be subjected to substantial “noise and dis-

comfort in the use of their homes and in the use of the streets

in their community” and will be exposed to increases in the

concentration of carbon monoxide in the ambient air by more

than 66 percent over existing levels.

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The Clean Air Amendments

and Their Implementation

To explain plaintiffs’ claims under the Clean Air Amend-

ments of 1970, it is necessary to begin by summarizing per-

tinent parts of that legislation and its implementation by actions

of the Administrator and the states and by certain court deci-

sions. The background and a more complete history of the

amendments and their implementation to date appear in Mr.

Justice Rehnquist’s opinion for the Supreme Court in Train v.

Natural Resources Defense Council, Inc., 43 U.S.L.W. 4467

(U.S. April 16, 1975).

When the states did not act to fulfill their “primary respon-

sibility” for prevention of air pollution under earlier federal

clean air legislation, “Congress reacted by taking a stick to the

states in the form of the Clean Air Amendments of 1970, Pub.

L. 91-604, 84 Stat. 1676, enacted on December 31 of that

year.” Train v. Natural Resources Defense Council, Inc., supra,

43 U.S.L.W. at 4468. The 1970 Amendments established a

program to control air pollution to be carried out by the fed-

eral government and the states. The parts of the Amendments

pertinent here may be summarized as follows:

The Administrator was required, before specified dates, to

publish a list of air pollutants and issue “air quality criteria”

containing information about each listed pollutant and its effects

on the air. (Section 108, 42 U.S.C. § 1857c—3.) He was also

required to establish national “ambient air quality standards”

for each air pollutant for which air quality criteria were issued.

(Section 109, 42 U.S.C. § 1857c—4.) The states have primary

authority to establish “implementation plans” to achieve these

standards, but these plans are subject to review by the Admin-

istrator. (Section 110, 42 U.S.C. § 1857c—S.)

Two sets of standards were to be prescribed by the Adminis-

trator, “primary standards,” the “attainment and maintenance of

which, in the judgment of the Administrator, based on [air

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quality] criteria and allowing an adequate margin of safety, are

requisite to protect the public health;” and “secondary stand-

ards,” which “shall specify a level of air quality the attainment

and maintenance of which, in the judgment of the Administrator,

based on such criteria, is requisite to protect the public welfare

from any known or anticipated adverse effects associated with

the presence of such air pollutant in the ambient air.” (Section

109(b), 42 U.S.C. § 1857c—4(b).) The Administrator pre-

scribed these standards within the time allowed him by the Act.

Within nine months after the Administrator’s promulgation

of the national standards, each state was to submit to him a

plan providing for the “implementation, maintenance, and

enforcement” of the standards. (Section 110(a)(1), 42 U.S.C.

§ 1857c—5(a)(1).) Each state plan was required to provide

for the attainment of the national primary standards “as ex-

peditiously as practicable” and not later than three years after

the date the Administrator approved the plan. (Section 110(a)

(2)(A) (i), 42 U.S.C. §1857c—5(a)(2)(A)(i).) The na-

tional secondary standards were to be met within a “reasonable

time” to be specified in the plan. (Section 110(a) (2) (A) (ii),

42 U.S.C. § 1857c—5(a)(2)(A)(ii).) Each state plan was

to include “emission limitations, schedules, and timetables for

compliance with such limitations, and such other measures as

may be necessary to insure attainment and maintenance of

such primary or secondary standard, including, but not limited

to, land-use and transportation controls.” Section 110(a) (2)

(B), 42 U.S.C. § 1857c—5(a)(2)(B).) Other prerequisites

to approval by the Administrator are set forth in the Act. (Sec-

tion 110(a)(2)(C) through (H), 42 U.S.C. § 1857c—S5(a)

(2)(C) through (H).)

Within four months after the date a state plan was required

to be submitted, the Administrator was required to review the

plan to determine whether it satisfied the statutory requirements

and to approve or disapprove the plan or each portion thereof.

(Section 110(a), 42 U.S.C. § 1857c—S5(a).) If the Admin-

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istrator determined that a state’s plan or any portion thereof

did not satisfy the statutory requirements, he was to disapprove

the plan, or the offending portion thereof, and, within six

months after the date the plan was required to be submitted,

promulgate his own implementation plan or portion thereof for

that state. (Section 110(c) (1), 42 U.S.C. § 1857c—5(c) (1).)

Significant Deterioration Regulations

During the period he was reviewing state plans, the Admin-

istrator questioned his authority to require those plans to

protect against “significant deterioration” of air quality in

areas in which the air was cleaner than required by the national

standards, when that significant deterioration would not result

in pollution violative of the national standards. He took the

position that he would not demand such provisions in state

plans. See Sierra Club v. Ruckelshaus, 344 F.Supp. 258, 254

(D.D.C. 1972), affd per curiam, 4 E.R.C. 1815 (D.C. Cir.

1972), affd by an equally divided Court sub nom. Fri v.

Sierra Club, 412 U.S. 541 (1973). In the Sierra Club case

the court held, on motion for preliminary injunction, that the

Administrator had a non-discretionary duty to protect the air

quality from significant deterioration and issued a preliminary

injunction prohibiting him from approving state plans “which

allow pollution levels of clean air to rise to the secondary

standard level of pollution.” 344 F.Supp. at 256.’ The court

ordered the Administrator to promulgate proposed significant

deterioration regulations within six months as to any state plan

which permitted or failed to take measures sufficient to prevent

significant deterioration. 2 E.L.R. 20262, 20263.

As a result of that decision the Administrator again reviewed

all state implementation plans and disapproved them to the

extent that they failed to prevent significant deterioration of air

quality. (40 C.F.R. § 52.21 (1974), 37 Fed. Reg. 23,836

$. ee ee eee Inc. Vv. Train,

489 F.2d 390, 408 (Sth Cir. 1974), rev’d on other

grounds,

supra, 43 US.LW. 4467; Exxon Corp. v. City of New York,

372 F.Supp. 335, 339 (SDN. Y. 1974).

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(Nov. 9, 1972).) One of the plans affected was that of Illinois,

which had been submitted to the Administrator on January

31, 1972, and given partial approval on May 26, 1972. (40

C.F.R. § 52.722 (1974), 37 Fed. Reg. 10,842 (May 31,

1972).) In response to his duty under the court’s order in the

Sierra Club case the Administrator proposed (38 Fed. Reg.

18,986 (July 16, 1973)) and reproposed (39 Fed. Reg. 31,000

(Aug. 27, 1974)) rules on the prevention of significant air

quality deterioration. Eventually he promulgated regulations for

two of the six air pollutants for which he had earlier promul-

gated national ambient air quality standards under his statutory

duty. (39 Fed. Reg. 42,510 (Dec. 5, 1974).) These regula-

tions are intended to prevent significant deterioration in the

quality of air for two pollutants, particulate matter and sulfur

dioxide, by limiting increases in the concentrations of those

pollutants in areas where the present level of pollution is less

than required by the national ambient air quality standards.

This is to be accomplished by dividing those areas in which the

level of pollution does not presently exceed the national ambient

air quality standards into three classes in which increases in

concentration of the two pollutants are limited by different

amounts. The Administrator originally classified all areas, but

the states, after a public hearing and subject to other require-

ments, may submit to the Administrator proposals for reclassi-

fication of areas. No final regulations have been promulgated

for the other four pollutants as of yet. The Administrator,

2. The six pollutants originally identified were sulfur

dioride,

particulate matter, carbon monoxide, oxidants,

carbons, and nitrogen dioxide. (40 C_F.R. §§ 50.4—50.11 tis34))

The original proposed rules referred to in the text broadened “nitro-

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Indirect Source Regulations

When the Administrator gave partial approval to the

Illinois implementation plan on May 26, 1972, he also granted

to Illinois, as he did to a number of other states, extensions until

February 15, 1973, to submit the transportation portion of its

implementation plan. Several other states were given until mid-

1977 to attain the national primary standards. (37 Fed. Reg.

10,842 (May 31, 1972).) The Court of Appeals for the

District of Columbia, on a petition for review, held that this

extension was not authorized by the Act, and also found that

the record did not show whether the Administrator had con-

ducted a state-by-state determination on the efficacy of the

state plans to provide for the maintenance of the primary and

secondary standards beyond May 31, 1975. National Resources

Defense Council, Inc. v. EPA, 475 F.2d 968, 970, 971-972

(D.C. Cir. 1973). The court established a new time schedule

under which the Administrator was to review the maintenance

provisions of the state plans and disapprove those which he

of the primary standard. (/d. at 972.) In this re-examination,

the Administrator found that none of the state plans, including

that of Illinois, contained adequate provisions for insuring the

maintenance of national standards, but granted the states an-

other opportunity to develop adequate programs. (40 C.F.R.

§ 52.22(a) (1974), 38 Fed. Reg. 6280 (March 8, 1973).)

The Administrator, pursuant to the order of the Court of

Appeals for the District of Columbia in Natural Resources

Defense Council, Inc. v. EPA, then promulgated regulations

to insure the maintenance of national standards by requiring

state implementation plans to contain procedures for review of

any new stationary source or modification that might “interfere

with attainment or maintenance of a standard either directly

because of emissions from it, or indirectly, because of emissions

resulting from mobile source activities associated with it.” (40

C.F.R. § 51.18 (1974), 38 Fed. Reg. 15,834, 15,836 (June

18, 1973).) He suggested guidelines to assist the states in com-

Al8

plying with the requirements of section 51.18. (See Appendix

O to 40 C.F.R. § 51.18.)

The Administrator was also required by National Resources

Defense Council, Inc. v. EPA, to promulgate indirect sou ce

review regulations if states either failed to submit such regula-

tions on their own or submitted inadequate regulations. (475

F.2d at 971.) In response to that requirement the Administrator

proposed regulations (38 Fed. Reg. 29,893 (Oct. 30, 1973)),

and, after public hearings in 43 states, promulgated them. (40

C.F.R. § 52.22 (1974), 39 Fed. Reg. 7270 (Feb. 25, 1974).)

He also determined that since the plans of most states, including

Illinois, contained inadequate provisions for review of indirect

sources as required by section 51.18, the provisions of section

52.22(b) would be incorporated by reference and made a part

of each of those plans. (See, e.g., 40 C.F.R. § 52.736 (1974).)

An indirect source is defined by the regulation as “a facility,

building, structure, or installation which attracts or may attract

mobile source activities that results in emissions or a pollutant

for which there is a national standard,” for example a “[pJarking

facility.” (40 C.F.R. § 52.22(b)(i) (1974).) The regulation

applies to any indirect source on which construction or modi-

fication is to commence after December 31, 1974. The Admin-

istrator later amended the indirect source regulations in re-

spects not material here. (39 Fed. Reg. 25,292 (July 9,

1974).) .

The Motion to Dismiss the Appeal

A motion by the defendants who are the developers of the

shopping center to dismiss the appeal in No. 74-1271 against

them and a prospective tenant was taken under advisement

with the case. These defendants argue that a 1974 amendment

to the Clean Air Act (42 U.S.C. §§ 1857c-5(c)(2)(C), (D))

and the promulgation of indirect source regulations moot Count

I, the only part of the case concerning them, and that no case

or controversy between them and the plaintiffs is raised in the

plaintiffs’ briefs because of failure to comply with Rule 28 (a)

Al9

(5), Fed. R. App. P., which requires a short statement of the

relief sought. The mootness ground is without merit, because

plaintiffs seek in Count I not only promulgation of indirect

source regulations, but also an injunction against construction

of the shopping center until proper regulations have been

promulgated. Since the developer defendants and the tenant

defendants were necessary parties in a claim seeking such an

injunction, the case is not moot as to them. The failure to state

the relief sought against these defendants is not a basis for

dismissal of the appeal as to them in the circumstances of this

case. We therefore deny the motion to dismiss and turn to the

merits of the appeal.

Counts I and II: The Regulations

In Count I of their complaint plaintiffs allege that the Admin-

istrator has been in violation of the provisions of the Act

requiring him to issue two kinds of regulations: (a) significant

deterioration regulations, preventing the significant deteriora-

tion of air quality in areas with air cleaner than national

standards (as stated above, such regulations as to two of the

six pollutants in question have now been promulgated); and

(b) indirect source regulations, preventing violations of the

national air quality standards by indirect sources (as stated

above, these regulations have now been promulgated). They

seek an order requiring him to promulgate those regulations and

to halt further construction of the shopping center until its

plans have been reviewed by the Administrator under both

sets of regulations he is required to promulgate. In Count II the

plaintiffs reallege that the Administrator has been in violation of

his statutory duty to promulgate significant deterioration and in-

direct source regulations. In this count, however, they seek to

halt construction of the Lake-Cook Road expansion and im-

provement project until its plans have been reviewed by the

Administrator under both sets of regulations. To facilitate un-

derstanding of our analysis, we will divide our discussion of

plaintiffs’ claims by considering separately plaintiffs’ rights to

A20

obtain promulgation of the two sets of regulations rather than

by considering separately Counts I and II of their complaint.

Review of the Indirect Source Regulations

The Administrator having promulgated indirect source regu-

lations after the complaint was filed, plaintiffs’ grievance now is

that those regulations exempt indirect sources on which con-

struction was commenced before January 1, 1975, as it was on

the shopping center involved in this case. ~

Section 307(b)(1) of the Amendments, 42 U.S.C. § 1857h-

5(b)(1), provides in pertinent part:

“A petition for review of the Administrator’s action in. . .

promulgating any implementation plan under section

1857c—5 of this title [section 110 of the Amendments]

. . . may be filed only in the United States Court of

Appeals for the appropriate circuit.”

The indirect source regulations are subject to this section.

Entitled “Review of Indirect Sources” (39 Fed. Reg. 7270-7285

(Feb. 25, 1974)), they purport to be promulgated pursuant to

section 110, 42 U.S.C. § 1857c—S. It is so stated in the Ad-

ministrator’s comments in the first part of the regulations.

Furthermore, the regulations contain the subtitle, “Approval and

Promulgation of Implementation Plans,” which is the statutory

language used in section 307. The regulations set out the na-

tional standards for regulation of indirect sources, disapprove

various parts of state implementation plans, and incorporate the

federal standards into those plans. For example, Subpart O

deals with Dlinois and provides:

“Subpart O—lIllinois

“25. Subpart O is amended by adding § 52.736 as

follows:

“§ 52.736 Review of new sources and modifications.

“(a) The requirements of § 51.18 of this chapter are

not met because the State failed to submit a plan for

review of new or modified indirect sources.

A21

“(b) Regulation for review of new or modified indirect

sources. The provisions of § 52.22(b) of this chapter are

appli :

39 Fed. Reg. at 7281.

Since the regulations incorporate the federal standards into the

state plans, the Administrator is in effect promulgating imple-

mentation plans where state plans are deficient, in accordance

with section 110(c) (42 U.S.C. § 1857c—S5), which is to be

reviewed only under section 307(b)(1) (42 U.S.C. § 1957h—

5(b)(1)).

Other courts of appeals have held under analogous circum-

stances that a petition for review under section 307(b)(1) is

the exclusive method of review. In Getty Oil Co. v. Ruckels-

haus, 467 F.2d 349, 355-356 (3d Cir. 1972), cert. denied, 409

U.S. 1125 (1973), the court refused to permit, in an action

filed in the district court, what amounted to an attack on the

compliance date in regulation in the Delaware plan limiting the

amount of sulfur content in burning fuel, holding that the sole

remedy was a petition for review to the court of appeals under

section 307(b)(1). Also supporting the rule that a petition

under that section is the sole remedy for reviewing the promul-

gation or implementation of clean air plans and regulations are

Plan for Arcadia, Inc. v. Anita Associates, 501 F.2d 390, 392

(9th Cir. 1974), cert. denied, _.... US. _.., 95 S.Ct. 517

(1974); and Anaconda Co. v. Ruckelshaus, 482 F.2d 1301,

1304 (10th Cir. 1973). One district court decision is squarely

in point, Pinkney v. Ohio Environmental Protection Agency,

375 F.Supp. 305, 309 (N.D. Ohio 1974), in which the alter-

native ground for dismissal of a challenge to the 180-day delay

in the effective date of the indirect source regulations was that

the exclusive remedy was a petition for review under section

307(b) (1). Similarly, in Delaware Citizens for Clean Air, Inc.

v. Stauffer Chemical Co., 367 F.Supp. 1040, 1046 (D. Del.

1973), the court refused, on the same ground, to entertain an

action to challenge a state-granted variance from compliance

A22

with a sulfur dioxide emission regulation, which the Administra-

tor had treated as a deferral of compliance amounting to a

revision of the state implementation plan and approved as such.

See West Penn Power Co. v. Train, 378 F.Supp. 941, 944-945

(W.D. Pa. 1974); cf. Luneburg and Roselle, Judicial Review

Under the Clean Air Ame xdments of 1970, 15 B.C. Ind. &

Com. L. Rev. 667, 691 n. 145 (1974).

Plaintiffs attempt to characterize the regulations’ exemption

of any facility on which construction was started before January

1, 1975 as a failure to promulgate regulations with respect to

such facilities. We think, however, that a provision defining the

scope of regulations and their effective date is as much a part

of the regulations as the substantive parts.

The explanations contained in the regulations for the exemp-

tion clause are “recent firm congressional guidelines contained

in amendments to the Clean Air Act,” compelling administrative

reasons, and the need to minimize disruptive effects on industry.

(39 Fed. Reg. at 7272-7273.) A review of the sufficiency of

these reasons requires an examination of the administrative

record, which is not before us now but would be if this were a

petition for review.

The exemption provision is an integral part of the regulations

and, like any other part, must be reviewed in a petition for

review. It cannot be reviewed by an action filed in the district

court.

Plaintiffs have in fact filed a separate petition for review of the

indirect source regulations in this court (No. 74-1231), and

on the EPA’s motion to the Court of Appeals for the District

of Columbia (No. 74-1595 in that court). Their contentions

concerning the validity of the exemption provision will presum-

ably be determined in that litigation.

A23

The Failure to Promulgate Significant Deterioration Regulations

for Automobile-Related Pollutants

sulfur dioxide, having been promulgated after the complaint .

was filed (see note 2, supra), plaintiffs now seek to require

the Administrator to promulgate regulations for carbon mon-

oxide and the other automobile-related pollutants for which he

As the District Court pointed out, the Administrator has

already been ordered in Sierra Club v. Ruckelshaus, supra, to

promulgate significant deterioration regulations. Counsel for the

government, in their brief in this court, represented that the

Administrator had complied with this order, and “[t)herefore,

since the significant deterioration regulations have already been

published, the issue of any prior failure to promulgate them

is rendered moot.” Because, as is apparent from the regulations

and the Administrator's introductory statement accompanying

them (39 Fed. Reg. 42,510 (Dec. 5, 1974)), and as counsel

for the government acknowledged during oral argument, the

regulations that have been promulgated relate to only two of

the six identified pollutants, the case is not moot as to this

point. Whether there is a need for a second order against the

Administrator to do that which he has already been ordered

to do in the Sierra Club case is a question we need not reach,

because we find that this claim is not maintainable by plaintiffs

at this time.

Section 304(a) of the Amendments, 42 U.S.C. § 1857h—

2ta), gave te petean gent & Seem

A24

Subsection (b), 42 U.S.C. § 1857h—2(b), imposes the follow-

ing limitation upon this right to sue:

“No action may be commenced—

“(2) under subsection (a)(2) of this section prior to

60 days after the plaintiff has given notice of such action

to the Administrator, ... .”*

Plaintiffs failed to give the Administrator sixty days notice

prior to commencing suit, which the District Court held was

fatal to its jurisdiction under section 304. The court reasoned

that the purpose of the sixty-day notice requirement was to give

the Administrator time to assess and respond to difficult, multi-

count lawsuits, to deploy attorneys from Washington, if neces-

sary, and to arrange for the on-going process of regulatory

development and other substantive EPA concerns despite the

interruption caused by a pending lawsuit. The statute’s sixty-day

notice requirement would be nullified, said the court, if plaintiffs

were required to do nothing more than comply with Fed. R. Civ.

P. 12(a), which grants the United States, or an officer or em-

ployee thereof, sixty days in which to answer a complaint in

any civil suit. City of Highland Park v. Train, supra, 374

F.Supp. at 766-767. In accord with the District Court's i

are Pinkney v. Ohio Environmental Protection Agency, supra,

375 F.Supp. at 308, and West Penn Power Co. v. Train, supra,

378 F.Supp. at 944. Cf. Metropolitan Washington Coalition

for Clean Air Vv. District of Columbia, 373 F Supp. 1089, 1092

(D.D.C. 1974).* Contra, Riverside v. Ruckelshaus, 4 E.R.C.

1728 (C.D. Cal 1972).*

- : Co

i in Metropolitan Washington Coalition, although they

rd SpA. tm bd. their first

complaint, canna ene eiae same more

than sixty days after service of the first. This, as the court

held, in substance afforded the Administrator the sixty-day notice

A25

The legislative history of section 304 shows Congress’s deter-

mination that citizen participation in the enforcement of stand-

ards and regulations under the Clean Air Act of 1970 be estab-

lished. It also shows, however, that Congvess intended to provide

for citizens’ suits in a manner that would be least likely to clog

already burdened federal courts and most likely to trigger gov-

ernmental action which would alleviate any need for judicial

relief. It was in response to these concerns that the statutory

notice provisions were included in section 304. Congress's

intention would be frustrated if the statutory mandate of section

304(b) were ignored."

The language chosen by Congress makes it clear that the

Administrator is to be given notice in addition to that required

by Rule 12(a), Fed. R. Civ. P., which allows him sixty days

the ,

6. See S. Rep. No. 1196, 9ist 2d Sess., 36-39 (1970),

at 116 Rec. 32926-27 (1970); 116 Cong. Rec.

33102-03 (1970); ~~ ty 91-178, 9ist Cong., 2d Sess.,

U.S. Code Cong. & Admin. $374, 5388 (1970).

7. See Steinberg, Is the Citizen Suit a for

in An

A26

Alternatively, plaintiffs argue that other remedies are avail-

able. The first of these is statutory mandamus, 28 U.S.C.

§ 1361, which provides that “district courts shall have original

jurisdiction of any action in the nature of a mandamus to

compel an officer or employee of the United States or any agency

thereof to perform a duty owed to the plaintiff.”

Among the courts and legal scholars there have been

repeated efforts to ascertain the precise scope and limitations of

section 1361. For purposes of the present case, however, we

need not be concerned with defining the jurisdictional reach

of that section. However broad its scope, mandamus cannot be

invoked to require the District Court to order the Administrator

to promulgate significant deterioration regulations.

The traditional principles generally recognized as controlling

the issuance of a writ of mandamus were concisely stated by the

court in Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir.

1972), cert. denied, 411 U.S. 918 (1973), as follows:

“(1) a clear right in the plaintiff to the relief sought;

(2) a plainly defined and peremptory duty on the part of

the defendant to do the act in question; and (3) no other

adequate remedy available.”

8. Though it is undisputed that Congress intended 28 U.S.C.

§ 1361 to extend mandamus jurisdiction, formerly exercised only

by the District Court for the District of Columbia, to district courts

elsewhere, and thereby authorize suits against officials who fail. to

perform ministerial acts, there is some doubt concerning whether

the purview of the common law writ of mandamus was broadened

by the inclusion of the words “in the nature of” before the word

“mandamus” in section 1361, or whether Congress meant only to

make the writ available as it was at common law. Compare Burnett

v. Tolson, 474 F.2d 877, 880 (4th Cir. 1973), State Highway Com-

mission of Missouri v. Volpe, 479 F.2d 1099, 1104-1105 n. 6

(8th Cir. 1973), and Peoples v. United States Dep’t of Agriculture,

427 F.2d 561, 565 (D.C. Cir. 1970) with K. Davis, Administrative

Law Treatise § 23.09 (Supp. 1970), and Byse & Fiocca, Section

1361 on the Mandamus and Venue Act of 1962 and “Nonstatutory”

Judicial Review of Federal Administrative Action, 81 Harv. L. Rev.

308, 318-320 (1967). For cases adopting the traditional and more

prevalent view of section 1361 see Carter v. Seamans, 411 F.2d

767, 773 n. 11 (Sth Cir. 1969), cert. denied, 397 U.S. 941 (1970).

A27

See also United States ex rel. Girard Trust Co. v. Helvering,

301 U.S. 540, 543-544 (1937).

There is, as we have have seen, another remedy available,

that provided in section 304(a)(2) of the Clean Air Amend-

ments of 1970, which affords any person a direct remedy to

compel the Administrator to perform a non-discretionary duty.

Plaintiffs have not shown that the necessity of complying with

the notice provision rendered that remedy inadequate in

this case.

It is, accordingly, unnecessary for us to reach the question

of whether there exists that “plainly defined” duty (Lovallo v.

Froehlke, supra, 468 F.2d at 343), the performance of which

is positively commanded and so plainly prescribed as to be free

from doubt (United States v. Walker, 409 F.2d 477, 481

(9th Cir. 1969) ), that is necessary to warrant the issuance of a

writ of mandamus. We do note that the matter was doubtful

enough to cause the Administrator, whose expertise in inter-

preting the statute is entitled to weight, to conclude that the

duty did not exist and to cause the Supreme Court in the

Sierra Club case to divide equally on the question of whether

he was right. But cf. Roberts v. United States, 176 U.S. 221,

231 (1899).

Plaintiffs also argue that the District Court had jurisdiction

to grant the relief requested against the Administrator under

28 U.S.C. § 1331, the general federal question statute, and the

revised Administrative Procedure Act, 5 U.S.C. §§ 702-705.

Until the mandamus statute, 28 U.S.C. § 1361, was adopted

in 1962, the federal district courts did not have mandamus

jurisdiction, Covington & Cincinnati Bridge Co. v. Hager, 203

U.S. 109 (1906), except in the District of Columbia, Fagan v.

Schroeder, 284 F.2d 666, 668 (7th Cir. 1960), where it

existed through historical accident. S. Rep. No. 1992, 87th

Cong., 2d Sess. (1962), reprinted in 1962 U.S. Code Cong.

A28

& Admin. News 2784, et seq. Section 1361 was adopted to

remedy this deficiency and give mandamus jurisdiction to

district courts outside the District of Columbia. (/d.) In light of

this history, it might be questioned whether relief in the nature

of mandamus should be granted in an action in which

subject matter jurisdiction is based on section 1331.* Assuming,

however, that the equivalent of mandamus is available through

the court’s equity powers, the existence of another adequate

remedy would still preclude relief. This is not the kind of case

in which it would be appropriate for federal courts to “adjust

their remedies so as to grant the necessary relief’ for the

invasion of federally protected rights. Cf. Bell v. Hood, 327

U.S. 678, 684 (1946). There is no need for a new remedy,

because, as we have said, an adequate statutory remedy for

protecting rights of the kind asserted by plaintiffs is provided

by the very statute that creates the rights.

The revised Administrative Procedure Act, insofar as per-

tinent here, defines agency action which is subject to judicial

review under that act as “Agency action made reviewable by

statute and final agency action for which there is no other

adequate remedy in a court... .” 5 U.S.C. § 704. Here, as we

have held, there is the “other adequate remedy in a court,”

provided by section 304 of the Clean Air Amendments of

1970, and, while that statute makes the Administrator’s failure

to promulgate regulations reviewable, it does so subject to a

condition which has not been met here, compliance with the

notice requirement. The agency action here is “made reviewable

by statute” only if the condition is met.

9. The Supreme Court’s view once was that a mandatory injunc-

tion could not be used to achieve the same results as mandamus,

e.g., Smith v. Bourbon County, 127 U.S. 105 (1888), but later

decisions tend to suggest otherwise, Virginia Ry. v. System Feder-

ation, 300 U.S. 515, 551 (1937), cf. Panama Canal Co. v. Grace

Line, Inc., 356 U.S. 309 318 (1958), and a number of lower

peta yo er Be B, injunctions to perform the function

of mandamus. See H. Hart and H. Wechsler, The Federal Courts

and the Federal System, 1384-1385 & n. 6 (2d ed. 1973).

A29

In Natural Resources Defense Council, Inc. v. Train, 510

F.2d 692, 698-703 (D.C. Cir. 1975), the majority held that

under the Federal Water Pollution Control Act, the pertinent

provisions of which are substantially the same as those of the

Clean Air Act, judicial review could be obtained under the

Administrative Procedure Act, 5 U.S.C. § 704 and, apparently,

under 28 U.S.C. § 1331 also, and refers to the Clean Air Act and

its legislative history as a basis for its holding. The majority’s

opinion does not contain a discussion of the meaning of the

phrase “made reviewable by statute” in 5 U.S.C. § 704, but

bases its holding on the saving provision of the Federal Water

Pollution Control Act, 33 U.S.C. § 1365(e), which is sub-

stantially the same as the saving provision in section 304 of

the Clean Air Amendments of 1979, 42 U.S.C. § 1857h-2(e),

and the statements in the legislative history that other remedies

were not impaired by the act. The opinion does not give any

reasons for the court’s apparent holding that jurisdiction was

also conferred by 28 U.S.C. § 1331. Judge Robb’s dissent

argues that the 60-day notice requirement should control. (510

F.2d at 730-731.) With deference, we believe that the saving

provision, expressing the general intention of Congress not to

disturb existing rights to seek relief, does not have the affirma-

tive effect of removing conditions which existing law imposes

upon the exercise of those rights. We conclude, for the reasons

stated above, that the conditions imposed by existing law upon

the right to seek relief under either 28 U.S.C. § 1331 or 5

U.S.C. § 704 have not been met. We are not holding that if the

remedy provided by the statute were inadequate in the circum-

stances of a partcular case, other remedies would be unavail-

able.*®

10. The portion of this — dealing with the availability of

remedies other than the right of action provided by section 304 to

review the Administrator’s failure to signfiicant deteriora-

tion regulations has been all the judges of this

court'te regula sodive service, la. view of { possible inconsistency

between our holding and that of the Court of Appeals for the District

A30

The final additional basis for jurisdiction alleged in the com-

plaint, but not urged here, is the Declaratory Judgment Act, 28

U.S.C. §§ 2201, 2202. While the availability of another remedy

does not preclude declaratory relief, a court may properly

decline to assume jurisdiction in a declaratory action when the

other remedy would be more effective or appropriate (6A J.

Moore, Federal Practice 4 57.08{3], p. 57-43 (2d ed. 1974)),

as we find to be the case here.

Dispositions as to Counts I and Il

Since neither judicial review of the indirect source regula-

tions nor mandatory relief to compel the promulgation of

significant deterioration regulations for pollutants related to

automobiles is available in the proceedings before us, there is

no basis in the allegations of Counts I and II for plaintiffs’

demand for an injunction against further construction on the

highway expansion and the shopping center until their claims

concerning these regulations are finally resolved. We cannot

find at this stage a sufficient likelihood that regulations catitling

plaintiffs to such injunctive relief will ultimately be promulgated

to justify an award of injunctive relief. We therefore affirm the

dismissal of Counts I and II.

Count Ill: Absence of an Environmental Impact Statement_

Plaintiffs allege in Count III that portions of the expansion of

Lake-Cock Road are to be constructed with federal funds, and

that the United States Department of Transportation was there-

fore required by the National Environmental Policy Act of

1969 (“NEPA,” 42 U.S.C. §§ 4321, ef seq.) to prepare an

environmental impact statement concerning the expansion,

which has not been prepared. They seek an order requiring the

preparation of such a statement and an injunction prohibiting

of Columbia Circuit. No member of the court voted to rehear the

case in banc.

A31

the construction of the improvements on the road by Cook

County Department of Highways until the statement is prepared.

The motions to dismiss by the defendants under this count were

supported and opposed by affidavits and documents, and there-

fore were treated by the District Court, under the authority of

Rule 12(c), Fed. R. Civ. P., as motions for summary judgment.

The court granted the motions.

Plaintiffs now question the propriety of deciding the issues

under Count III by a summary judgment. They appear not

to have raised this question when they submitted matter outside

the pleadings in opposition to the motions, and did not suggest

in their papers in opposition in the District Court the existence

of any other evidence bearing on the issues. They had ample

Opportunity to present all material pertinent to the motion.

The court properly determined that there was no genuine issue

as to any material fact.

NEPA requires each federal agency, before taking any

“major Federal actions significantly affecting the quality of

the human environment,” to prepare a “detailed statement”

analyzing, among other things, “the environmental impact of

the proposed action.” (42 U.S.C. § 4332(2)(C).) “Actions”

include projects supported in whole or in part by federal

funding. (40 C.F.R. § 1500.5(a)(2) (1974).) Plaintiffs con-

tend that federal funding has been requested for a 2.47 mile

segment of the Lake-Cook Road, and that therefore the require-

ments of NEPA are applicable to the entire road expansion

project.

The documentary evidence submitted below indicates that

that the 2.47 mile segment of the road has received

“federal-aid secondary system” designation. Designation, how-

ever, is merely the first step in the procedure for obtaining

federal funds for highway improvement. The Federal-Aid

Highway Acts indicate that before federal funding is obtained

the project must be programmed by a state agency for federal

A32

funding and then approved by both the state highway depart-

ment and federal authorities. (23 U.S.C. §§ 103(c), (f), 105,

and 106.) It is undisputed that this designation was made long

before the enactment of NEPA, and there is accordingly no

basis for a contention that the road improvement project was

segmented to circumvent the Act. See River v. Richmond

Metropolitan Authority, 359 F.Supp. 611, 633-636 (E.D. Va.

1973), affd per curiam, 481 F.2d 1280 (4th Cir. 1973).

Plaintiffs submitted, in opposition to the motion, documents

which they contend prove that federal funds have been applied

for. They consist of a letter from the County Department of

Transportation transmitting a county resolution to have Federal

Aid Secondary Route (“FAS”) 122 (the approximately .5

mile segment between Pfingston and Waukegan Roads) pro-

grammed for federal funding; the resolution itself; the Illinois

Department’s letter to the County Department approving the

resolution; a similar set of letters and a resolution concerning

FAS 1013 (the approximately 2 mile segment between

Sanders and Pfingston Roads); and a document entitled

“Draft/Combined Corridor and Design Environment Statement/

Administrative Action for Federal Aid Secondary Routes

1013 & 122,” which is not signed and has “Preliminary

11/16/73” written across it. These documents give no indica-

tion of federal involvement up to that point in the approval

process. Defendants submitted affidavits showing that there has

been no programming by the State of Illinois for federal

funding of the Lake-Cook Road improvement project, and that

no application for federal funds has been made. Counsel for

the Cook County Department of Highways represented at oral

argument that these facts were unchanged.

Thus the documents relied on by plaintiffs show nothing more

than a possibility that federal funds might be applied for. The

affidavits establish that no federal funds have in fact been ap-

plied for.

A33

One case sustained a preliminary injunction against construc-

tion of a highway project for failure to comply with a federal

relocation statute,’ holding that the project for a part of the

federal-aid primary system became a federal-aid highway project

for purposes of that statute when it received location approval’?

prior to any application for federal funds. La Raza Unida v.

Volpe, 488 F.2d 559 (9th Cir. 1973), cert. denied, 417 U.S.

968 (1974). That case was not decided under NEPA, which

applies to proposed major federal actions and not to a federal-

aid secondary designation that took place long before NEPA

was adopted or to possible federal funding that is not proposed

at present. And, as the district court in River v. Richmond

Metropolitan Authority, supra, stated: “Notwithstanding the

fact that La Raza Unida declared a highway project to be fed-

eral early in the planning process, it most assuredly did not hold

that a project could be federal where no federal participation

had ever taken place.” 359 F.Supp. at 634. Possible future fed-

eral funding is all that the plaintiffs in the case at bar have

shown.

The Lake-Cook Road improvement appears from the sum-

mary judgment papers to be a state project on which no federal

action is proposed, and therefore, NEPA’s requirement of an

environmental impact statement does not apply to the project.

See Citizens nt Balanced Environment and Transportation, Inc.

a Sadie athe te tae nt eee ~4

gran court unnecessary

f reach the ques tion of whether defendants also violated NEPA,

plaintiffs. La Raza Unida v. Volpe, 337

F.Supp. "221, 234 (N . Cal. 1971). The Court of Appeals did not

refer to NEPA.

op A wees alg ee Bog alegre Be Appr ng

stage 2 pad pint, which the route is specifically estab-

lished within a corridor which has previously been defined. (/d. at

223-224.) Location a ree S place unless the state

approval

department requests it and ——

aye £- the project. (23 (23 CER. §§ 790.9(e) ( (1), 30208)

Hagan ) Nothing comparable to

the present case.

A34

v. Volpe, 503 F.2d 601 (2d Cir. 1974); Civic Improvement

Committee v. Volpe, 459 F.2d 957 (4th Cir. 1972); cf. Brad-

ford Township Vv. Illinois State Toll Highway Authority, 463

F.2d 537, 540 (7th Cir. 1972), cert. denied, 409 U.S. 1047

(1972).

Count IV: The Equal Protection Challenge

to the Zoning Ordinance

Plaintiffs allege in amended Count IV that the Village of

Northbrook and its trustees have deprived them of the equal

protection of the laws as guaranteed by the Fourteenth Amend-

ment and seek a judgment declaring invalid Northbrook’s zon-

ing approval of the proposed shopping center complex and an

injunction “barring future zoning approval until Northbrook

demonstrates that its residents have been subjected to similar

environmental assaults.” Jurisdiction is purportedly predicated

upon 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 2201

(declaratory judgment remedy) ; and 42 U.S.C. § 1983 (depriva-

tion of constitutional or federal statutory rights under color of

state law), and its jurisdictional correlative, 28 U.S.C. § 1343.

Plaintiffs allege in substance that, upon information and be-

lief, Northbrook and its trustees have “aggressively protected”

its residential areas from intrusion by massive commercial de-

velopments such as the proposed shopping center complex; that

their action in giving zoning approval to the proposed shopping

center complex will cause the eventual subjection of plaintiffs

to “vast increase in noise and air pollution as well as aesthetic

destruction of the quiet residential character of their com-

munity;” and that by exposing plaintiffs to these environmental

hazards, while protecting Northbrook residents from intrusion

of similar developments, Northbrook has discriminated against

them in violation of the Fourteenth Amendment. The amend-

ment to the complaint, in which plaintiffs joined the trustees of

the Village of Northbrook as additional defendants, did not

A35

specify any relief sought against them. The village and the

trustees moved to dismiss Count IV of the complaint for want

of jurisdiction as to it under 42 U.S.C. § 1983 and for failure to

state a claim for which relief could be granted.

As the District Court correctly held (City of Highland Park

Vv. Train, supra, 374 F.Supp. at 773), there is no jurisdiction

under 42 U.S.C. § 1983 over the claim against the village.

City of Kenosha v. Bruno, 412 U.S. 507, 513 (1973). Assum-

ing the existence of jurisdictional amount, we have jurisdiction

against the village on the claim based upon the Fourteenth

Amendment under 28 U.S.C. § 1331. The absence of any spe-

cific request for relief against the trustees may have justified

dismissal as to them, but in any event the complaint, as

amended, states no claim on which relief could be granted

against either the trustees or the village.

A zoning ordinance is clothed with every presumption of

validity. City of Ann Arbor, Mich. v. Northwest Park Constr.

Corp., 280 F.2d 212, 223 (6th Cir. 1960). Derived from the

states’ police power, the legislative authority which grants

municipalities the power to adopt and enforce zoning ordi-

nances and regulations is not to be narrowly confined. Village

of Belle Terre v. Boraas, 416 U.S. 1, 5-8 (1974); cf. Berman

v. Parker, 348 U.S. 26, 32-33 (1954). Unless it is based upon

a suspect classification or impinges upon a fundamental right

(see Village of Belle Terre v. Boraas, supra, 416 U.S. at 6,

7), which is not true in the case at bar, zoning legislation may

be held unconstitutional only if it is shown to bear no possible

relationship to the state’s interest in securing the health, safety,

morals, or general welfare of the public and is, therefore, mani-

festly unreasonable and arbitrary. E.g., Village of Euclid v.

Ambler Realty Co., 272 U.S. 365, 395 (1926) ;Gorieb v. Fox,

274 U.S. 603, 610 (1927); Aquino v. Trobiner, 298 F.2d

674, 677 (D.C. Cir. 1961). Thus the scope of judicial review

is limited.

A36

It is well established that “[ijJn the area of economics and

social welfare, a States does not violate the Equal Protection

Clause merely because the classifications made by its law are

imperfect. If the classification has some ‘reasonable basis,’

it does not offend the Constitution simply because . . . ‘in prac-

tice it results in some inequality.’” Dandridge v. Williams, 397

U.S. 471, 485 (1960); see Village of Belle Terre v. Boraas,

supra, 416 U.S. at 8; Sinclair Refining Co. v. City of Chicago,

178 F.2d 214, 217 (7th Cir. 1950). As the Supreme Court

observed in Village of Euclid v. Ambler Realty Co., supra:

“(Llaws may .. . find their justification in the fact that, in some

fields, the bad fades into the good by such insensible degrees

that the two are not capable of being readily distinguished and

separated in terms of legislation.” (272 U.S. at 389.)

Inherent in all zoning legislation are statutory distinctions

which give rise to claims of disparity of treatment. Inevitably

areas zoned for nonresidential uses will touch areas zoned for

residential uses, and the burden of the zoning always falls most

heavily on the residents adjacent to the boundary. This is

essentially all that plaintiffs have alleged here, except that they

have framed their grievance in the rhetoric of equal protection.

Plaintiff residents of Highland Park and Glenbrook Country-

side allege no classification other than the distinction between

residents in close proximity to the proposed shopping center

and residents who live farther away. Such a classification, in-

herent in all zoning, is not within the purview of the Fourteenth

Amendment. Cf. L’Hote v. City of New. Orleans, 177 U.S. 587,

597 (1899). “Some must suffer by the establishment of any

territorial boundaries. . . . If these limits hurt the [appellants],

other limits would hurt others.”(Jd.) So long as such legisla-

tion applies equally to all persons similarly situated in a given

locale, there can be no violation of the Equal Protection Clause.

Cf. Caskey Baking Co. v. Virginia, 313 U.S. 117, 121 (1941);

United States v. Holmes, 387 F.2d 781, 785 (7th Cir. 1967),

cert. denied, 391 U.S. 936 (1968).

A37

Zoning is not rendered unconstitutional by the fact that

any direct benefit the plaintiffs may receive from it is less than

the possible burdens it may impose upon them. Plaintiffs having

failed in Count IV to state a claim upon which relief can be

granted, the District Court’s dismissal of that count is affirmed.

The Petition for Review

On January 6, 1975, plaintiffs filed in this court a petition

for review, No. 75-1006, seeking review of the significant

deterioration regulations promulgated by the Administrator on

December 5, 1974. That petition which states as petitioners’

sole grievance the Administrator’s failure to promulgate signif-

icant deterioration regulations with respect to carbon monoxide

and other automobile related pollutants was consolidated with

No. 74-1271 on the representation by petitioners that the same

substantive issues were involve in the two cases, the court

viewing the petition for review as an attempt by petitioners to

“safeguard their jurisdictional grounds.” (Order of February

11, 1975, denying motion to reconsider consolidation. )

No brief has been submitted in support of the petition for

review. We therefore do not have the benefit of petitioners’

views as to the appropriateness of a petition for review to

compel the Administrator to act. We think, however, that the

function of a petition for review is to invoke a review for

correctness by the Court of Appeals of regulations adopted

by the Administrator and not to compel the Administrator to

act when he has failed to act. Petitioners, in their petition for

review, do not challenge the significant deterioration regulations

on particulate matter and sulfur dioxide which the Admin-

istrator has promulgated. Their petition rather complains that

the Administrator “continues in his failure” to promulgate

regulations relating to carbon monoxide and other motor vehicle

related pollutants. The appropriate procedure for compelling

the Administration to act is that provided in section

A38

304(a), supra, which expressly provides for an action in the

district court “against the Administrator when there is alleged

a failure of the Administrator to perform any act or duty under

this Act which is not discretionary with the Administrator.”

Plaintiffs recognized this when they brought their action under

section 304(a), but they failed to give statutory notice that

would have made their action viable. The petition for review

is dismissed.

AFFIRMED in No. 74-1271; Petition for Réview DisMissED

in No. 75-1006.

A39

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

July 24, 1975

Before

Hon WALTER J. CUMMINGS, Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. Puitie W. Tone, Circuit Judge

‘ ,

Tue Crry or HIGHLAND Park, mr ete

ILLINOIS, etc., et al. :

peri , for the Northern Dis-

Plaintiffs-Appellants, | trict of Illinois, East-

No. 74-1271 vs. ,

No. 73 C 3027

RUSSELL E. TRAIN, etc., et al., Bernard M. Decker,

Defendants-A ppellees. ' Judge.

No. 75-1006 :

Tue CiTy oF HIGHLAND PARK,

ILLINOIS, etc., et al.,

Petitioners, Petition for Review of

an Order of the En-

vironmental Protec-

vs. tion Agency.

RUSSELL E. TRAM, etc., et al.,

Respondents. |

A40

ORDER

The opinion filed June 10, 1975 is revised and corrected in

the respects shown in the revised and corrected opinion filed

this date.

The petition for rehearing is denied.

A4l

OPINION MODIFIED BY JUDGE TONE

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

July 24, 1975

Before

Hon WALTER J. CUMMINGS, Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. Puitip W. TONE, Circuit Judge

Tue Crry or HIGHLAND Park, _) “Ppeal from the United

mreecraeas | "Bas Bet Cou

Plaintiffs-Appellants, | trict of Mlinois, East-

No. 74-1271 vs. > era Division

No. 73 C 3027

RUSSELL E. TRAIN, etc., et al.,

Bernard M. Decker,

Defendants-A ppellees. : Judge.

THe Ciry oF HIGHLAND PARK, )

ILLINOIS, etc., et al.,

Petitioners, | Petition for Review of

. an Order of the En-

No. 75-1006 vs. vironmental Protec-

tion Agency.

RUuSSELL E. TRAIN, etc., et al.,

Respondents. }

A42

These causes came on to be heard on the transcript of the

record from the United States District Court for the Northern

District of Illinois, Eastern Division, and the Environmental

Protection Agency, and were argued by counsel. On June 10,

1975 an opinion was entered by this Court.

On consideration whereof, it is ordered and adjudged by this

Court that the judgment of the said District Court in appeal No.

74-1271 be and the same is hereby AFFIRMED, with costs, and

the Petition for Review in appeal No. 75-1006 be and the same

is hereby DISMISSED, in accordance with the modified opinion

of this Court filed this date.

A43

OPINION BY JUDGE TONE

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

June 10, 1975

Before

Hon WALTER J. CuMMINGS, Circuit Judge

Hon. ROBERT A. SPRECHER, Circuit Judge

Hon. PHitie W. TONE, Circuit Judge

THE Crry oF HIGHLAND PARK, ny at

ILLINOIS, etc., et al.,

for the Northern Dis-

Plaintiffs-Appellants, | trict of Illinois, East-

No. 74-1271 vs. >. ae

No. 73 C 3027

RUSSELL E. TRAIN, etc., et al.

ec ; Bernard M. Decker,

Defendants-A ppellees. ; - Judge. -

THE City OF HIGHLAND PARK,

ILLINOIS, etc., et al.,

Petitioners, | Petition for Review of

an Order of the En-

No. 75-1006 vs. - vironmental Protec-

tion Agency.

RUSSELL E. TRAM, etc., et al.,

Respondents. |

A44

These causes came on to be heard on the transcript of the

record from the United States District Court for the Northern

Protection Agency, and were argued by counsel.

On consideration whereof, it is ordered and adjudged by

this court that the judgment of the said District Court in appeal

No. 74-1271 be and the same is hereby AFFIRMED, with costs,

and the Petition for Review in appeal No. 75-1006 be and the

same is hereby DisMISSED, in accordance with the opinion of this

court filed this day.

A45

IN THE UNITED STATES CouRT OF APPEALS

For the Seventh Circuit

No. 74-1271

THE Ciry OF HIGHLAND PARK, ILLINOIS, ETC., ET AL.,

Plaintiffs-A ppellants,

Vv.

RUuSSELL E. TRAIN, BTC., ET AL.,

Defendants-A ppellees.

Appeal from the United States District Court for the Northern

ae 6 ee ee 73 C 3027

Bernard M. Decker, Judge.

No. 75-1006

THE City OF HIGHLAND Park, ILLINOIS, ETC., ET AL.,

Petitioners,

Vv.

RUssELL E. Train, as Administrator of the United States

Environmental Protection Agency, and UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

Petition for Review of an Order of the

Argued Februrary 21, 1975—-Decided June 10, 1975

Before CUMMINGS, SPRECHER and TONE, Circuit Judges.

Tonge, Circuit Judge. In the principal case before us in

these consolidated proceedings, No. 74-1271, plaintiffs sue to

block the construction of a shopping center and the extension

A46

and widening of the road along which the shopping center is to

be built, relying upon the Clean Air Amendments of 1970, the

National Environmental Protection Act, and the Equal Protec-

tion Clause of the Fourteenth Amendment. They seek to compel

the Administrator of the Environmental Protection Agency to

promulgate “indirect source” and “significant deterioration”

regulations which they hope would preclude the construction

of the shopping center and the road expansion (Counts I and

II) and to enjoin the road expansion until the Department of

Transportation has filed an environmental impact statement

pursuant to the National Environmental Protection Act (Count

Ill). Plaintiffs also allege that the Village of Northbrook has

denied them equal protection by the adoption of a zoning ordi-

nance which permits the construction of the shopping center

(Count IV).

The District Court dismissed the claims under the Clean Air

Amendments for failure to comply with the 60-day notice

requirement of section 304, 42 U.S.C. § 1857h-2, for failure

to state a claim on which relief can be granted, and on the

ground that some of the relief requested was already the subject

of orders issued by other federal courts. Finding it undisputed

that there was no federal involvement in the road expansion

project, the court granted summary judgment on the claim

that an environmental impact statement should have been filed.

The equal protection claim was also held to be without merif.

The court entered an order dismissing the action, City of High-

land Park v. Train, 374 F.Supp. 758 (N.D. Ill. 1974), from

which plaintiffs appeal and which we affirm.

Plaintiffs are two municipalities adjacent to the site of the

proposed shopping center, a non-profit corporation dedicated

to protecting the environment in the area, and various indi-

viduals who reside near the site. The defendants are the Ad-

ministrator of the Environmental Protection Agency, the agency

itself, the Secretary of the Department of Transportation, the

department itself, the Department of Highways of Cook County,

A47

Illinois, the developers of the shopping center, proposed tenants

of the shopping center, the Village of Northbrook, in which the

shopping center will be located, and the trustees of the village.

The right of way of Lake-Cook Road extends from Lake

Michigan along the entire boundary between Lake and Cook

Counties to the western end of the boundary and continues on

west to the Fox River. Between Milwaukee Avenue and Rand

Road, the road is not completed. Where it is completed, it is, for

the most part, two lanes wide. In 1967 the Cook County High-

way Department initiated plans to expand the completed por-

tions of the road to four lanes and to construct a four-lane

extension on the right-of-way where no actual roadway presently

exists.

In January, 1973, certain of the defendants anounced a plan

for the construction of a shopping center on the south side of

Lake-Cook Road between Skokie Highway and Waukegan

Road. The shopping center, according to the complaint, will

occupy one million square feet, have a parking lot accommodat-

ing 5,000 cars, and generate 28,400 vehicle trips per day.

Ninety percent or more of this traffic will be carried by Lake-

Cook Road, the only through-street which provides access to

the shopping center. Plaintiffs allege that this traffic “will over-

whelm even the proposed four lane expanded roadway,” and

cause “intolerable” congestion at the intersections of Lake-Cook

Road and Skokie Highway and Waukegan Road. As a result,

residents of the area will be subjected to substantial “noise

and discomfort in the use of their homes and in the use of the

streets in their community” and will be exposed to increases in

the concentration of carbon monoxide in the ambient air by

more than 66 percent over existing levels.

The Clean Air Amendments

and Their Implementation

To explain plaintiffs’ claims under the Clean Air Amend-

ments of 1970, it is necessary to begin by summarizing pertinent

parts of that legislation and its implementation by actions of the

A48

Administrator and the states and by certain court decisions.

The background and a more complete history of the amend-

ments and their implementation to date appear in Mr. Justice

Rehnquist's opinion for the Supreme Court in Train v. Natural

Resources Defense Council, Inc.. 43 U.S.L.W. 4467 (US.

April 16, 1975).

When the states did not act to fulfill their “primary responsi-

bility” for prevention of air pollution under earlier federal clean

air legislation. “Congress reacted by taking a Stick to the states

in the form of the Clean Air Amendments of 1970, Pub. L.

91-604, 84 Stat. 1676, enacted on December 31 of that year.”

Train V. Natural Resources Defense Council, Inc., supra. 43

U.S.L.W. at 4468. The 1970 Amendments established a pro-

gram to control air pollution to be carried out by the federal

government and the states. The parts of the Amendments

pertinent here may be summarized as follows:

The Administrator was required, before specified dates, to

publish a list of air pollutants and issue “air quality criteria”

containing information about each listed pollutant and its effects

on the air. (Section 108, 42 U.S.C. § 1857c—3.) He was also

required to establish national “ambient air quality standards”

for each air pollutant for which air quality criteria were issued.

(Section 109, 52 U.S.C. § 1857c—4.) The states have primary

authority to establish “implementation plans” to achieve these

standards, but these plans are subject to review by the Admihi-

strator. (Section 110, 42 U.S.C. § 1857c—S.)

Two sets of standards were to be prescribed by the Admini-

strator, “primary standards,” the “attainment and maintenance

of which, in the judgment of the Administrator, based on [air

quality] criteria and allowing an adequate margin of safety, are

requisite to protect the public health;” and “secondary stand-

ards,” which “shall specify a level of air quality the attainment

and maintenance of which, in the judgment of the Administrator,

based on such criteria, is requisite to protect the public welfare

from any known or anticipated adverse effects associated with

A49

the presence of such air pollutants in the ambient air.” (Section

109(b), 42 U.S.C. § 1857c—4(b).) The Administrator pre-

scribed these standards within the time allowed him by the Act.

Within nine months after the Administrtor’s promulgation

of the national standards, each state was to submit to him a

plan providing for the “implementation, maintenance, and en-

forcement” of the standards. (Section 110(a)(1), 42 U.S.C.

§ 1857c—5(a) (1). Each state plan was required to provide for

the attainment of the national primary standards “as expedi-

tiously as practicable” and not later than three years after the

date the Administrator approved the plan. (Section 110(a) (2)

(A)(i), 42 U.S.C. § 1857c-—5(a)(2)(A)(i.) The national

secondary standards were to be met within a “reasonable time”

to be specified in the plan. (Section 110(a)(2)(A) (ii), 42

U.S.C. § 1857c-—5S(a)(2)(A)(ii).) Each state plan was to

include “emission limitations, schedules, and timetables for com-

pliance with such limitations, and such other measures as may

be necessary to insure attainment and maintenance of such pri-

mary or secondary standard, including, but not limited to, land-

use and transportation controls.” (Section 110(a)(2)(B), 42

US.C. § 1857c—5(a)(2)(B).) Other prerequisites to ap-

proval by the Administrator are set forth in the Act. (Section

110(a)(2)(C) through (H), 42 U.S.C. § 1857~-—5(a)(2)(C)

through (H).)

Within four months after the date a state plan was required

to be submitted, the Administrator was required to review the

plan to determine whether it satisfied the statutory requirements

and to approve or disapprove the plan or each portion thereof.

Section 110(a), 42 U.S.C. § 1857c—5(a). If the Administrator

determined that a state’s plan or any portion thereof did not

satisfy the statutory requirements, he was to disapprove the

plan, or the offending portion thereof, and, within six months

after the date the plan was required to be submitted, promulgate

his own implementation plan or portion thereof for that state.

(Section 110(c)(1), 42 U.S.C. § 1857c—S(c)(1).)

ASO

Significant Deterioration Regulations

During the period he was reviewing state plans, the Ad-

ministrator questioned his authority to require those plans to

protect against “significant deterioration” of air quality in areas

in which the air was cleaner than required by the national

in pollution violative of the national standards. He took the

position that he would not demand such provisions in state

plans. See Sierra Club v. Ruckelshaus, 344 F Supp. 253, 254

(D.D.C. 1972), affd per curiam, 4 E.R.C. 1815 (D.C.Cir.

1972), aff'd by an equally divided Court sub nom. Fri v. Sierra

Club, 412 U.S. 541 (1973). In the Sierra Club case the court

held, on motion for preliminary injunction, that the Admini-

strator had a non-discretionary duty to protect the air quality

from significant deterioration and issued a preliminary injunc-

pollution levels of clean air to rise to the secondary standard

level of pollution.” 344 F.Supp. at 256.’ The court ordered the

Administrator to promulgate proposed significant deterioration

regulations within six months as to any state plan which per-

mitted or failed to take measures sufficient to prevent significant

deterioration. 2 E.L.R. 20262, 20263.

As a result of that decision the Administrator again reviewed

all state implementation plans and disapproved them to the éX-

tent that they failed to prevent significant deterioration of air

quality. (40 C.F.R. § 52.21 (1974), 37 Fed. Reg. 23,836

(Nov. 9, 1972).) One of the plans affected was that of Illinois,

which had been submitted to the Administrator on January 31,

1972, and given partial approval on May 26, 1972. (40 C.F.R.

§ 52.722 (1974), 37 Fed. Reg. 10,842 (May 31, 1972).) In

response to his duty under the court’s order in the Sierra Club

1. See also Natural Resources Defense Council, Inc. v. Train,

489 F.2d 390, 408 (Sth Cir. 1974), rev'd on other grounds, supra

43 U.S.L.W. 4467; Exxon Corp. v. City of New York, 372 F Supp.

335, 339 (SDNY. 1974). -

AS1

case the Administrator proposed (38 Fed. Reg. 18,986 (July

16, 1973)) and reproposed (39 Fed. Reg. 31,000 (Aug. 27,

1974)) rules on the prevention of significant air quality de-

terioration. Eventually he promulgated regulations for two of

the six air pollutants for which he had earlier promulgated

national ambient air quality standards under his statutory duty.”

(39 Fed. Reg. 42,510 (Dec. 5, 1974).) These regulations are

intended to prevent significant deterioration in the quality of

air for two pollutants, particulate matter and sulfur dioxide,

by limiting increases in the concentrations of those pollutants

in areas where the present level of pollution is less than re-

quired by the national ambient air quality standards. This is

to be accomplished by dividing those areas in which the level

of pollution does not presently exceed the national ambient air

quality standards into three classes in which increases in con-

centration of the two pollutants are limited by different amounts.

The Administrator originally classified all areas, but the states,

after a public hearing and subject to other requirements, may

submit to the Administrator proposals for reclassification of areas.

No final regulations have been promulgated for the other four

pollutants as of yet. The Administrator, therefore, has not yet

complied with the Sierra Club order.

Indirect Source Regulations

When the Administrator gave partial approval to the Illinois

implementation plan on May 26, 1972, he also granted to

Illinois, as he did to a number of other states, extensions until

February 15, 1973, to submit the transportation portion of its

2. The six pollutants originally identified were sulfur dioxide,

matter, carbon monoxide, oxidants,

ebens, and meen Gueee: £55 R. §§ 50.4—S50.11 (i974).)

The original proposed rules referred to in the text

A5S2

implementation plan. Several other states were given until

mid-1977 to attain the national primary standards. (37 Fed.

Reg. 10,842 (May 31, 1972).) The Court of Appeals for

the District of Columbia, on a petition for review, held that

this extension was not authorized by the Act, and also found

that the record did not show whether the Administrator had

conducted a state-by-state determination on the efficacy of the

state plans to provide for the maintenance of the primary and

secondary standards beyond May 31, 1975. National Resources

Defense Council, Inc. v. EPA, 475 F.2d 968, 970, 971-972

(D.C. Cir. 1973). The court established a new time schedule

under which the Administrator was to review the maintenance

provisions of the state plans and disapprove those which he de-

termined did not contain sufficient measures for maintenance of

the primary standard. (Id. at 972.) In this re-examination, the

Administrator found that none of the state plans, including that

of Illinois, contained adequate provisions for insuring the

maintenance of national standards, but granted the states an-

other opportunity to develop adequate programs. (40 C.F.R.

§ 52.22(a) (1974), 38 Fed. Reg. 6280 (March 8, 1973).)

The Administrator, pursuant to the order of the Court of

Appeals for the District of Columbia in Natural Resources De-

fense Council, Inc. vy. EPA, then promulgated regulations to

insure the maintenance of national standards by requiring state

implementation plans to contain procedures for review of “any

new stationary source or modification that might “interfere

with attainment or maintenance of a standard either directly

because of emissions from it, or indirectly, because of emissions

resulting from mobile source activities associated with it.” (40

C.F.R. § 51.18 (1974), 38 Fed. Reg. 15,834, 15,836 (June

18, 1973).) He suggested guidelines to assist the states in

complying with the requirements of section 51.18. (See Ap-

pendix O to 40 C.F.R. § 51.18.)

The Administrator was also required by National Resources

Defense Council, Inc. v. EPA, to promulgate indirect source

A53

‘review regulations if states either failed to submit such regu-

lations on their own or submitted inadequate regulations. (475

F.2d at 971.) In response to that requirement the Administrator

proposed regulations (38 Fed. Reg. 29,893 (Oct. 30, 1973)),

and, after public hearing in 43 states, promulgated them. (40

C.F.R. § 52.22 (1974), 39 Fed. Reg. 7270 (Feb. 25, 1974).)

He also determined that since the plans of most states; including

Illinois, contained inadequate provisions for review of indirect

sources as required by section 51.18, the provisions of section

52.22(b) would be incorporated by reference and made a part

of each of those plans. (See, e.g., 40 C.F.R. § 52.736 (1974).)

An indirect source is defined by the regulation as “a facility,

building, structure, or installation which attracts or may attract

mobile source activities that results in emissions or a pollutant

for which there is a national standard,” for example a “[p]ark-

ing facility.” (40 C.F.R. § 52.22(b) (i) (1974).) The regula-

tion applies to any indirect source on which construction or

modification is to commence after December 31, 1974. The

Administrator later amended the indirect source regulations in

respects not material here. (39 Fed. Reg. 25,292 (July 9,

1974).)

The Motion to Dismiss the Appeal

A motion by the defendants who are the developers of the

shopping center to dismiss the appeal in No. 74-1271 against

them and a prospective tenant was taken under advisement

with the case. These defendants argue that a 1974 amendment

to the Clean Air Act (42 U.S.C. §§ 1857c-5(c)(2)(C),

(D)) and the promulgation of indirect source regulations moot

Count I, the only part of the case concerning them, and that

no case or controversy between them and the plaintiffs is raised

in the plaintiffs’ briefs because of failure to comply with Rule

28(a)(5), Fed. R. App. P., which requires a short state-

ment of the relief sought. The mootness ground is without

merit, because plaintiffs seek in Count I not only promulgation

A5S4

of indirect source regulations, but also an injunction against

construction of the shopping center until proper regulations have

been promulgated. Since the developer defendants and the

tenant defendants were necessary parties in a claim seeking such

an injunction, the case is not moot as to them. The failure to

state the relief sought against these defendants is not a basis

for dismissal of the appeal as to them in the circumstances of

this case. We therefore deny the motion to dismiss and turn to

the merits of the appeal. ‘

Counts I and Il: The Regulations

In Count I of their complaint plaintiffs allege that the

Administrator has been in violation of the provisions of the

Act requiring him to issue two kinds of regulations: (a) signif-

icant deterioration regulations, preventing the significant deter-

ioration of air quality in areas with air cleaner than national

standards (as stated above, such regulations as to two of the

six pollutants in question have now been promulgated); and

(b) indirect source regulations, preventing violations of the

national air quality standards by indirect sources (as stated

above, these regulations have now been promulgated). They

seek an order requiring him to promulgate those regulations

and to halt further construction of the shopping center until

its plans have been reviewed by the Administrator under both

sets of regulations he is required to promulgate. In Count II

the plaintiffs reallege that the Administrator has been in vio-

lation of his statutory duty to promulgate significant deteriora-

tion and indirect source regulations. In this count, however,

they seek to halt construction of the Lake-Cook Road expan-

sion and improvement project until its plans have been reviewed

by the Administrator under both sets of regulations. To facili-

tate understanding of our analysis, we will divide our discus-

sion of plaintiffs’ claims by considering separately plaintiffs’

rights to obtain promulgation of the two sets of regulations

ASS

rather than by considering separately Counts I and II of their

complaint.

Review of the Indirect Source Regulations

The Administrator having promulgated indirect source regu-

lations after the complaint was filed, plaintiffs’ grievance now

is that those regulations exempt indirect sources on which con-

struction was commenced before January 1, 1975, as it was

on the shopping center involved in this case,

Section 307(b) (1) of the Amendments, 42 U.S.C. §1857h—

5b) (1), provides in pertinent part:

“A petition for review of the Administrator’s actiog in. . .

promulgating any implementation plan under section

1857c—5 of this title [section 110 of the Amendments]...

may be filed only in the United States Court of Appeals

for the appropriate circuit.”

The indirect source regulations are subject to this section. Enti-

tled “Review of Indirect Sources” (39 Fed. Reg. 7270-7285 -

(Feb. 25,'1974)), they purport to be promulgated pursuant

to section 110, 42 U.S.C. § 1857c—S. It is so stated in the

Administrator’s comments in the first part of the regulations.

Furthermore, the regulations contain the subtitle, “Approval and

Promulgation of Implementation Plans,” which is the statutory

language used in section 307. The regulations set out the nation-

al standards for regulation of indirect sources, disapprove vari-

ous parts of state implementation plans, and incorporate the

federal standards into those plans. For example, Subpart O

deals with Ilinois and provides:

“Subpart O—Tllinois

“25. Subpart O is amended by adding § 52.736 as fol-

lows:

“§ 52.736 Review of new sources and modifications.

“(a) The requirements of § 51.18 of this chapter are not

met because the State failed to submit a plan for review

of new or modified indirect sources.

A56

“(b) Regulation for review of new or modified indirect

sources. The provisions of § 52.22(b) of this chapter are

hereby incorporated by reference and made a part of the

applicable implementation plan for the State of Illinois.”

39 Fed. Reg. at 7281.

Since the regulations incorporate the federal standards into the

state plans, the Administrator is in effect promulgating imple-

mentation plans where state plans are deficient, in accordance

with section 110(c) (42 U.S.C. § 1857c—S), which is to be

reviewed only under section 307(b)(1) (42 U.S.C. § 1857h—

5(b)(1)).

Other courts of appeals have held under analogous circum-

stances that a petition for review under section 307(b)(1) is

the exclusive method of review. In Getty Oil Co. v. Ruckels

haus, 467 F.2d 349, 355-356 (3d Cir. 1972), cert. denied, 409

U.S. 1125 (1973), the court refused to permit, in an action

filed in the district court, what amounted to an attack on the

compliance date in regulation in the Delaware plan limiting the

amount of sulfur content in burning fuel, holding that the

sole remedy was a petition for review to the court of appeals

under section 307(b)(1). Also supporting the rule that a peti-

tion under that section is the sole remedy for reviewing the

promulgation or implementation of clean air plans and regu-

lations are Plan for Arcadia, Inc. v. Anita Associates, 501 F.2d

390, 392 (9th Cir. 1974), cert. denied, ... U.S. —.. 95 &.Ct.

517 (1974); and Anaconda Co. v. Ruckelshaus, 482 F.2d

1301, 1304 (10th Cir. 1973). One district court decision is

squarely in point, Pinkney v, Ohio Environmental Protection

Agency, 375 F.Supp. 305, 309 (N.D. Ohio 1974), in which the

alternative ground for dismissal of a challenge to the 180-day

delay in the effective date of the indirect source regulations

was that the exclusive remedy was a petition for review under

section 307(b)(1). Similarly, in Delaware Citizens for Clean

Air, Inc. Vv. Stauffer Chemical Co., 367 F.Supp. 1040, 1046

(D. Del. 1973), the court refused, on the same ground, to

AS7

entertain an action to challenge a state-granted variance from

compliance with a sulfur dioxide emission regulation, which the

Administrator had treated as a deferral of compliance amount-

ing to a revision of the state implementation plan and approved

as such. See West Penn Power Co. v. Train, 378 F.Supp. 941,

944-945 (W.D. Pa. 1974); cf. Luneburg and Roselle, Judicial

Review Under the Clean Air Amendments of 1970, 15 B.C.

Ind. & Com. L. Rev. 667, 691 n. 145 (1974).

Plaintiffs attempt to characterize the regulations’ exemption

of any facility on which construction was started before Janu-

ary 1, 1975 as a failure to promulgate regulations with respect

to such facilities. We think, however, that a provision defining

the scope of regulations and their effective date is as much a

part of the regulations as the substantive parts.

The explanations contained in the regulations for the exemp-

tion clause are “recent firm congressional guidelines contained

in amendments to the Clean Air Act,” compelling administra-

tive reasons, and the need to minimize disruptive effects on

industry. (39 Fed. Reg. at 7272-7273.) A review of the suffi-

ciency of these reasons requires an examination of the admin-

istrative record, which is not before us now but would be if

this were a petition for review.

The exemption provision is an integral part of the regulations

and, like any other part, must be reviewed in a petition for re-

view. It cannot be reviewed by an action filed in the district

court.

Plaintiffs have in fact filed a separate petition for review of

the indirect source regulations in this court (No. 74-1231), and

that petition, together with others filed in various other circuits

on the EPA’s motion to the Court of Appeals for the District

of Columbia (No. 74-1595 in that court). Their contentions

concerning the validity of the exemption provision will pre-

sumably be determined in that litigation.

AS58

The Failure to Promulgate Significant Deterioration Regulations

for Automobile-Related Pollutants

Regulations for two air pollutants, particulate matter and sul-

fur dioxide, having been promulgated after the complaint was

filed (see note 2, supra), plaintifis now seek to require the

Administrator to promulgate regulations for carbon monoxide

and the other automobile-related pollutants for which he had

established national ambient air standards. -

As the District Court pointed out, the Administrator has

already been ordered in Sierra Club v. Ruckelshaus, supra, to

promulgate significant deterioration regulations. Counsel for

the government, in their brief in this court, represented that the

Administrator had complied with this order, and “[tJherefore,

since the significant deterioration regulations have already been

published, the issue of any prior failure to promulgate them is

rendered moot.” Because, as is apparent from the regulations

and the Administrator’s introductory statement accompanying

them (39 Fed. Reg. 42,510 (Dec. 5, 1974)), and as counsel

for the government acknowledged during oral argument, the

regulations that have been promulgated relate to only two of

the six identified pollutants, the case is not moot as to this

point. Whether there is a need for a second order against the

Administrator to do that which he has already been ordered

to do in the Sierra Club case is a question we need not reach,

because we find that this claim is not maintainable by plain-

tiffs at this time.

Section 304(a) of the Amendments, 42 U.S.C. § 1857h—

2(a), provides in pertinent part as follows:

“Except as provided in subsection (b), any person may

commence a civil action on his own behalf—

“(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty

under this Act which is not discretionary with the Aamin-

istrator.”

A59

Subsection (b), 42 U.S.C. § 1857h—2(b), imposes the follow-

ing limitation upon this right to sue:

“No action may be commenced—

“(2) under subsection (a)(2) of this section prior to 60

eee ee eee nee

Plaintiffs failed to give the Administrator sixty days notice

prior to commencing suit, which the District Court held was

fatal to its jurisdiction. The court reasoned that the purpose of

the sixty-day notice requirement was to give the Administrator

time to assess and respond to difficult, multi-count lawsuits, to

deploy attorneys from Washington, if necessary, and to arrange

for the on-going process of regulatory development and other

substantive EPA concerns despite the interruption caused by a

pending lawsuit, The statute’s sixty-day notice requirement

would be nullified, said the court, if plaintiffs were required to

do nothing more than comply with Fed. R. Civ. P. 12(a), which

grants the United States, or an officer or employee thereof, sixty

days in which to answer a complaint in any civil suit. City of

Highland Park v. Train, supra, 374 F.Supp. at 766-767. In

accord with the District Court’s holding are Pinkney v. Ohio

Environmental Protection Agency, supra, 375 F.Supp. at 308

and West Penn Power Co. v. Train, supra, 378 F.Supp. at 944.

Cf. Metropolitan Washington Coalition for Clean Air v. Dis-

trict of Columbia, 373 F.Supp. 1089, 1092 (D.D.C. 1974).*

A60

Contra, Riverside v. Ruckelshaus, 4 E.R.C. 1728 (C.D. Cal.

1972).°

The legislative history of section 304 shows Congress’s deter-

mination that citizen participation in the enforcement of stand-

ards and regulations under the Clear Air Act of 1970 be estab-

lished. It also shows, however, that Congress intended to pro-

vide for citizens’ suits in a manner that would be least likely

to clog already burdened federal courts and most likely to trigger

governmental action which would alleviate any need for judicial

relief. It was in response to these concerns that the statutory

notice provisions were included in section 304.° Congress’s in-

tention would be frustrated if the statutory mandate of section

304(b) were ignored.’

The language chosen by Congress makes it clear that the

Administrator is to be given notice in addition to that required

by Rule 12(a), Fed. R. Civ. P., which allows him sixty days

to answer or move against a complaint by which an action is

commenced. Section 304(b)’s statutory command plainly states

that “[n]o action may be commenced . . . prior to 60 days

after the plaintiff has given notice of such action to the Admin-

3. © cetly wal Ge cane eae amet ee

failure to comply with the statutory notice

304(b) (2) barred jurisdiction under the Clean’ Air Act, the River.

side court found that personal service on the Administrator led

with a lnpeo of slaty Supe between tho dats af Waar Wie Gammiaait

and the date of completion of a hearing on plaintiff's request‘for a

preliminary injunction, amounted to “substantial compliance” with

the a oa notice requirement and gave the Administrator “the

ect” of the requirement. (4 E.R.C. at 1731.)

6. See S. Rep. No. 1196, 91st Cong., 2d Sess., 36-39 (1970),

reproduced at 116 . Rec. 32926-27 (1970); 116 . Rec.

33102-03 (1970); . Rep. No. 91-178, 91st Cong., Sess.,

U.S. Code Cong. & Admin. News 5374, 5388 (1970).

7. See Steinberg, Is the Citizen Suit a Substitute for the Class

Action in Environmental Litigation? An Examination of the Clean

Air Act of 1970 Citizen Suit Provision, on tee AE ne 107,

132 (1974), which discusses the beneficial pte the statutory

notice provision of section 304 has in allowing the EPA an oppor-

tunity to react to citizen complaints before a suit is filed, in some

cases obviating the need for citizen suits.

A61

istrator.” (Emphasis supplied.) Plaintiffs made no attempt what-

soever to comply with the notice provision, and their suit there-

fore could not properly be commenced.

Alternatively, plaintiffs also rely on statutory mandamus,’

28 U.S.C. § 1361, which provides that “district courts shall have

8. = eS re ete ee See 2 ee

ee ae es 1360, ‘plakediie allege aot oc

statutory mandamus, 28 U § 1361 t juris-

diction over the present case also exists under section 10 of the

Ses eo ee §§ 701-706, the Declaratory

Judgment Act, 28 U.S.C. §§ 2201-2202, and the general federal

tion jurisdiction statute, 28 U.S.C. § 1331. We need not consider

ese latter bases for jurisdiction, however, for even assuming that

v. Seamans, 411 F.2d 767, 773 n. 11 (5

397 U.S. 941 (1970).

A62

need not be concerned with defining the jurisdictional reach of

that section. However broad its scope, mandamus cannot be

invoked to require the District Court to order the Administrator

to promulgate significant deterioration regulations.

The traditional principles generally recognized as controlling

the issuance cf a writ of mandamus were concisely stated by

the court in Lovallo v. Froehlke, 468 F.2d 340, 343 (2d Cir.

1972), cert. denied, 411 U.S. 918 (1973), as follows:

“(1) aclear right in the plaintiff to the relief sought; (2)

a plainly defined and peremptory duty on the part of the

defendant to do the act in question; and (3) no other

adequate remedy available.”

See also United States ex rel. Girard Trust Co, vy. Helvering, 301

U.S. 540, 543-544 (1937).

There is, as we have seen, another remedy available that pro-

vided in section 304(a)(2) of the Clean Air Amendments of

1970, which affords any person a direct remedy to compel

the Administrator to perform a non-discretionary duty. We can-

not say that remedy which is available upon compliance with

the notice provision of section 304(b) (2) is inadequate. Further-

more, if mandamus were held to be available as an alternative

to a citizen’s suit under section 304(a)(2), Congress would

have accomplished nothing whatsoever by providing for the

citizen’s suit, or by imposing the sixty-day notice requirement

of section 304(b) (2). The remedy of mandamus is not designed

to circumvent a condition to suit properly imposed by Congress.

It is, accordingly, unnecessary for us to reach the question of

whether there exists that “plainly defined” duty (Lovallo v.

Froehlke, supra, 468 F.2d at 343), the performance of which is

positively commanded and so plainly prescribed as to be free

from doubt (United States v. Walker, 409 F.2d 477, 481 (9th

Cir. 1969)), that is necessary to warrant the issuance of a writ

of mandamus. We do note that the mater was doubtful enough

to cause the Administrator, whose expertise in interpreting the

statute is entitled to weight, to conclude that the duty did not

A63

exist and to cause the Supreme Court in the Sierra Club case

to divide equally on the question of whether he was right. But

cf. Roberts v. United States, 176 U.S. 221, 231 (1899).

Disposition as to Counts I and II

Since neither judicial review of the indirect source regula-

tions nor mandatory relief to compel the promulgation of sig-

nificant deterioration regulations for pollutants related to auto-

mobiles is available in the proceedings before us, there is no

predicate in the allegations of Counts I and II for plaintiffs’

demand for an injunction against further construction on the

highway expansion and the shopping center until their claims con-

cerning these regulations are finally resolved. We cannot find at

this stage a sufficient likelihood that regulations entitling plain-

tiffs to such injunctive relief will ultimately be promulgated

to justify an award of injunctive relief. We therefore affirm the

dismissal of Counts I and II.

Count Ill: Absence of an Environmental

Impact Statement

Plaintiffs allege in Count III that portions of the expansion

of Lake-Cook Road are to be constructed with federal funds,

and that the United States Department of Transportation was

therefore required by the National Environmental Policy Act

of 1969 (“NEPA,” 42 U.S.C. §§ 4321, et seg.) to prepare an

environmental impact statement concerning the expansion, which

has not been prepared. They seek an order requiring the prepara-

tion of such a statement and an injunction prohibiting the

construction of the improvements on the road by Cook County

Department of Highways until the statement is prepared. The

motions to dismiss by the defendants under this count were

supported and opposed by affidavits and documents, and there-

fore were treated by the District Court, under the authority of

Rule 12(c), Fed. R. Civ. P., as motions for summary judgment.

The court granted the motions.

A64

Plaintiffs now question the propriety of deciding the issues

under Count III by a summary judgment. They appear not to

have raised this question when they submitted matter outside

the pleadings in Opposition to the motions, and did not suggest

in their papers in opposition in the District Court the existence

of any other evidence bearing on the issues. They had ample

opportunity to present all material pertinent to the motion. The

court properly determined that there was no genuine issue as

to any material fact.

NEPA requires each federal agency, before taking any “major

Federal actions significantly affecting the quality of the human

environment,” to prepare a “detailed statement” analyzing,

among other things, “the environmental impact of the proposed

action.” (42 U.S.C. § 4332(2)(C).) “Actions” include projects

supported in whole or in part by federal funding. (40 C.F.R.

§ 1500.5(a)(2) (1974).) Plaintiffs contend that federal fund-

ing has been requested for a 2.47 n¥le segment of the Lake-

Cook Road, and that therefore the requirements of NEPA are

applicable to the entire road expansion project.

the 2.47 mile segment of the road has received “federal-aid

secondary system” designation. Designation, however, is merely

the first step in the procedure for obtaining federal funds for

highway improvement. The Federal-Aid Highway Acts indicate

that before federal funding is obtained the project must be

programmed by a state agency for federal funding and then

approved by both the state highway department and federal

authorities. (23 U.S.C. §§ 103(c), (f), 105, and 106.) It is

enactment of NEPA, and there is accordingly no basis for a

contention that the road improvement project was segmented

to circumvent the Act. See River v. Richmond Metropolitan

Authority, 359 F.Supp. 611, 633-636 (E.D. Va. 1973), affd

per curiam, 481 F.2d 1280 (4th Cir. 1973).

A65

Plaintiffs submitted, in opposition to the motion, documents

for. They consist of a letter from the County Department of

Transportation transmitting a county resolution to have Federal

Aid Secondary Route (“FAS”) 122 (the approximately .5 mile

segment between Pfingston and Waukegan Roads) programmed

for federal funding; the resolution itself; the Hlinois Depart-

ment's letter to the County Department approving the resolution;

a similar set of letters and a resolution concerning FAS 1013

(the approximately 2 mile segment between Sanders and

Pfingston Roads); and a document entitled “Draft/Combined

Corridor and Design Environmental Statement/Administrative

Action for Federal Aid Secondary Routes 1013 & 122,” which

is not signed and has “Preliminary 11/16/73” written across

it. These documents give no indication of federal involvement

up to that point in the approval process. Defendants submitted

affidavits showing that there has been no programming by the

State of Illinois for federal funding of the Lake-Cook Road

improvement project, and that no application for federal funds

has been made. Counsel for the Cook County Department of

Highways represented at oral argument that these facts were

unchanged.

Thus the documents relied on by plaintiffs show nothing

more than a possibility that federal funds might be applied for.

The affidavits establish that no federal funds have in fact been

applied for.

One case sustained a preliminary injunction against construc-

tion of a highway project for failure to comply with a federal

relocation statute, holding that the project for a part of the

granting relief, the district court found it unnecessary

to the of whether defendants also violated NEPA,

which was a La Raza Unida v. Volpe, 337

F 221, .D. Cal. 1971). The Court of Appeals did

A66

for purposes of that statute when it received location approval"

prior to any application for federal funds. La Raza Unida v.

Volpe, 488 F.2d 599 (9th Cir. 1973), cert. denied, 417 US.

968 (1974). That case was not decided under NEPA, which

applies to proposed major federal actions and not to a federal-

aid secondary designation that took place along before NEPA

was adopted or to possible federal funding that is not proposed

at present. And, as the district court in River v. Richmond

Metropolitan Authority, supra, stated; “Notwithstanding the

fact that La Raza Unida declared a highway project to be fed-

eral early in the planning process, it most assuredly did not

hold that a project could be federal where no federal participa-

tion had ever taken place.” 359 F.Supp. at 634. Possible future

federal funding is all that the plaintiffs in the case at bar have

shown.

The Lake-Cook Road improvement appears from the sum-

mary judgment papers to be a state project on which no

federal action is proposed, and therefore, NEPA’s require-

ment of an environmental impact statement does not apply

to the project. See Citizens for Balanced Environment and

Transportation, Inc. v. Volpe, 503 F.2d 601 (2d Cir. 1974);

Civic Improvement Committee v. Volpe, 459 F.2d 957 (4th

Cir. 1972); cf. Bradford Township v. Illinois State Toll High-

way Authority, 463 F.2d 537, 540 (7th Cir. 1972), cert

denied, 409 U.S. 1047 (1972). ‘

Count IV: The Equal Protection Challenge

to the Zoning Ordinance

Plaintiffs allege in amended Count IV that the Village of

Northbrook and its trustees have deprived them of the equal

protection of the laws as guaranteed by the Fourteenth Amend-

ment and seek a judgment declaring invalid Northbrook’s zon-

11. The district court defined location approval as the second

al tana way project, in which the route is specifically estab-

lished within a corridor which has previously been defined. (Jd. at

223-224.) Location approval cannot take place unless the state high-

ing approval

an injunction “barring future zoning approval until Northbrook

demonstrates that its residents have been subjected to similar

environmental assaults.” Jurisdiction is purportedly predicated

upon 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 2201

(declaratory judgment remedy); and 42 U.S.C. § 1983 (de-

privation of constitutional or federal statutory rights under

color of state law), and its jurisdictional correlative, 28 U.S.C.

§ 1343.

Plaintiffs allege in substance that, upon information and

belief, Northbrook and its trustees have “aggressively pro-

tected” its residential areas from intrusion by massive com-

mercial developments such as the proposed shopping center

complex; that their action in giving zoning approval to the

proposed shopping center complex will cause the eventual

subjection of plaintiffs to “vast increase in noise and air pol-

lution as well as aesthetic destruction of the quiet residential

character of their community;” and that by exposing plaintiffs

to these environmental hazards, while protecting Northbrook

residents from intrusion of similar developments, Northbrook

has discriminated against them in violation of the Fourteenth

Amendment. The amendment to the complaint, in which plain-

tiffs joined the trustees of the Village of Northbrook as addi-

them. The village and the trustees moved to dismiss Count

IV of the complaint for want of jurisdiction as to it under 42

U.S.C. § 1983 and for failure to state a claim for which relief

could be granted.

As the District Court correctly held (City of Highland Park

v. Train, supra, 374 F.Supp. at 773), there is no jurisdic-

tion under 42 U.S.C. § 1983 over the claim against the village.

City of Kenosha v. Bruno, 412 U.S. 507, 513 (1973). As-

or es Ne areal aes let ane neni name

way department requests it and until a corridor public i

held om the pd aww ged C.F.R. $8 790.9(e) (1), 790.2(a) (197 +

Nothing comparable to these procedures has taken place in the

A68

tion against the village on the claim based upon the Fourteenth

Amendment under 28 U.S.C. § 1331. The absence of any

specific request for relief against the trustees may have justified

dismissal as to them, but in any event the complaint, as

amended, states no claim on which relief could be granted

against either the trustees or the village.

A zoning ordinance is clothed with every presumption of

validity. City of Ann Arbor, Mich. v. Northwest Park Constr.

Corp., 280 F.2d 212, 223 (6th Cir. 1960). Derived from

the states’ police power, the legislative authority which grants

municipalities the power to adopt and enforce zoning ordi-

nances and regulations is not to be narrowly confined. Village

of Belle Terre v. Boraas, 416 U.S. 1, 5-8 (1974); cf. Berman

V. Parker, 348 U.S. 26, 32-33 (1954). Unless it is based upon

a suspect classification or impinges upon a fundamental right

(see Village of Belle Terre v. Boraas, supra, 416 U.S. at 6,

7), which is not true in the case at bar, zoning legislation may

be held unconstitutional only if it is shown to bear no possible

relationship to the state’s interest in securing the health, safety,

morals, or general welfare of the public and is, therefore, mani-

festly unreasonable and arbitrary. E.g., Village of Euclid v.

Ambler Realty Co., 272 U.S. 365, 395 (1926); Gorieb v. Fox,

274 U.S. 603, 610 (1927); Aquino v. Trobiner, 298 F.2d

674, 677 (D.C. Cir. 1961). Thus the scope of judicial review

is limited «

It is well established that “[iJn the area of economics and

social welfare, a State does not violate the Equal Protection

Clause merely because the classifications made by its law are

imperfect. If the classification has some ‘reasonable basis,’ it

does not offend the Constitution simply because . . . ‘in practice

it results in some inequality.’” Dandridge v. Williams, 397

U.S. 471, 485 (1960): see Village of Belle Terre v. Boraas,

supra, 416 U.S. at 8; Sinclair Refining Co. v. City of Chicago,

178 F.2d 214, 217 (7th Cir. 1950). As the Supreme Court

observed in Village of Euclid vy. Ambler Realty Co., supra:

A69

“[L]aws may , . . find their justification in the fact that, in

some fields, the bad fades into the good by such insensible

degrees that the two are not capable of being readily dis-

tinguished and separated in terms of legislation.” (272 U.S. at

389.)

Inherent in all zoning legislation are statutory distinctions

which give rise to claims of disparity of treatment. Inevitably

areas zoned for nonresidential uses will touch areas zoned for

residential uses, and the burden of the zoning always falls most

heavily on the residents adjacent to the boundary. This is es-

sentially all that plaintiffs have alleged here, except that they

have framed their grievance in the rhetoric of equal protection.

Plaintiff residents of Highland Park and Glenbrook Country-

side allege no classification other than the distinction between

residents in close proximity to the proposed shopping center and

residents who live farther away. Such a classification, inherent

in all zoning, is not within the purview of the Fourteenth

Amendment. Cf. L’Hote v. City of New Orleans, 177 US.

587, 597 (1899). “Some must suffer by the establishment of

any territorial boundaries. . . » If these limits hurt the [appel-

lants], other limits would hurt others.” (1d.) So long as such

legislation applies equally to all persons similarly situated in

a given locale, there can be no violation of the Equal Protection

Clause. Cf. Caskey Baking Co. v. Virginia, 313 US. 117,

121 (1941); United States v. Holmes, 387 F.2d 781, 785 (7th

Cir. 1967), cert. denied, 391 U.S. 936 (1968).

Zoning is not rendered unconstitutional by the fact that

any direct benefit the plaintiffs may receive from it is less

than the possible burdens it may impose upon them. Plaintiffs

having failed in Count IV to state a claim upon which relief

can be granted, the District Court’s dismissal of that count is

affirmed.

The Petition for Review

On January 6, 1975, plaintiffs filed in this court a petition for

review, No. 75-1006, seeking review of the significant deteriora-

A70

tion regulations promulgated by the Administrator on December

5, 1974. That petition which states as petitioners’ sole grievance

the Administrator's failure to promulgate significant deterioration

regulations with respect to carbon monoxide and other auto-

mobile related pollutants was consolidated with No, 74-1271

on the representation by petitioners that the same substantive

issues were involved in the two cases, the court viewing the

petition for review as an attempt by petitioners to “safeguard

their jurisdictional grounds.” (Order of Feburary 11, 1975,

denying motion to reconsider consolidation. )

No brief has been submitted in support of the petition for

review. We therefore do not have the benefit of petitioners’

views as to the appropriateness of a petition for review to com-

pel the Administrator to act. We think, however, that the

function of a petition for review is to invoke a review for

correctness by the Court of Appeals of regulations adopted by

the Administrator and not to compel the Administrator to

act when he has failed to act. Petitioners, in their petition for

review, do not challenge the significant deterioration regulations

on particulate matter and sulfur dioxide which the Administrator

has promulgated. Their petition rather complains that the Ad-

ministrator “continues in his failure” to promulgate regulations

relating to carbon monoxide and other motor vehicle related

pollutants. The appropriate procedure for compelling the, Ad-

ministration to act is that provided in section 304(a), supra,

which expressly provides for an action in the district court

“against the Administrator when there is alleged a failure of

the Administrator to perform any act or duty under this Act

which is not discretionary with the Administrator.” Plaintiffs

recognized this when they brought their action under section

304(a), but they failed to give statutory notice that would

have made their action viable. The petition for review is dis-

missed,

AFFIRMED in No, 74-1271; Petition for Review DismMissEep

in No. 75-1006.

A7l

UNITED STATES DisTRICT CourRT,

N. D. Illinois, E.D.

March 15, 1974.

SUPPLEMENTAL OPINION MARCH 25, 1974.

Tue City oF HIGHLAND PARK, EBT AL.,

Plaintiffs,

VILLAGE OF DEERFIELD,

Additional-Plaintiff, 1-3-74,

vs.

RUSSELL E. TRAIN, BT AL.,

Defendants.

No. 73 C 3027.

MEMORANDUM OPINION

Decker, District Judge.

In this multi-count action, plaintiffs assert that they have been

denied, or are in imminent danger of being denied, various fed-

eral Constitutional and statutory rights through the action and

inaction of various federal, county and private defendants. In

general, the primary impetus for this lawsuit is the alleged

violation by federal officials and agencies of their duties under

the Clean Air Act, as amended, 42 U.S.C. § 1857 et seq., and

the National Environmental Protection Act, 42 U.S.C. § 4321

et seq., by failing to subject a particular highway expansion

project and an adjacent shopping center complex to the require-

ments of those statutes. Plaintiffs seek declaratory and injunctive

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relief ordering the governmental defendants to take action to

meet their statutory obligations and prohibiting further con-

struction of the road expansion or shopping center in the interim.

Plaintiffs consist of the cities of Highland Park and Deerfield,

municipal corporations in the immediate area of the shopping

center site; the Tri-Suburban Defense Counsel, a non-profit Ili-

nois corporation, whose membership includes residents of High-

land Park, Deerfield and Northbrook interested in protecting

the physical and aesthetic environment of those cities; and vari-

ous residents of Highland Park and Glenbrook Countryside. The

individual plaintiffs live immediately north or west of the shop-

ping center construction site.

In December, 1973, a hearing was held on plaintiffs’ motion

for a preliminary injunction and on defendants’ motions to dis-

miss for lack of subject matter jurisdiction, or, in the alternative,

for failure to state a claim upon which relief could be granted.

The parties having exhaustively briefed the issues raised at

the hearing, the matter is presently before the court for a decision

of those motions.

1. Background to the Lawsuit

The facts culminating in this lawsuit, as gathered from the

papers on file, are as follows: Lake-Cook Road constitutes the

boundary line between Luke and Cook Counties. For most of

its length, the road consists of two lanes. Starting in 1967, the

Cook County Highway Department began to develop plans to

expand the road to a four-lane highway and also to construct a

four-land extension where no road presently exists. Althouyl: it

appears that, at that time, an expanded Lake-Cook Road was

deemed to be capable of handling projected traffic increases for

the next 20 years or more, plaintiffs claim that these estimates

did not foresee, nor take into account, the increment in average

daily traffic that would be caused by the construction of a large

shopping center complex on the Road.

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In January, 1973, the defendant developers' submitted a

proposed plan for the construction of a large shopping center on

Lake-Cook Road between Skokie Highway and Waukegan

Road.’ Because of the location of the proposed site in conjunc-

tion with the Tri-State Tollway, which blocks all north-south

through street access in the area except for Skokie Highway

and Waukegan Road, the only main thoroughfare providing

access to the shopping center will be Lake-Cook Road. Con-

sequently, plaintiffs estimate that 90% of the traffic generated

by the proposed shopping center will have to use Lake-Cook

Road.’

Plaintiffs claim that expected traffic growth plus the increase

in vehicle trips to be generated by the shopping center‘ will

soon overwhelm the Lake-Cook Road expansion and will create

especially acute traffic congestion at the intersections of Lake-

Cook Road with Skokie Highway and Waukegan Road.

These developments allegedly will subject plaintiffs to a sub-

stantial increase in “noise and discomfort in the use of their

homes and in the use of the streets in their community.” More

specifically, plaintiffs forecast that the increase in traffic will

raise the concentration of carbon monoxide in the ambient air

by more than 66% over existing levels.

1, The developers consist of Sears, Roebuck and Co., Nieman-

Marcus Co., Lord and Taylor Inc., Homart Development Co.,

Broadway-Hale, Inc., and Northbrook Associates.

2. Plaintiffs claim that the shopping center will occupy 1,000,000

square feet and will contain four department stores, 120 smaller

retail shops, facilities, and an auto repair center. The

parking lot will hold 5,000 cars.

3. This estimate is supported by a traffic impact study of the

proposed development. ec

4. It is estimated that 28,400 vehicle trips per day will be

attributable to the shopping center.

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ll. Counts I and Il

These counts comprise the heart of this lawsuit. Here plain-

tiffs allege that the Administrator of the Environmental Protec-

tion Agency (“EPA”) has failed to promulgate regulations in

conformity with a timeable set forth in the Clean Air Act

Amendments of 1970 and proposes to grant projects which be-

gin construction prior to May 15, 1974, exemptions from that

statute’s regulations, also in violation of the statute.

A. The Clean Air Act Amendments of 1970°

The Clean Air Act was enacted, inter alia, “to protect and

enhance the quality of the Nation's air resources so as to promote

the public health and welfare.” 42 U.S.C. § 1857(b)(1). The

program established to control air pollution divides responsibility

for the task between the states and the federal government.

The Administrator of the EPA has exclusive responsibility for

establishing “national ambient air quality standards,”* while the

states have primary authority, subject to EPA review, for estab-

lishing “implementation plans” to achieve these standards. In

spite of the complexity and breadth of this undertaking, the

Act established an expedited schedule for EPA promulgation

of air quality standards, the submission of state implementation

plans, and the development of substitute federal programs to

replace deficient state plans.

Thus, within 30 days after the passage of the Act, the

Administrator was to publish proposed ambient air quality

standards for each pollutant for which “air quality criteria had

5. The Clean Air Act was originally enacted in 1963, 77 Stat.

392, and amended in relatively minor respects three times during

the following seven years. Its present form, however, derives almost

entirely from the amendments adopted in 1970,

6. These are standards designating the maximum tolerable con-

centration in the air of substances identifiable as pollutants. See

42 U.S.C, § 1857¢—4(a).

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been issued.” 42 U.S.C. § 1857c—4(a)(1)(A).’ After a maxi-

mum of 90 days for public comment upon these proposals, the

Administrator was required to issue final air quality standards.

42 U.S.C, § 1857c—4(a)(1)(B). Both of these deadlines were

met by the EPA.

Within nine months, after the promulgation of the national

ambient air standards, each state was to submit to the Adminis-

trator a plan which provided for the “implementation, mainte-

nance, and enforcement” of these standards. 42 U.S.C. § 1857—

5(a)(1). The Administrator was to review the state plans

within four months to assure that they satisfied the statutory

requirements, 42 U.S.C, § 1857c—5(a)(2). Each plan was

to provide for the attainment of the national primary standards

“as expeditiously as possible” but in no case later than three

years after the date of EPA approval of the plan. 42 U.S.C.

§ 1857c—5(a)(2)(A)(i). Attainment of national secondary

standards was to occur with a “reasonable time” to be specified

in the plan, 42 U.S.C. § 1857c—5(a)(2)(A) (ii). Further, each

plan was to include “emission limitations, schedules and time-

tables for compliance with such limitations, and such other

measures as may be necessary to insure attainment and mainte-

nance of such primary or secondary standard, including, but

not limited to, land-use and transportation controls.” 42 U.S.C.

§ 1857c—5(a)(2)(B). The Act also sets forth a number of

other specific conditions required before the approval of the

EPA was to be forthcoming. If the plan or any portion thereof

was determined not to satisfy the statutory conditions, the

Administrator was required to disapprove tne plan or portion.

In such a situation, he had six months from the date of submis-

sion or two months from the date of disapproval, to promulgate

7. The Administrator was to establish two sets of ambient

standards: (1) “primary standards,” the “attainment and main-

tenance of which . . . are requisite to protect the public health,”

42 U.S.C, § 1857c—4(b) (1); and (2) “secondary standards” “requi-

site to protect the public welfare from any known or anticipated

adverse effects.” 42 U.S.C. § 1857¢—4(b) (2). ”

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his own implementation plan, or portion, for the state involved.

42 U.S.C, § 1857e—5(c).

Prior to and during the period in which the state plans were

under review by the EPA, the Administrator repeatedly ex-

pressed doubts about his authority to require state plans to pro-

tect against “significant deterioration” of existing clean air

regions’ and was on record as stating that he would not de-

mand such provisions in state plans. See Sierra Club v. Ruckels-

haus, 344 F Supp. 253, 254 (D.C.D.C.), affd per curiam

(D.C.Cir, 1972), aff'd by an equally divided court sub nom.,

Fri v. Sierra Club, 412 U.S, 541, 93 S.Ct. 2770, 37 L.Ed.2d

140 (1973). The Sierra Club brought suit in the U.S. District

Court for the District of Columbia to enjoin the Administrator

from approving any state plans omitting provisions on sig-

nificant deterioration, claiming that such action would con-

stitute a failure to perform a non-discretionary duty in violation

of the Act. See 42 U.S.C. § 1857h—2(a). After examining the

stated purpose of the Clean Air Act Amendments of 1970, the

legislative history of the Act and its predecessor, and pertinent

administrative regulations, see 344 F.Supp. at 255-256, the

court held for the plaintiffs, concluding that:

“(T)he Clean Air Act of 1970 is based in important part on

a policy of non-degradation of existing clean air and

that . . . permitting the states to submit plans which allow

pollution levels of clean air to rise to the secondary stand-

ard level of pollution, is contrary to the legislative px policy of

the Act and is, therefore, invalid.” 344 F.Supp. at 256.

The Illinois plan was duly submitted on January 31, 1972,

and partial EPA approval was forthcoming on May 31, 1972,

within the four-month period prescribed by the statute. However,

Illinois and a number of other states were granted an extension

until February 15, 1973, to submit the transportation control

8. “Significant deterioration” is an environmental concept refer-

ring to situations where the level of pollution in a given area is lower

than the secondary air quality standard but is allowed to degrade

to the level of the standard.

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portions of their implementation plans. See Natural Resources

Defense Council v. E.P.A., 154 U.S.App.D.C. 384, 475 F.2d

968, 970 (1973) (hereinafter referred to as Natural Resources).

Suit was immediately instituted in the U.S. Court of Appeals

for the District of Columbia Circuit challenging these exten-

sions, inter alia. Natural Resources, supra. The court determined

that, although the Administrator had “acted in the best of faith

in attempting to comply with the difficult responsibilities im-

posed upon him by Congress,” 475 F.2d at 970, Le had failed

to conform to the strict time requirements of the Clean Air Act

in granting the extensions with respect to the transportation con-

trol aspects of the state plans. In addition, the court found in-

sufficient evidence in the record with respect to whether the

EPA had conducted a state-by-state determination on the ef-

ficacy of the state plans to provide for maintenance of the pri-

mary and secondary standards beyond May 31, 1975.° In order

“to remedy these violations of the Act,” the court established

its own time schedule under which the EPA was to review the

state pians as to their maintenance provisions and to disapprove

those which he determined did not contain sufficient measures.

Pursuant to this re-examination, the state plans of Illinois and

all other states were found to be deficient.

However, the states were granted a second opportunity to

develop adequate programs. In guidelines to the states to aid

them in developing these plans, the Administrator noted that

several mechanisms were available to mitigate the impact of

community growth on air quality maintenance. For example,

maintenance could be guaranteed by then-required provisions

to review the construction or modification of a stationary source

of air pollution where emissions from that source would result

in interference with maintenance. 40 C.F.R. § 51.18. See 39

9. The court also found that the Administrator had violated the

Act oath granting extensions to mid-1977 for attainment of the na-

tional primary ambient air standards without following the statutory

procedures. 42 U.S.C. § 1857c—S(e).

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F.R. 7270 (February 25, 1974). But the Administrator warned

such measures alone would not be adequate to ensure mainte-

nance. Accordingly, he advised that the stationary source review

procedures be expanded by the states to cover “complex” or

“indirect” sources of air pollution—“facilities [like the shopping

center in question here] which do not themselves emit pollu-

tants, but which attract increased motor vehicle activity and

thereby may cause violations of an implementation plan’s trans-

portation control strategy or may prevent or interfere with the

attainment of an ambient air quality standard.” 39 F.R. 7270

(February 25, 1974). Notwithstanding these suggestions the

states failed to include adequate complex source provisions

and the Administrator again was compelled to disapprove the

state plans. See 38 F.R. 6290 (March 8, 1973). At the time

of the institution of this suit, and pursuant to the time schedule

adopted by the court in Natural Resources, the EPA was in the

process of holding public hearings in 43 states to receive com-

ment on complex source regulations.*°

B. The Issues in Counts I and Il

In Count I, plaintiffs complain of the continuing failure of the

Administrator to promulgate federal implementation regulations

to correct the deficiencies of the Illinois plan within the time

period established by the Act. Since disapproval, rather than

approval, should have occurred on May 31, 1972, and since

the Act granted the Administrator two months thereafter to issue

substitute implementation plans, plaintiffs assert that the Admin-

istrator has been in violation of the Act since July 31, 1972.

Specifically, plaintiffs emphasize the failure of the Administrator

to issue regulations to prevent the significant deterioration of air

quality in areas, such as the proposed shopping center location,

with air cleaner than national standards or to prevent violations

10. On February 14, 1974, the Administrator issued final

regu-

lations concerning indirect sources. See 39 F.R. 7270 (February 25,

1974).

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of the standards by complex sources. Plaintiffs seek an order

requiring the EPA to promulgate regulations addressed to those

problems and halting further construction of the shopping center

until the plans therefor have been reviewed by the Administrator

under the foregoing regulations.

Count II asserts that the expansion of the Lake-Cook Road,

“as impacted by the traffic load” to be generated by the shop-

ping center complex, will cause significant degradation of air

quality in the neighborhood and will interfere with the mainte-

nance of air quality standards. Plaintiffs repeat their Count I

prayer for a mandatory injunction upon the Administrator to

issue the overdue regulations and, further, ask that the road

improvement be halted until such time as the regulations are

promulgated and the road project is subjected to federal re-

view thereunder.

In response, the defendants have submitted numerous chal-

lenges to the jurisdictional bases alleged in the complaint. Each

of these will be addressed in turn.

1. Jurisdiction Under the Clean Air

Act Amendments of 1970.

Initially, defendants argue that plaintiffs are in the wrong

court because the Act provides an exclusive forum in the Courts

of Appeals to review allegations of the type made in this com-

plaint. The section of the statute upon which defendants rely

provides in relevant part:

“A petition for review of the Administrator's action in

approving or promulgating any implementation plan under

section 1857c-5 . . . may be filed only in the United States

Court of Appeals for the appropriate circuit. Any such

petition shall be filed within 30 days from the date of

such promulgation of approval, or after such date if such

petition is based solely on grounds arising after such 30th

day.” 42 U.S.C. § 1857h-5(b) (1).

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Strong arguments are presented by both parties as to the

applicability of this provision to the situation at bar. Plaintiffs

eaptbarnineitped icarties s sra

in “approving or promulgating any implementation s

pean map do specifically alleges that the Administrator

disapproved the Dlinois plan under the guidelines of the court

in Natural Resources, and has not issued a substitute plan. On

the other hand, the EPA and the developers argue that the

suit falis within the purview of that section. In support thereof,

those defendants contend that the origin of this lawsuit can be

traced to the Administrator's approval of the Illinois plan on

May 31, 1972, and that any regulation enacted will become part

of the state plan.™

Courts apparently have differed in the interpretation to be

given this statutory provision. Compare Utah Int'l, Inc. v.

E.P.A., 478 F.2d 126, 127 (10th Cir. 1973); Anaconda Co. v.

Ruckelshaus, 482 F.2d 1301, 1305 (10th Cir. 1973), 482

F.2d 1301, 1305 (10th Cir. 1973), with Pinkney v. Ohio Env.

Prot. Ag., 375 F.Supp. 305 (N.D.Ohio, 1974). Pinkney is the

only case on point. In that case, plaintiffs also challenged the

action of the Administrator in delaying the effective date of

federal regulations with respect to indirect sources. The court

deemed this aspect of the suit to constitute a petition for review

of administrative action in promulgating regulations and, thus,

within the exclusive jurisdiction of the court of appeals.”

11. Defendants claim that zy also could have t

review of EPA approval of the Illinois transportation control

on December 5, 1973.

12. In Utah Int'l, Inc. v. E.P.A., supra, the court interpreted

the clause aide

“to provide for judicial review of final administrative action.

Hence, an order approving a state plan is subject to review, for

by approving a state plan, the E.P.A. thereby places the state

plan into effect. However, an order disapproving a state plan

is not subject to review, because by the mere act of dis-

approval no plan is placed into effect and the administrative

process is simply reactivated.” 478 F.2d at 127.

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To the extent that judicial interpretations of 42 U.S.C.

§ 1857h—5(b)(1) are irreconcilable, this court need not

choose among them, for, even assuming that this action is

cognizable in this court, plaintiffs are barred from this forum

for failing to observe the Act’s procedural requisites for filing

suits in district court.

The Act provides for district court jurisdiction of civil suits

challenging certain actions of the Administrator. The relevant

language provides:

“[AJny person may commence a civil action on his own

behalf—

oe e s > .

(2) against the Administrator where there is alleged a

failure of the Administrator to perform any act or duty . ae

which is not discretionary with the Administrator.” 42

U.S.C. § 1857h—2(a).

However, certain limitations are imposed upon this right to

sue:

“No action may be commenced—

e s 2 . *

(2) under [the foregoing provision] prior to 60 days after

the plaintiff has given notice of such action to the Admin-

istrator. . . .” 42 U.S.C. § 1857h—2(b).¥

Plaintiffs acknowledge that this action was instituted without

according 60 days notice to the Administrator. However, in an

apparent attempt to overcome this omission, plaintiffs have

stated that they would not rely upon the citizen suit provision

of 42 U.S.C. § 1857h—2 until the expiration of 60 days from

the filing of the complaint. This strategy is based upon the

decision in Riverside v. Ruckelshaus, 4 E.R.C. 1728 (C.D.Cal.

1972). The court there held that personal service upon the

Administrator together with a lapse of 60 days between the

13. The statute granted the Administrator authority to specify

the manner in which the notice is to be given. The regulations

scribing the procedures for giving notice are set forth at 36 FR.

23386-87 (December 9, 1971).

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date of filing and the date of completion of a hearing on plain-

tiffs’ request for a preliminary injunction amounted to sufficient

constructive compliance with the notice provision so as to give

the court jurisdiction under 42 U.S.C. § 1857h -2.

Such an approach to the notice provision constitutes, in effect,

judicial amendment in abrogation of explicit, unconditional

statutory language and this court respectively declines so to

ignore or to modify the notice requirement. _

Not only is strict adherence mandated by the statute,

it is supported by compelling practical and policy considera-

tions, especially in cases of a complex nature such as the one

before the court. Congress was aware of the 60 days granted

the United States, or an officer or employee thereof, to answer

complaints in civil suits under Rule 12(a), F.R.C.P., when it

incorporated the notice provision into the Clean Air Act. Had

the drafters of the Act considered the Rule 12 period alone

to be sufficient, they would not also have required notice prior

to commencement of the suit. During the 60-day period, many

questions that might otherwise be presented to the court could

be subject to negotiated settlement; this possibility for compro-

mise is at least reduced by forcing the Administrator into court

with abbreviated notice. Further, without the grace period, the

EPA would be accorded only a few days, as here, where plain-

tiffs sought an immediate restraining order, to assess, and pre-

pare a response to, a difficult, multi-count suit, seeking substan-

tially more than mere ministerial action. In addition, complex

matters might necessitate deploying attorneys from Washing-

ton. And, of course, institution of suit interrupts the on-going

process of regulation development and other substantive EPA

concerns. In light of these considerations, scrupulous observance

of the 60-day notice provision must be required. Thus, plain-

tiffs’ failure to meet the notice requirement is fatal to jurisdic-

tion under 42 U.S.C. §1857h—2. Accord: Pinkney v. Ohio

Env. Prot. Ag., supra.

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2. Other Jurisdictional Bases.

The foregoing discussion has precluded the explicit judicial

review provisions of the Clean Air Act as bases for jurisdiction

in this court. However, an apparent saving clause provides:

“Nothing in this section [referring to 42 U.S.C. § 1857h-2]

shall restrict any right which any person may have under

any statute or common law . . . to seek any other relief

(including relief against the Administrator or a State

agency).” 42 U.S.C. § 1857h-2(e).

In reliance upon that clause, plaintiffs maintain that jurisdic-

tion exists under the following melange of statutes: (1) section

10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706;

(2) the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202;

(3) the general federal question jurisdictional statute, 28

U.S.C. § 1331; and (4) 28 U.S.C. § 1361.

(a) The Administrative Procedure Act.

A quick reading of section 10 of the Administrative Pro-

cedure Act (“APA”), 5 U.S.C. §§ 701-706, would indicate

that those provisions constitute a sufficient jurisdictional base

for this action. Under the APA, “[a] person suffering legal

wrong because of agency action, or adversely affected or ag-

grieved by agency action . . . is entitled to judicial review there-

of.” 5 U.S.C. § 702. The Act further provides that “[ajgency

action made reviewable by statute and final agency action for

which there is no other adequate remedy in a court are subject

to judicial review.” 5 U.S.C. § 704. “The form of proceeding

for judicial review” is controlled by “special statutory review

proceeding relevant to the subject matter in a court specified”

by the particular statute; however, in the “absence or inadequacy”

of that review, “any applicable form of legal action” may be

brought “in a court of competent jurisdiction.” 5 U.S.C. § 703."

_ 14. The APA recites actions for declaratory judgment, injunc-

tion, and habeas corpus as examples of forms of legal actions.

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The preceding language clearly implies that, where a

statute has established a review proceeding adequate to the

subject matter, that proceeding is to control. In fact, courts have

established a rule that where Congress has provided adequate

procedures for judicial review of administrative action, that pro-

cedure must be followed. Utah Int'l, Inc. v. E. P. A., supra

478 F.2d at 128; Frito-Lay, Inc. v. F. T. C., 380 F.2d 8 (Sth

Cir. 1967); United States v. Southern Ry. Co., 364 F.2d 86

(Sth Cir. 1966), cert. denied, 386 U.S. 1031, 87 S.Ct. 1479,

18 L.Ed.2d 592 (1967). See Pinkney v. Ohio Env. Prot. Ag.,

supra, Otherwise stated,

“{iJf Congress specifically designates a forum for judicial

review of administrative action, such a forum is exclusive,

and this result does not depend on the use of the word

‘exclusive’ in the statute providing for a forum for judicial

review.” Getty Oil Co. v. Ruckelshaus, 467 F.2d 349,

356 (3d Cir. 1972), cert. denied, 409 U.S, 1125, 93 S.Ct.

937, 35 L.Ed.2d 256 (1973).

See Hegedorn v. Union Carbide Corp., 363 F.Supp. 1061,

1067 (N.D.W.Va. 1973).

As discussed in section //.B.]., supra, the Clean Air Act

Amendments of 1970 contain their own jurisdictional and judi-

cial review provisions. The Administrator may be brought into

district court when he is alleged to have failed to perform a

non-discretionary duty, 42 U.S.C. § 1857h—2(a)(2); and,

when the Administrator is charged with improperly approving

or promulgating a state plan, a petition to review may be filed

in the appropriate Court of Appeals. 42 U.S.C. § 1857h—5(b).

These provisions would appear to cover the entire gamut of

situations where it would be necessary to challenge the Admin-

istrator.

In the light of the rigorous manner in which the Courts

of Appeals have reviewed the Administrator’s actions in promul-

gating or approving state plans, it cannot be said that those

review provisions are inadequate. See, ¢. g., Natural Resources

A85

Defense Council v. E. P. A., 489 F.2d 390 (Sth Cir, 1974).

Assuming that this lawsuit is one properly to be presented to a

district court, plaintiffs have iorfeited their statutory right to

be in this forum by neglecting to observe the 60-day notice

requirement. See section //.B./., supra. Any “absence or inade-

quacy” of the citizen suit provision is solely attributable to the

plaintiffs and cannot be cured by refuge in the APA. See Pink-

ney v. Ohio Env. Prot. Ag., supra.

Accordingly, section 10 of the APA does not constitute an

independent jurisdictional basis for this lawsuit.

(b) The Declaratory Judgment Act.

Under the Declaratory Judgment Act, 28 U.S.C. §§ 2201,

2202, any federal court may declare the rights and legal

relationships of parties who have presented an actual case

or controversy within the court’s jurisdiction. However, it is

well-settled that this statute is not jurisdictional; its operation is

procedural only. Aetna Life Ins. Co. v. Haworth, 300 U.S.

227, 240, 57 S.Ct. 461, 81 L.Ed. 617 (1937). See Skelly Oil

Co. v. Phillips Pet. Co., 339 U.S. 667, 671, 70 S.Ct. 876, 879,

94 L.Ed. 1194 (1950). The Declaratory Judgment Act “en-

larged the range of remedies available in the federal courts but

did not extend their jurisdiction.” Skelly Oil Co. v. Phillips Pet.

Co., supra.

Thus, unless plaintiffs’ action is otherwise within the

competence of this court, the Declaratory Judgment Act is of

no help in establishing jurisdiction. See Getty Oil Co. v. Ruckels-

haus, supra 467 F.2d at 356; Zimmerman v. United States

Gov't., 422 F.2d 326, 331 n. 7 (3d Cir.), cert. denied, 399

U.S. 911, 90 S.Ct. 2200, 26 L.Ed.21 565, reh. denied, 400

U.S. 855, 91 S.Ct. 26, 27 L.Ed.2d 93 (1970); Hagedorn v.

Union Carbide Corp., supra 363 F.Supp. at 1068; Thompson

v. Groshens, 342 F.Supp. 516, 520 n. 11 (E.D.Pa.1972);

Mattingly v. Elias, 325 F.Supp. 1374, 1375 n.3 (E.D.Pa.1971),

rev'd on other grounds, 482 F.2d 526 (3d Cir. 1973).

A86

The general federal question statute, 28 U.S.C. § 1331, con-

fers upon district courts original jurisdiction of suits arising

under the Constitution, laws, or treaties of the United States.

The classic case of Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773,

90 L.Ed. 939 (1946), set forth the analysis to be employed by

the courts in determining whether allegations were sufficient

to establish subject matter jurisdiction under that statute:

“(Where the complaint, as here, is so drawn as to seek

recovery directly under the . . . laws of the United States,

the federal court . . . must entertain the suit... . The

reason for this is that the court must assume jurisdiction

to decide whether the allegations state a cause of action on

which the court can grant relief... .

“Jurisdiction . . . is not defeated . . . by the possibility

that the averments might fail to state a cause of action on

which [plaintiffs] could actually recover, For it is well

settled that the failure to state a proper cause of action

calls for a judgment on the merits and not for a dismissal

for want of jurisdiction. Whether the complaint states a

cause of action on which relief could be granted is a ques-

tion of law and just as issues of fact it must be decided

after and not before the court has assumed jurisdiction over

the controversy. If the court does later exercise its jurisdic-

tion to determine that the allegations . . . do not state a

ground for relief, then dismissal of the case would be on

the merits, not for want of jurisdiction.” Id. at 681-682,

66 S.Ct. at 776.

Plaintiffs’ allegations that the Administrator has breached

a statutory duty owed to them under the Clean Air Act Amend-

ments (i. e., that he has failed to meet the statutory timetable

and failed to promulgate regulations which would prevent signifi-

cant degradation of air quality and prevent violations of air

quality standards by indirect sources) clearly bring the com-

plaint within the purview of the general federal question statute

and require an examination of the Clean Air Act to determine

A87

whether the claims are we i-founded.’® See Wheeldin v. Wheeler,

373 U.S, 647, 649, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1964);

Powell v. McCormack, 395 U.S. 486, 516, 89 S.Ct. 1944, 23

L.Ed.2d 491 (1969); Gautreaux v. Romney, 448 F.2d 731,

734-735 (7th Cir. 1971).

As previously noted, the court in Natural Resources, set up a

timetable to remedy both the Administrator’s failure to observe

the strict time requirements of the Act and to review the state

plans for adequate maintenance provisions. For all practical

purposes, the statutory timetable has been replaced by that of the

court, at least with respect to Illinois and the other states in-

volved. To refer solely to the original statutory time schedule at

this late date to determine the Administrator’s compliance with

his obligations under the Act is meaningless, for once that time-

table was disregarded, and the time periods specified therein had

elapsed, neither the EPA nor the states could retrieve it.

The timeliness of the Administrator’s performance must now

be judged against the court’s schedule, It should be noted that

the time periods allowed the Administrator by the court to ac-

complish his tasks substantially reflect the comparable periods

set forth in the Act. At the time this action was instituted, the

Administrator was under a duty to promulgate regulations by

December 15, 1973. An extension to February 15, 1974, was

subsequently obtained. Thus, as of the date of suit, the Admin-

istrator was not in breach of his responsibilities under the court

mandate. Moreover, the time schedule created by the court was

entirely consistent with, indeed, more stringent than, that origi-

nally set up in the statute. Under 42 U.S.C. § 1857c-5(c), the

Administrator is accorded six months from “the date required

for [state] submission of [a] plan (or revision thereof)” to pro-

15. Although the Court in Bell v. Hood also noted that a suit

could be dismissed on jurisdictional grounds where the federal claim

is “immaterial and made solely for the e of obtaining juris-

diction or where such a claim is wholly insubstantial anc frivolous,”

327 U.S. at 682-683, 66 S.Ct. at 776, these exceptions to the general

rule do not apply here.

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mulgate an implementation program for those states whose

plans do not meet the statutory criteria. The initial court order

required submission of state plans by April 15, 1973; this date

was subsequently extended to August 15, 1973. Under 42 U.S.C.

§ 1857c-5(c), therefore, the EPA had until February 15, 1974,

to promulgate implementation plans. Thus, even under the

statute, the Administrator was not delinquent, the February date

being six months from “the date required for submission of

[state] plan[s).”

This conclusion is supported by the decision of the court in

Plan for Arcadia, Inc, v. Anita Associates, Civ.No.73-2480-

JWC (C.D.Cal., December 12, 1973), a lawsuit, remarkably

similar to the instant case. There. individual and corporate

plaintiffs, whose environmental interests were similar to those

of the plaintiffs here, brought suit to enjoin further construc-

tion of a shopping center and to compel the Administrator to

formulate an implementation plan for California dealing with

complex sources, The court noted that under the “new time-

table” established by the court in Natural Resources, the time

for promulgation of the requested substitute regulations had

not yet elapsed. Accordingly, the action was deemed to be

premature and was dismissed for failure to state a claim.

That decision i

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