Petition — Beame v. Friends of the Earth

Supreme Court brief1977

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OCTOBER TERM, 1976

ABRAHAM BEAME, MICHAEL J. CODD, ABRAHAM

N. GOODMAN, MOSES L. KOVE, ELINOR GUG-

GENHEIMER, ROBERT A. LOW, ALEX MAUTNER,

VICTOR MARRERO, MORRIS TARSHIS, PAUL

O'DWYER, THEODORE KARAGHEUZOFF, P.£.,

and THE CITY OF NEW YORK,

Petitioners,

-against- |

FRIENDS OF THE EARTH, FRIENDS OF THE

EARTH NEW YORK BRANCH, NATURAL RESOURCES

DEFENSE COUNCIL, INC., SIERRA CLUB,

CITIZENS FOR A BETTER NEW YORK, CITI-

ZENS FOR CLEAN AIR, INC., COMMITTEE FOR

a BETTER TRANSIT, INC., ENVIRONMENTAL

: ACTION COALITION, INC., HARLEM VALLEY

x TRANSPORTATION ASSOCIATION, INSTITUTE

’ FOR PUBLIC TRANSPORTATION, NYC CLEAN

§ AIR CAMPAIGN, NEW YORK STATE TRANSPOR-

i TATION COUNCIL, NORTH EAST TRANSPORTATION

r COALITION, WEST VILLAGE COMMITTEE, DAVID

| SIVE and PAUL DUBRUL,

ay Respondents.

3 PETITION FOR WRIT OF CERTIORARI

or TO THE UNITED STATES COURT OF

‘ APPEALS FOR THE SECOND CIRCUIT

W. BERNARD RICHLAND

Corporation Counsel of the

City of New York

Attorney for Petitioners

Municipal Building

New York, N.Y. 10007

(212) 566-2091

INDEX

Questions Presented <<— <<<-- << 22 oe ee oo

oaae Maas ee and Statutory Provisions--3

Statement © of the Case--------~-----------6

Argument...

CITATIONS

Cases:

District of Columbia v. Train,

: -C. Cir.,1975),

vacated and remanded, U.S. ,

4S U.S.L.W. 4445(No. 75-1055,

May 2, 1977) qceseem omen ee =--=30

Environmental Protection Agenc

Vv. Brown, U.S. 45 U.S.L. a:

4445(75- 050, 75- 960, 75-1050, 75-

1055) (May 2, 1977) ------- -5,6,31,32

Friends of the Earth, et al. v.

Caréy, 6t al, Fr. 2d (75-

TEST), Stip. Op. _, (2nd Cir.

January 18, 1977) ------------24,28

Cases:

Kentu v. Dennison 65 U.S.

(24 How.) 66 negunoncmame o2- = --—

yeesenas League of Cities v. Usery,

U ° > (19 76) — ee

N al Resources Defense Council, Inc.

v. et Protection Agency,

7 4 7 3 o s . ee ee a

Pri v. Pennsylvania, 41.U.S.

eters) 335 (1842) -- amerrul

In re Rahrer, 140 U.S. 545 (1891) ------

Steward Machine Co. v. Davis,

oie ak...

Statutes:

Clean Air Act (42 U.S.C. §1857) et seq.)

Section 110(a) (2) -------------------

Section 113(a) ----------------------

Statutes:

Section: 304

Section 307(b).(1).and(b) (2) 2,4,23,

24,28

40 C.F.R. §51.5(d) 7

40 C.F?.R. §S1L-6 3S.

N.Y. Vehicle § Traffic Law

§§1604, 154Z2—--— - 23.

W.2. State Constitution, rticle 3,

Section 2 ----~-- -—— - 34

Accendices :

I United States Court of Appeals

For Tne Second Circzit, ,

Decision, dated January 13, 1977 — 4.

rr United States Court of Appeals

Por The Second Circuét, |

Order Denying City's Petition For

Rehearing, dated March 4, 1977-------- - 62

iii

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6 ety ena.

a eee TR. APD Te ae Heat SEY RNS SA Serene OO PEs Cr ae. uaa Teena SiN | BS ae Oe NE eee

he Aye > Pen

7 ‘

rrr United States District Court

Southern District of New York

Partial Judgment and Order,

dated April 29, 1976 o---- - 67

IV United States District Court

Southern District of New York, 79

Order, dated February 18, 1977-----

* re eae = oe Ponts ete t's wr eee ME S| ke Ay A ge Cy (ee ee. Pa, ok ge

BL PRS Oh LOE EYE Le eam gee Oe PE SRL AT. Eee ee CR cree ey PR a hee ee aT eS ARN A, SAD

3ay 24 mae ? 4 Tat ti , airy. ‘ F - : - .

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

™

ABRAHAM BEAME, MICHAEL J. CODD, ABRAHAM

N. GOODMAN, MOSES L, KOVE, ELINOR GUGGEN-

HEIMER, ROBERT A. LOW, ALEX MAUTNER,

VICTOR MARRERO, MORRIS TARSHIS, PAUL

O'DWYER, THEODORE KARAGHEUZOFF, F.E.,

and THE CITY OF NEW YORK,

Petitioners,

-against-

FRIENDS OF THE EARTH, FRIENDS OF THE

EARTH NEW YORK BRANCH, NATURAL RESOURCES

DEFENSE COUNCIL, INC., SIERRA CLUB, |

CITIZENS FOR A BETTER NEW YORK, CITIZENS

FOR CLEAN AIR, INC., COMMITTEE FOR BETTER

| TRANSIT, INC., ENVIRONMENTAL ACTION

| COALITION, INC., HARLEM VALLEY TRANSPORTA-

TION ASSOCIATION, INSTITUTE FOR PUBLIC

TRANSPORTATION, NYC CLEAN AIR CAMPAIGN,

NEW YORK STATE TRANSPORTATION COUNCIL,

NORTH EAST TRANSPORTATION COALITION,

WEST VILLAGE COMMITTEE, DAVID SIVE and

PAUL DUBRUL,

| Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT UF

APPEALS FOR THE SECOND CIRCUIT

THE OPINION BELOW

The opinion delivered by the Court of

Appeals upon the rendering of the decree

“ “ ae ogee O# oe

“e Be” ae ae 2 ;

4 « wes ~ GB aah

a} °

oo nee, RS Ae

PER Ree PTT re Mls te PO nr a eg ie OE Gye de ye eS aay eR

~ py olay eer ¢ fg eM 4 =o

rms -

”

sought to be reviewed has not been offi-

cially reported. It is attached hereto as

"Appendix I".

JURISDICTION

The decree sought to be reviewed was

dated and entered on January 18, 1977.

By orders dated March 4, 1977 ("“Appen-

dix II"), respondents’ petition for rehear-

ing and suggestion for rehearing en banc

were Simultaneously denied by the Court of

Appeals.

This Court has jurisdiction to review

the decree in question ie eeit of certiorari

pursuant to 28 U.S.C. §1254(1) and

QUESTIONS PRESENTED

e 1. Whether sections 307(b)(1) and (b)

(2) of the Clean Air Act (42 U.S.C. §1857h-5

(b)(1) and (b)(2)) bar petitioners from as-

Serting constitutional defenses in a citi-

en's suit for the enforcement of transpor-

OTe ES REE or Fea

sought to be reviewed has not been offi-

cially reported. It is attached hereto as

"Appendix I".

JURISDICTION

The decree sought to be reviewed was

dated and entered on January 18, 1977.

By orders dated March 4, 1977 ("Appen-

dix II"), respondents' petition for rehear-

ing and suggestion for rehearing en banc

were Simultaneously denied by the Court of

Appeals.

This Court has jurisdiction to review

the decree in question by writ of certiorari

pursuant to 28 U.S.C. §1254(1) and

QUESTIONS PRESENTED

l. Whether sections 307(b)(1) and (b)

(2) of the Clean Air Act (42 U.S.C. §1857h=-5

(b)(1) and (b)(2)) vn petitioners from as-

serting constitutional defenses in a citi-

zen's suit for the enforcement of transpor-

tation controls submitted by the Governor

of the State of New York to the United

States Environmental Protection Agency?

2. Whether the Clean Air Act may be

interpreted, consistent with the Consti-

tution and principles inherent in a federal

System of government, to compel petitioners

to enforce such transportation controls?

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Tenth Amendment to the Constitu-

tion:

The powers not delegated to the

United States by the Constitution,

nor prohibited by it to the States,

are reserved to the States respec-

tively, or to the people.

Article IV, Section 4 of the Constitu-

tion:

The United States shall quarantee to

every State in this Union a Republican

form of Government, and shall protect

each of them against Invasion; and on

‘Application of the Legislature, or of

the Executive (when the Legislature

cannot be convened) against domestic

violence.

Section 307(b)(1) and (b)(2) of the

Clean Air Act (as added by 84 Stat. 1708

and amended by 88 Stat. 259):

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

of the Administrator in promulgating

any national primary or secondary am-

bient air quality standard, any emis-

sion standard under section 112, any

standard of performance under section

lll, any standard under section 202

(other than a standard required to

be prescribed under section 202(b)

(1)), any determination under section

202(b)(5), any control or prohibition

under section 21l, or any standard

under section 231 may be filed only

in the United States Court of Appeals

for the District of Columbia. A

petition for review of the Adminis-

trator's action in approving or

promulgating any implementation

plan under section 110 or section

lll(d), or his action under section

119(c)(2), (A), (B), or (C) or under

regulations thereunder, 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, 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 enforce-

ment.

PRELIMINARY STATEMENT

This case presents the Court with the

occasion to deal with the issues previously

presented to it’ in EPA v. Brown and its

companion cases, U.S. __s, 44 U.S.L.W.

4445 (75-909, 75-960, 75-1050, 75-1055)

(May 2, 1977) and upon which the Court did

not finallydecide. It presents issues of

the over reaching of federal power and

unauthorized actions of state and local

officials absent any legislative authority.

In Brown the federal government con-

ceded that the Clean Air Act does not

authorize it to coerce a State to imple-

ment a federally imposed transportation

control plan by adopting regulations or

bs)

by passing legislation. In this case the

Court of Appeals has held the opposite and

found that the State and City are irre-

versibly bound to implement the transporta-

tion control plan at issue despite the

need for prior legislative action and the

failure of the governmental officials

submitting the plan to obtain such legis-

lation.

The holding of the Court of Appeals

in this case puts it in direct conflict

with the position taken by the federal

government in Brown and presents the

issue herein “ripe” for review by the

Court.

STATMENT OF THE CASE

(1)

This is an enforcement suit, institu-

ted by respondents pursuant to section 304

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

to compel various State and local officials

to enforce the terms of the "New York City

Metropolitan Area Air Quality Implementa-

tion Plan Transportation Controls," ("“trans-

portation controls"), which were submitted

to the federal government by the Governor

of the State of New York, pursuant to 40

CFR §51.5(d) and section 110(a)(2) of

the Act (42 U.S.C. §1857c-5(a)(2)).

Petitioners are the City of New York and

its executive and legislative officers

now under court mandate to enact and en-

force such transportation controls.

The transportation controls, the en-

actment of which are compelled, set forth

"strategies" purportedly designed to dis-

courage automobile travel to and in one

section of New York City - the Borough of

Manhattan-and thereby to bring air quality

in Manhattan into conformity with standards

promulgated by the Administrator of the

United States Environmental Protection

Agency ("USEPA"). The controls were pur-

ported to be adopted in April, 1973, by

then Governor Rockefeller in consultation

with then Mayor Lindsay and were approved

by USEPA in June, 1973. Neither the

Governor nor the Mayor acted with the

prior legislative authorization of, re-

spectively, the New York Legislature or

the New York City Council. Nor has either

legislative body ever subsequently ratified

the transportation controls or passed legis-

lation authorizing State or City officials

to take the steps required to implement the

strategies.

In July, 1975, the respondents moved

in the District Court for preliminary in-

junctive relief not here relevant. While

that motion was sub judice respondents

moved for partial summary judgment as to

four "strategies" specified in the trans-

portation controls, to-wit:

(a) Strategy B-7, which requires the

tolling of all free bridges crossing the .

Harlem and East Rivers, connecting the

Borough of Manhattan to the other Boroughs

of New York City;

(b) Strategy B-lc, which requires

restrictions on taxicabs cruising in cer-

tain portions of the Borough of Manhattan;

elimination of both off-street and on-street

parking in certain portions of the Borough

of Manhattan; and

(d) Strategy D-3, which requires the

alteration of the pattern of freight de-

liveries to businesses in the Borough of

Manhattan, so as to provide for such de-

liveries after regular business hours.

‘

In August, 1975, before petitioners were

required to answer respondents' motion for

partial summary judgment, the District Court

rendered a decision on respondents' prelimin-

ary injunction motion which included, as well,

a sua sponte denial of the motion for partial

Summary judgment. 401 F. Supp. 1386 (S.D.

N.Y.). Petitioners then moved to dismiss

the action, raising the constitutional argu-

ments more fully explicated hereinafter.

Respondents appealed from the denial

of a preliminary injunction. No appeal was

taken from the denial of the motion for par-

tial summary judgment. The only Notice of

Appeal served and filed was one expressly

addressed to the denial of a preliminary

injunction and dismissing the complaint as

against the New York City Transit Authority.

The issues raised by the motion for partial

summary judgment were not briefed or

oe hae —

argued on the appeal—these issues being ir-

relevant to the only appeal pending. Never-

theless, and notwithstanding the limited ap-

peal, the Court of Appeals, by decision dated

April 26, 1976, went beyond the issues

tendered and ordered the District Court to

enter partial summary judgment on the four

above-described "strategies" in favor of

respondents. 535 F. 2d 165. On April 29,

1976, the District Court, in compliance

with the mandate of the Court of Appeals,

entered such a judgment ("Appendix III").

Indeed, the Court of Appeals by order-

ing partial summary judgment in the manner

described frustrated the petitioners' right

to submit into the record detailed factual

material on all of the issues presented,

including, the disastrous effect which

the transportation controls will have

on the City of New York.

The petitioners petitioned the Court

Of Appeals for a rehearing of its April 26

decision contending that the Court's dis-

position of the case denied petitioners an

Opportunity to litigate the issues raised

by their motion to dismiss, which had been

adjourned by stipulation pending the dis-

position of the appeal by the Court of

Appeals. By order dated June 2, 1976,

the Court of Appeals modified its mandate

to permit petitioners to move before the

District Court to vacate the judgment en-

tered on April 29, 1976, on the consti-

tutional grounds originally asserted in

the motion to dismiss. The petitioners

thereafter moved to vacate in the District

Court. By decision dated July 13, 1976,

that motion was granted to the extent that

the judgment was substantially modified.

422 F. Supp. 638 (SDNY).

Petitioners and respondents ¢ross-

appealed from the District Court's order.

On August 27, 1976, respondents then moved

in the original appeal (i.e., the appeal

decided on April 26, 1976) for the recall

and clarification of the Court's mandate

and the vacatur of the District Court's

order modifying the judgment of April 29,

1976. Simultaneously, respondents peti-

tioned for a writ of mandamus against the

District Judge.

Under the local rules of the Court of

Appeals for the Second Circuit, respondents'

motion to recall the mandate was automati-

cally referred to the same panel of the

court that had originally decided the

appeal. Subsequently, the petition for

a writ of mandamus and the pending cross-

appeals from the District Court's July 13,

1976 decision were consolidated with the

motion. The court received memoranda of

law, but did not hear oral argument. On

January 18, 1977, the Court of Appeals

rendered the decision reinstating the

April 29, 1976 judgment which petitioners

seek to have reviewed by this Court. By

judgment and orders dated February 18,

1977 (“Appendix IV"), the District Court

implemented the mandate of the Court of

Appeals.

(2)

Judge Duffy's order implementing the

mandate of the Court of Appeals requires

the promulgation of complex and detailed

legislative programs by State and City

governmental bodies and officials to

achieve the overriding policy of the

Strategies, i.e., a progressive reduction

in rush-hour entry of automobiles into

the Borough of Manhattan until a fifty

percent reduction has been achieved by

1980 (Appendix IV, pp. 149 and 159).

The means by which the District Court

order seeks to achieve this end are mani-

fold. At the heart of the order and by

far the most drastic means of achieving

such a reduction in auto entries is the

imposition of tolls on the four East River

bridges and the seven Harlem River bridges

which are now free. The order commands

State and City officials to obtain the

necessary legal authority - presumably by

commanding the State and local legislatures

to enact appropriate laws. Construction

of the elaborate and complex toll plazas

is to be completed and in operation by

August 31, 1978 (Appendix IV pp. 104-5),

No mention of or concern with the patently

disastrous economic impact of this tolling

mandate is evident in the Court of Appeals

decision. The Borough of Manhattan and,

indeed, the City of New York rely most

heavily on a minimum of impediments to

the growth of the business and residential

communities within its boundaries. Free

access lies at the heart of this growth.

The bridges are literally and figura-

tively the arteries of the City's commerce -

four of the five boroughs are located on

islands with the bridges as the vital

links between the boroughs for the con-

Ssumers and employees on whom business

depends. The massive traffic snarls and

potential loss of valuable real estate

ratables caused by the tolling strategy and

the construction of toll plazas are also

| not addressed. The impracticality of toll

plaza construction on bridges which were

never designed to accommodate them is

Similarly ignored.

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The order also commands a total ban

on all on-street parking in the "Midtown

Core” area Of Manhattan, stretching from

Thirty-Fourth Street to Fifty-Ninth Street

and from Third Avenue to Eighth Avenue

effective June 14, 1977 (Appendix IV,

pp.135-6). rt also orders a partial ban

on all legal on-street parking in the

"Downtown Core" area encompassing, es-

sentially, all streets south of Canal

Street from the hours of 8 A.M. to 6 P.M.,

effective June 14, 1977 (Appendix IV

pp.138-9 ). Coupled with these specific

area bans on parking are orders imposing a

progressively widening ban on virtually

all on-street parking in Manhattan from

Fifty-Ninth Street south to the tip of the

island and a substantial reduction in

commercially available off-street parking,

with a goal of decreasing such space by

fifty percent. Expanded towing programs

are also ordered, requiring substantial

redeployment of police manpower and pur-

chase of mechanical equipment to increase

the tow-away capacity to 500 vehicles per

day (Appendix Iv, p.136 ),

The thrust of the District Court order

is to compel State and local officials to

reduce that commercial activity in New York

City which is dependent on automobiles

and truck transport. The means employed

is to impose impediments to vehicle use

and to clog the City's arteries with

toll plazas. This order, which jeopardizes

the very existence of the City of New York

as a commercial center, has as its founda-

tion an unauthorized gubernatorial and

mayoral “pact” by a former Governor and

a former Mayor with federal officials to

take effect after their tenures of office

sn ~~ oti ttn

have expired. It compels State and muni-

cipal officers to use their powers in a

manner which is antithetical to their

view of what is essential for a healthy

City and instead to promote their City's

demise.

——

ARGUMENT

The decision of the Court of Appeals

has profound impact upon federal-State

relations generally and upon the mechanics

of the Clean Air Act in particular. If per-

mitted to stand, that decision will cause

Significant interference with the governmental

decision-making of petitioners who, for policy

and economic reasons, have determined that

the transportation control “strategies” re-

commended by former State and local executives

ace infeasible and unwise. In addition, the

decision grossly distorts the powers of the

State Governor by holding that he has the

powec to contractually bind the state and

its localities to policies which the legis-

lature has mot authorized or approved.

New York City is in the throes Of a

severe fiscal crisis, a crisis which devel-

oped after the transportation controis were

agreed to in 1973. As a result of that

crisis, a significant contraction has

occurred in the governmental services

provided by the City. The police depart-

ment, for example, has terminated the

employment of several thousand officers.

The police department is thus required to

confront ever-burgeoning urban crime with

a seriously depleted force. Yet, under the

decision of the Court of Appeals, the City

is barred from objecting to the diversion

of police manpower trom ariticrime activities

to implement traffic enforcement “strategies”

developed four years ago under drastically

different circumstances.

Similarly, the City will be required

to engage in major site acquisition and

capital construction projects in order to

construct bridge toll plazas in accordance

with the decision of the Court of Appeals.

Since the financial markets are likely to

remain closed to the City for some time, the

funding for such projects is simply unattain-

able. Implementation of the “strategy” re-

quiring an alteration in the pattern of

freight deliveries to businesses will like-

wise require the diversion of scarce re-

sources and, perhaps more significantly,

would increase labor costs and have a

deleterious effect on a segment of the

economic base essential to the City's re-

vitalization.

It is a basic proposition of our federal

system that the National Government may not

usurp the local decision-making process in

these areas of governmental concern. See,

e.g., National League of Cities v. Usery,

426 U.S. 833 (1976). Congress certainly

may not, under the guise of implementing

national policy, empower or require State

and local officials to enforce federal law.*

See, e.g., In re Rahrer, 140 U.S. 545, 560

(1891); Kentucky v. Dennison, 65 U.S. (24

How.) 66, 107-8 (1860); Prigg v. Pennsylvania,

41 U.S. (16 Peters) 539, 615-16 (1842).

Nor may the National Government “coerce"

States and localities to implement federal

policy. Steward Machine Co. v. Davis, 301

U.S. 548 (1937).

The decision of the Court of Appeals

does violence to this basic proposition.

| By interpreting section 307(b)(1) and (b)

(2) of the Clean Air Act (42 U.S.C. §§1857h-5

(b)(2)) as a bar to the assertion of con-

¥It certainly cannot be argued that the Trans-

portation Control Plan (TCP) is State Law. No

legislative body approved it; indeed, several

of the strategies, such as imposing tolls on

bridges like the Harlem River bridges (which

are part of parcel of the streets), contravene

State law. See Robia Holding Company v. Walker,

257 N.Y. 431, 438 (1931); N.Y. Vehichle an

Traffic Law §1604, 1642 (McKinney 1970).

stitutional arguments by petitioners, the

Court of Appeals has written into the

statute a binding mechanism which is it-

self constitutionally impermissible. The

Court held that unless a State challenges

its plan for transportation controls within

the thirty-day period prescribed by section

307(b)(1) (42 U.S.C. §1857h-5(b)(1)) there

is a waiver of any constitutional or other

legal defenses to a later enforcement pro-

ceeding.* Friends of the Earth, et al., v.

Carey, et al., FPF. 2d , No. 75-7497,

Slip. Op. pp. 1474-75 (2nd Cir., January

18, 1977). Such a holding violates basic

principles of federalism, since the effect

of the Court's decision is to bind a State

and its subdivision to their initial

Fie note that when the transportation control

plan was approved, there was no way for the

City to anticipate that such approval would

be interpreted so as to irreversibly bind

City officials to implement the strategies.

voluntary commitments, nothwithstanding

that significant changes may thereafter

occur affecting the delivery of essential

governmental services or State policy-

making.

This Court, in Steward Machine Co.

v. Davis, supra, made crystal clear that

federal laws which involve State cooper-

ation withstand constitutional challenge

only so long as the State's freedom to

withdraw from the federal program is

preserved. Steward Machine Co. v. Davis

involved the unemployment compensation

provisions of the Social Security Act

of 1935 (c. 531, 49 Stat. 620). A

federal excise tax was imposed upon cer- —

tain employers, but a credit against

that tax was allowed for taxes paid to

an unemployment fund established by

State law which, in the judgment of the

federal Social Security Board, satisfied

federally-prescribed minimum criteria.

Petitioner, a business located in a State

which had passed such a law in response to

the federal legislation, challenged the

Social Security Act on the ground, inter

alia, that it violated the Tenth Amendment

and principles implicit in a federal

system of government, because the State

law was extracted by economic pressure and

because Alabama was forced to surrender

powers essential to its sovereign existence.

In rejecting the petitioner's argument,

Justice Cardozo observed that to sustain

such a challenge there must be established

the proposition that the federal law opera-

ted as a “|weapon! of coercion, destroying

or impairing the autonomy of the states.”

301 U.S. at 586.

A crucial factor leading Justice

Cardozo to the conclusion that Alabama was

participating of its own free will was that

the Social Security Act permitted a State,

at its pleasure, to repeal its unemployment

statute and thereby relieve itself of the

obligation of satisfying the federally-

prescribed criteria:

Alabama is still free, without

breach of an agreement, to change

her system over night. No officer

Or agency of the National Government

can teres a compensation law upon

her or keep it - existence. te

° cer or agency of that Government,

either Db sate Or other means, can

Supervise or control the application

OF She (unemployment compensation)

payments.

Id. at 595. (Emphasis added) That state-

ment by Justice Cardozo clearly indicates

that, had the federal law not preserved

free choice by the States, there would have

been a conflict with the Tenth Amendment.

Here the conflict does arise because of the

holding of the Court of Appeals that, in

effect, a State and its subdivisions are not

free, once the time limitations for review

under sections 307(b)(1) and (b) (2) have

expired, to withdraw from a transportation

control program initially voluntarily

adopted, i.e., continued state and local

participation is not the product of an

"unfettered will.”

The alternative holding of the Court

of Appeals, that the transportation controls

constitute a "pact" from which neither the

State nor its subdivisions may withdraw,

raises the same constitutional problems.

See Friends of the Earth v. Carey, supra,

Slip. op. at p. 1478. No authority is

cited for the proposition that a “pact”

is implied by law. And petitioners fail

to see how a “pact” may be implied when

there has been no legislative approval of

the plan.

Moreover, even had there been such

approval, the finding of an irreversible

contract is in direct conflict with the

holding of the Court of Appeals for the

First Circuit in Natural Resources Defense

Council, Inc. v. Environmental Protection

Agency, 478 F. 2d 875 (lst Cir. 1973).

That case involved, inter alia, a challenge

to the adequacy of the commitments made

by Rhode Island in its voluntarily adopted

air quality implementation plan. The

Court of Appeals, in ruling the committments

sufficient, found that in our federal system

of government such assurances from the State

could not, in any event, give rise to a binding

"pact":

\G]iven the mechanics of state-

federal relations, it is difficult

to imagine what sort of guarantee

the current Rhode Island executive

or legislature could give the E.P.A.

to insure that adequate resources

would be devoted to the plan. ...

Such assurances might have a symbolic

effect; however, they would have little

more, since a governor or even a present

session of the legislature cannot make

binding commitments on behalf of their

successors, nor would such represent-

ations seem to be enforceable.

Id. at 883-84.*

Indeed i. this case the transporation

control plan was submitted by a former

Governor and a former Mayor without even a

pretext of legislative authority or action.

The plan is best viewed not as a “pact"™ but

as a statement by State and local officials

as to the best way to implement National

policy. It does not embody State law;

rather, it is merely the former Governor's

and former Mayor's idea of the best federal

¥There is also dictum in the decision of the

Court of Appeals in District of Columbia v.

Train, 521 F. 2d 971 (D.C. Cir. ’

vacated and remanded, U.S. , 45

U.S.L.W. 4445 (No. 75-1055, May 2, 1977),

indicating that State adoption of ftrans-

portation controls does not give rise to a

binding commitment. Id. at 982-83.

plan. From this perspective, the plan's legal

force and effect under the Act is limited by

the same constitutional precepts which led the

EPA Administrator to concede that he had no

power to order States and their subdivisions

to adopt laws and regulations. See EPA v.

Brown - U.S. -, 44 USLW 4445, (75-909, 75-960,

75-1050, 75-1055) (May 2, 1977).

In Brown, this court granted certiorari

from four decisions of the Ninth, Fourth and

District of Columbia Circuits. The constit-

utional question raised was whether the Clean

Air Act may constitutionally require States

to pass regulations or legislation to implement

plans imposed by the Federal government.

This Court declined to reach this issue

on the basis of a concession by the federal

government that it had interpreted the law to

contain no requirement that a State pass

regulations to implement its transportation

plan. In the case at bar, inherent in the

transportation control plan is the need for

State legislative enactments to comply with

its requisites. For example, the implementa-

tion of the bridge toll strategies would require

legislation. (See note*, p. 23 infra). The

Court of Appeals, nonetheless, has mandated

compliance by City officials with the trans-

portation control plan despite the absence of

legislative action and the patent inability

of the Governor of the State of New York to

provide or guarantee such legislation.

While this Court in Brown saw that case

suffer a great deal of “shrinkage” before it

got to the Court for consideration, the case

at bar presents the full issue - can

the Clean Air Act be used as authority to

coerce government officials to implement a

a plan, state adopted or federally imposed,

despite their unwillingness to comply? The

Clean Air Act does not differentiate between

a voluntarily adopted state plan and a

federally imposed plan in this respect. (See

section 113(a); 42 U.S.C. §1857c-8(a)(2)).

Just as the federal EPA Administrator has no

such power under the Act, neither do the federal

courts have the power under the Act to force

State and local officials to be the unwilling

servants of National policy.

The Court of Appeals’ interpretation of

the plan as a binding “pact"™ between a former

Governor and Mayor and the federal government

flies in the face of the facts and the law.

Voluntarily bound, a State or City is only

voluntarily committed to comply. Once the right

to withdraw is taken away from the State and

City, as the Court of Appeals has done, the

powers and the independence guaranteed to the

States and its subdivisions by the Tenth Amendmen

to the United States Constitution is destroyed.

Furthermore, the decision of the Court

of Appeals raises questions under Article IV,

section 4 of the Constitution. By virtue of

the provisions of Article 9 section 2 of the

New York State Constitution - a constitution

approved by popular referendum - a municipality

has control of its streets and property, and

may only be required to exercise vowers or

perform duties, other than those which they

self-select, when such duties are imposed

by an enactment of the New York State

Legislature. The Governor as the chief ex-

ecutive officer of the State of New York has

no authority to irreversibly bind the

City of New York to any transportation

control plan affecting the control of city

streets without first securing legislative

authorization.* If the former Governor and Mayor

entered into a “pact” with the federal government

which binds the City of New York, that “pact”

is ultra vires and has absolutely no binding

effect under New York State law.

By holding that the Governor's submission

of the transportation controls under the Clean

Air Act binds the City of New York, notwithstandi

that State constitutional procedures have not

been observed, the Court of Appeals has given

the Executive Branch of the New York State

Government greater powers than those chosen

by the people themselves. Such a ruling

¥*¥This point has apparently been recognized

by USEPA in its regulations setting forth the

administrative details of accepting a State

Plan. 40 C.F.R. §51.6 (1976) provides that

transportation control plans shall be “adopted

by the State and submitted by the Governor."

As noted, the State legislature never adopted

this plan.

—— ——

entails a direct congressional interference with

the State's "republican form of government",

contrary to the Guaranty Clause.

CONCLUSION

For the foregoing reasons, the petition

for a writ of certiorari should be granted.

Respectfully submitted,

W. BERNARD RICHLAND

Corporation Counsel

Attorney for Petitioners

Municipal Building

New York, N.Y. 10007

June, 1977

Friends of the Earth

———_—_

APPENDICES

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Mot ions--September 1976

(Submitted November 1, 1976 Decided

January 18, 1977).

Docket Nos. 75-7497, 76-3054

FRIENDS OF THE EARTH, FRIENDS OF THE EARTH

NEW YORK BRANCH, NATURAL RESOURCES

DEFENSE COUNCIL, INC., SIERRA CLUB,

CITIZENS FOR A BETTER NEW YORK, CITI-

ZENS FOR CLEAN AIR, INC., COMMITTEE

FOR BETTER TRANSIT, INC., ENVIRONMENTAL

ACTION COALITION, INC., HARLEM VALLEY

TRANSPORTATION ASSOCIATION, INSTITUTE

FOR PUBLIC TRANSPORTATION, NYC CLEAN

AIR CAMPAIGN, NEW YORK STATE TRANS-

PORTATION COALITION, WEST VILLAGE

COMMITTEE, DAVID SIVE, PAUL DUBRUL,

Plaintiffs-Appellants,

~against-

HUGH CAREY, ABRAHAM BEAME, DAViD L.

YUNICH, MICHAEL J. COBB, ALFRED

EISENPREIS, MOSES L. KOVE, ELINOR

GUGGENHEIMER, ROBERT A. LOW,

MICHAEL LAZAR, JOHN ZUCCOTTI,

MORRIS TARSHIS, PAUL O'DWYER,

J. DOUGLAS CARROLL, JR., WILLIAM

J. RONAN, THEODORE KARAGHEUZOFF,

P.E., JAMES MELTON, OGDEN REID,

STATE OF NEW YORK, CITY OF NEW

YORK, NEW YORK CITY TRANSIT

AUTHORITY,

Defendants-Appellees.

-and-

RUSSELL E. TRAIN,

Defendant.

FRIENDS OF THE EARTH, FRIENDS OF THE EARTH

NEW YORK BRANCH, NATURAL RESOURCES

DEFENSE COUNCIL, INC., SIERRA CLUB,

CITIZENS FOR A BETTER NEW YORK, CITI-

ZENS FOR CLEAN AIR, INC., COMMITTEE FOR

BETTER TRANSIT, INC., ENVIRONMENTAL

ACTION COALITION, INC., HARLEM VALLEY

TRANSPORTATION ASSOCIATION, INSTITUTE

FOR PUBLIC TRANSPORTATION, NYC CLEAN

AIR CAMPAIGN, NEW YORK STATE TRANS-

PORTATION COUNCIL, NORTH EAST

TRANSPORTATION COALITION, WEST VILLAGE

COMMITTEE, DAVID SIVE, PAUL DUBRUL,

Petitioners,

~against-

HONORABLE KEVIN T. DUFFY, United States

District Judge for the Southern

District of New York,

Respondent.

Before:

MANSFIELD, TIMBERS and MESKILL,

Circuit Judges.

Motion by plaintiffs-apvellants to

recall this Court's mandate of April 26,

1976, as modified on June 2, 1976,

directing the United States District

Court for the Southern District of New

York to enforce four pollution-control

Strategies of the Transportation Control

Plan for the Metropolitan New York City

Area and to vacate an order of the

district court, Kevin T. Duffy, Judge,

dated July 13, 1976, holding that the

Plan was enforceable against the State

and City of New York only as direct

poliuters but that they were not obli~

gated to enforce the Plan against others

using roads, bridges or facilities con-

trolled by the State or City. With the

motion were consolidated a petition by

appellants for a writ of mandamus claim-

ing violation of this Court's mandate

and a direct appeal from the district

court's decision and order.

The motion and petition are granted.

The district court's decision is vacated

with direction to enforce the Plan as

Originally interpreted by this Court.

DAVID SCHOENBROD, Esqs., Ross Sandler,

Esq., Eric A. Goldstein, Esq.,

New York, N.Y., for Plaintiff-

Appellant Natural Resources Defense

Council, Inc.

W. BERNARD RICHLAND, Corporation

Counsel, New York, N.Y. (Alexander

Gigante, Jr., Esq., New York, N.Y.,

of counsel), for City Defendants-

Appellees.

PETER R. TAFT, Assistant Attorney ;

General, Edmund B. Clark, Attorney

Neil T. Proto, Attorney, Michael

D. Graves, Attorney, Department

of Justice, Washington, D.C.

(Gerald K. Gleason, Deputy Associ-

ate General Counsel, Environmental

Protection Agency, Washington,

D.C., Of counsel), for Defendant

Russell E. Train.

MANSFIELD, Circuit Judge:

For the third time the Transportation

Control Plan for the Metropolitan New York

Area (“the Plan”), a plan for control of

that area‘s automobile pollution, submit-

ted by the State of New York (“the State”)

to the Environmental Protection Agency

(“EPA“) pursuant to §110(a)(1) of the

Clean Air Amendments of 1970, 42 U.S.C.

§1857c-5(a) and approved by it, is before

this Court. In 1974 we upheld the vali-

dity of the Plan in all material respects,

see Friends of the Earth v. EPA, 499 F.

2d 1118, 1126 (2d Cir. 1974) (“Friends.

I“), and on April 26, 1976, we tfeversed

a decision of the Southern District of

New York denying enforcement of the Plan

in a citizen suit instituted under the

Clean Air Act and ordered that partial

summary judgment be granted in favor of

ee enforcing four strategies of

the Plan, as to which the defendants

were admittedly in default, see Friends

of the Earth v. Carey, 535 F. 2d 165

(2d Cic. 1976)("“Priends II"). We noted

that the defendants’ implementation of

the Plan was already almost a year in

default, that carbon monoxide pollution

in New York City had climbed to five

times the federal health standards,

and that this Court could not “consist-

ently with its duty be a party to the

delaying process that has led to this

These strategies are: reductions in

business district parking, selective ban

on taxicab cruising, tolls on the East

and Harlem River bridges, and night-

time freight movement programs. At the

time of this suit the State had con-

sented to the imposition of eight other

strategies, including emissions

inspections, mechanic training, enforc-

ing existing traffic regulations,

traffic management, increased express

bus services, and retrofit of trucks.

Situation.” We ordered that consideration

of the case on remand be given priority.

On April 30, 1976, Judge Kevin T.

Duffy of the Southern District of New

York, at first following our mandate,

ordered implementation and enforcement

of the four pollution-control strategies

before the court and required a detailed

schedule of compliance. When our atten-

tion was directed in a petition for

rehearing by the City of New York ("the

City") to the fact that the defendants

desired to caise constitutional issues

with respect to the Plan which had not

previously been considered, we on June 2,

1976, denied the petition but

"without prejudice to considera-

tion by the United States District

of New York of constitutional

issues not decided prior to the

entry of the order which was the

subject of the notice of appeal

» « « @nd without prejudice to

the right of the defendants to

move in the said District Court

to set aside the order of the

District Court dated April 30,

1976, on the aforesaid consti-

tutional grounds.”

In go ruling we did not authorize the

district court to engage in reinter-

pretation that would contradict our

own prior considered construction of

it oc our determination as to the

scope of enforceability.

After hearing argument on the

constitutional issues Judge Duffy on

July 13, 1976 modified the partial

summary judgment previously granted

by interpreting §304 of the Act, 42

U.S.C. §1857h-2, as permitting enforce-

ment of the Plan against the State or

its subdivisions (including the City)

only to the extent that they might

be direct polluters but not as

obligating them, although they were the

architects and sponsors of the Plan,

to implement it against others despite

the fact that they had agreed to do so

‘under the terms of the Plan and they

controlled, operated, and managed the

roads and facilities upon which the

polluting activities by others tien

His interpretation of §304 was based on

the theory that Congressional use of the

Commerce Clause to compel the City to

enforce the Plan against others would

violate the City's rights under the

Tenth Amendment, as recently expounded

by the Supreme Court in National League

of Cities v. Usery, U.S.

44 U.S.L.W. 4974 (June 24, 1976), and

2 Judge Duffy certified the deci-

sion for interlocutory review pursuant

to 28 U.S.C. §1292(b). On August 18,

1976, a Court of Appeals panel denied

appellants leave to appeal.

by several other circuits in decisions

holding that Congress may not order a

state to draft an implementation plan or

to enforce an EPA-promulgated plan. See

Brown v. EPA, 521 F. 2d 827 (9th Cir.

1975), cert. granted, 44 U.S.L.W. 3681

(June 1, 1976); District of Columbia v.

Train, 521 F. 2d 971 (D.C. Cir. 1975),

cert. granted, U.S. , 44

U.S.L.W. 3682 (June 1, 1976); and

Maryland v. EPA, 530 F. 2d 215 (4th Cir.

1975), cert. granted, U.S. P

44 U.S.L.W. 3682 (June 1, 1976). Relying

heavily upon these decisions, the district

court all but emasculated the Plan as an

enforceable instrument.

Following Judge Duffy's decision,

appellants promptly moved in this Court

for the recall and further modification

of our April 26, 1976, mandate as it had

-_— ct 7) Pee ey . ~<

been modified on June 2, 1976, and to

vacate the district court's decision.

Plaintiffs also petitioned us for a writ

of mandamus against Judge Duffy, based

on the claim that his decision violated

Our mandate and abused his discretion,

which was consolidated with plaintiffs'

direct appeal under 28 U.S.C. §1291

from the district court's decision.

For the reasons that follow, we

find that the district court's July 13,

1976, decision violated our mandate and

abused that court's discretion. Accord-

ingly we vacate that decision. We

further direct that the district court's |

summary judgment of April 30, 1976, be

reinstated and that such further relief

be issued as is required to enforce the

four strategies.

A brief review of the litigation sur-

rounding the Plan is necessary to fully

understand the issues now before us. As

amended in 1970, the Clean Air Act, § 101(b)

(1), 42 U.S.C. §§1857, et seg., contains a

comprehensive regulatory scheme designed

to promote public health and welfare by

reducing air pollution caused by various

sources controlled or regulated by the

State, including motor vehicles operated

on its state highways, bridges, and other

facilities. Acting pursuant to the Act

the Administrator of the EPA has estab-

lished standards governing maximum con-

centrations of specific pollutants in the

air. Under the Act, state and local

governments assume the primary responsi-

bility for establishing and implementing

air quality control programs to meet

these standards, § 107(a), 42 U.S.C.

§ 1857c-2. Section 110(a)(1) of the

Act, 42 U.S.C. § 1857c-5(a)(1), requires

each state to submit to the EPA a plan

for “implementation, maintenance, and

enforcement” of these standards, which

the EPA must approve if the plan satis-

fies the statutory criteria, see § 110(a)

(2), 42 U.S.C. § 1857c-5(a)(2). If a

state fails to submit a plan or if its

plan fails to meet the criteria, the

EPA is obligated to prepare and promul-

gate a substitute plan for that state,

§ 110(c), 42 U.S.C. §1857c-5(c)(1),

which may be enforced by the EPA.

On April 30, 1971, the EPA Admini-

Sstratorc promulgated national primary and

secondary air quality standards for six

pollutants, following which each state

was obligated under the Act to submit

its implementation plan for these pollu-

tants, including transportation controls

necessary to attain primary air quality

standards. If a state did not submit a

plan of its own, it faced the promulga-

tion and enforcement by the Administrator

of an EPA-prepared plan. The State of

New York, with the assistance of the De-

partment of Air Resources of the New

York City Environmental Protection Admini-

Stration and other city agencies, prepared

and promulgated the Plan here at issue

to meet the primary standards for carbon

monoxide, hydrocarbons, oxidants, and

nitrogen dioxide in the New York City

Metropolitan area. The Plan, containing

3° The Plan refers at the outset to the

“cooperation and extensive effort” of the

New York City agencies in its preparation,

stating:

“Preparation of this plan has

soqeneoe cooperation and extensive

effort by many individuals and

agencies. In particular, staff

of the Department of Air Resources

of the New York City Environmental

Protection Administration made a

major contribution through expert

dedicated effort. Other city,

state, and regional agencies

provided valuable assistance.”

In his letter dated April 17, 1973, sub-

mitting the Plan to Hon. William D.

Ruckelshaus, Administrator of the EPA

for approval, Governor Nelson A. Rocke-

feller stated that “The City of New

York has worked with us in developing

this plan” and quoted a letter received

from Mayor John V. Lindsay, dated April

16, 1973, which, while expressing reser-

vations as to the City's capability of

financing the costs of implementing

the Plan, stated that “New York City

is committed to meeting Federal air

standards under the Clean Air Act of

1970," that “We have cooperated in the

development of the New York City

Metropolitan Airc Quality Implementation

Plan proposed by the State and are

convinced that the plan accurately

reflects the scale of effort and types

32 specific strategies, is designed to meet

Of measures which must be undertaken to

meet the 1975 air standards.” Mayor

Lindsay further stated, “We must make a

sincere effort over the coming months

to examine the public costs and explore

appropriate new revenue sources. Upon

Federal approval of the plan and a

commitment of adequate fiscal resources,

the City will support and will move to

implement the me sures necessary to meet

the Federal requirements for cleaner

air.”

Governor Rockefeller‘s letter of sub-

mission further advised the Administra-

tor of EPA that “To carry out the

Pederal mandate set forth in the Clean

Air Act of 1970, the State and the

City have no alternative but to imple-

ment the following primary ‘strategies’

(actions under the overall plan) as

rapidly as possible“. There follow a

list of strategies which include those

which were the subject of the order

here at issue. The Governor further

advised that he was submitting to the .

New York State Legislature bills to

implement some of the strategies, that

“The State and City of New York

are ready to commit to major

innovations to reduce the pollu-

tion from transportation sources

in the metropolitan area. Both

the City and the State, however,

will require new funding to

support this program--both money

to administer the program and

assistance in making capital

"primary ambient" (outdoor surrounding air)

standards and to attain “secondary ambient"

standards “requisite to protect the public.

welfare from any known or anticipated ad-

verse effects associated with" air pollu-

tion. The Plan was submitted to the EPA

after public notice and hearings, and was

approved by the EPA on June 22, 1973, with

investments necessary to bring about

required improvements in mass transit.

"Congress has mandated; Congress

should also provide necessary funds.

An important facet of this action

by Congress should be to allow urban

states to use their share of highway

trust funds for mass transit."

certain revisions.

In 1974 some of the plaintiffs in

this action sought review of the Plan

pursuant to § 307(b)(1) of the Act, 42

U.S.C. §1857h-5(b)(1), on the grounds

that it was vague and inadequate and

that the State has failed to provide

“adequate assurances” that there would

4 We considered the principal New York

implementation plan in Natural Resources

Defense Council v. EPA, 494 F. 2d 519

(2d Cir. 1974). However, that plan did

not include the transportation plan at

issue in the present case because the

Administrator had granted an extension

of the date for the submission of the

plans, and the date of compliance with.

applicable standards was extended to

May 31, 1977. Subsequently, the

District of Columbia Circuit in Natural

Resources Defense Council v. EPA, 475

F.2d 968 (1973), invalidated that

extension and the date for submission

of the State of New York plan was set

at April 15, 1973, with the date of

compliance with air quality standards

set at May 31, 1973. See Friends of

the Earth v. EPA, 499 F.2d 1118, 1121

(2d Cir. 1974).

be sufficient funds to implement it. The

State joined the EPA in defending the

Plan, which we upheld in all substantive

respects. Among other things we directed

the Administrator to "provide a detailed

document of this rationale” as to the

basis for the EPA's determination that

adequate State resources had been com-

mitted to the Plan. Friends I, 449 F.

2d 1118, 1126 (2d Cir. 1974). We declined

in that action to order immediate imple-

mentation of the Plan for the reason that

jurisdiction in the suit rested on

§ 307(b) (1) of the Act, which is re-

stricted to reviewing the correctness

of the Administrator's approval of a

State plan. We noted, however, that

§ 304 of the Act was available to citizens

to bring suit in the district court to

enforce implementation of the Plan in the

the event of the failure of the State to

do so,

In Friends II, supra, the present

plaintiffs brought suit pursuant to § 304

of the Act, 42 U.S.C. §1857h-2, which pro-

vides that

> pecson may commence a

civil action on his own

behalf--(1) against any

person (including (i) the

United States, and (ii) any

other governmental instru-

mentality or agency to the

extent permitted by the

Eleventh Admendment to the

Constitution) who is alleged

to be in violation of (A)

an emission standard or

limitation under this chapter

orc (B) an order issued by

the Administrator or a State

with respect to such a

standard or limitation...."

The section defines the term “emission

standacd or Limitation" to include “a

schedule or timetable of compliance

.«» which is in effect under this

chapter ... or under an applicable

implementation plan.”

We held in friends II that the

City and State were required to imple-

ment the four strategies which were

before the court, concluding that after

our prior review of the EPA's approval

of the State-promulgated Plan it became

“controlling and must be carried out

by the state” and “binding upon and

enforceable against state and local

officials.” 535 F.2d 169, 170. We

examined the citizen suit provisions

of the Act, § 304, and concluded that

the district court could not escape

enforcing the Plan on the grounds that

the EPA was negotiating with the State

concerning the Plan or that the task

of enforcing the Plan would be unduly

burdensome to administer, stating:

“The plaintiffs’ right under the

Act to seek such an enforcement

order is beyond challenge. . .

They have fully discharged their

responsibility to provide stat-

utory notice..... We cannot

disregard the frank statement

made by New York State's Assist-

ant Attorney General some two

years ago, that this “is a

legally enforceable plan... a

legally adequate plan,' and that

‘{iJf there is a valid legal

ground for. . .a refusal [to

enforce the Plan], we have not

been able to find it...”

535 F. 2d at 178-80.

We held that the district court had “abused

its discretion” in “denying citizen en-

forcement of the lawfully established

Plan,” and we mandated immediate relief.

Upon remand the district court, in its

decision of July 13, 1976, held that the

City was not barred from advancing argu-

ments against enforcement by the 30-day

limitation of § 307(b)(1) of the Act, 42

U.S.C. § 1857h=-5(b)(1), stating:

“(T]he plaintiffs mistake the nature

of the City's motion. The motion

does not seek to challenge the action

of the Administrator in approving

the [Plan]; rather it challenges

the interpretation of §304 by plain-

tiffs and is properly raised in

this proceeding. Moreover, as noted

above, the Court of Appeals in its

denial of the City's motion to rehear,

endorsed the City's right to make

the present motion.”

Thus, notwithstanding our decision that

the State-promulgated Plan “became bind-

ing upon and enforceable against state

and local officials” through a citizen

Suit pursuant to §304, the district

court concluded that our mandate did

not preclude it from determining “Who

must enforce the plan and against whom

it may be enforced.” Judge Duffy then

concluded that the Act did not obligate

the State and its subdivisions to en-

force it, even though they had prepared

it, promulgated it, represented in it

—

that the Plan would be enforced by the

State and City through their agencies,

and on that basis had sought and ob-

tained EPA approval of it.

In interpreting §304(a) of the Act,

42 U.S.C. §1857h-2(a), as authorizing

citizen suits against states and their

subdivisions only for non-compliance

based on their own actual pollution

rather than upon their failure or re-

fusal to enforce a state-promulgated

plan, Judge Duffy reasoned that to

interpret the Act as permitting a citi-

zen or the EPA to obtain a court order

requiring the State or City to enforce

a state-promulgated plan approved by

‘the EPA would pose the same constitu-

tional hurdles as those suggested in

Brown v. EPA, 52i F.2d 827 (9th Cir.

1975), cert. granted, 44 U.S.L.W. 3681

(June 1, 1976), and District of Columbia

v. Train, 521 F.2d 971 (D.C. Cir. 1975),

cert. granted, 44 U.S.L.W. 3682 (June

l, 1976), where the courts held that

unless the Act was interpreted to pre-

clude the federal government from

imposing sanctions on a state or its

officials for failure to implement

or enforce EPA-promulgated anti-pollu-

tion regulations, the use of the federal

commerce power to do so might violate

the Tenth Amendment and the Constitu-

tion's guarantee of a republican form

of governmer.it to the states, Const.

“5 Two factually and legally similar

cases are Maryland v. EPA, 530 F. 2d

215 (4th Cir. ), cert. granted,

44 U.S.L.W. 3682 (June 1, 1976), and

State of Arizona v. EPA, 521 F.2d

825 (9th Cir. 1975), cert. granted

44 U.S.L.W. 3681 (June 1, 1976).

Art. IV, §4. Said the district court:

"Once a plan has been approved by the

Administrator it is in the same posture

as a plan which the Administrator has

promulgated for the purposes of en-

forcement ....

"In view of the fact that the TCP

[the Plan] was submitted by the

Governor alone without any legisla-

tion ... it cannot be said that any

binding commitment to enforce the

plan was ever made by Governor alone

without the state. Thus, the Governor's

submission was the functional equiv-

alent of the suggestions of an

interested party at hearings the Ad-

ministrator might have held on his

own plan."

Judge Duffy concluded that “The only

option available to the Administrator

when the state does not enforce a plan

is to enforce the plan himself and to

sue the actual polluters or violators

of the plan's requirements."

“6 The district court analyzed each

of the four strategies under considera-

tion in the case to determine the

extent to which it imposed duties upon

the State as a direct or indirect

polluter, rather than requiring the

State to enforce strategies against

Appellants contend that the district

court's decision and holding violate our

Citizen polluters. With respect to

the Central Business District Parking

strategy, the court found enforceable

the State's incentive program for private

garage owners to abandon their facilities,

the State's plan to purchase private

garages, and certain planning and data

collection programs to be undertaken by

the City and State. The court found that

reduction of on-street parking and a 2

freeze on new permits for off-street

garages would be permissible.

With respect to the Taxi-Cruising

Limitation strategy, the court found that

data collection, public education programs

and plan formulation were outside the

scope of a proper order, but that a plan

to restrict taxi licensing-might be

enforceable. The After-Hours Delivery

strategy, designed to limit deliveries

during heavy-traffic hours, was held en-

forceable only to the extent that the

defendants themselves were deliverers

or receivers of goods. Finally, with

respect to the imposition of tolls on

the East and Harlem River bridges,

designed to discourage automobile traffic

from entering Manhattan, the district

court found that the State could not be

required to construct toll facilities,

and it accepted the position of the

Federal Highway Administrator that at

least four of the bridges, constructed

with federal funds, could not be tolled

by the State. However, in a later

April 26 and June 2 mandates, and is con-

trary to controlling legal principles.

We agree.

DISCUSSION

At the outset we face the question of

whether the City has standing to claim

that enforcement of the State-promulgated

Plan represents an unwarranted invasion

of its sovereignty in violation of the

Tenth Amendment. Appellants argue that

since the Tenth Amendment protects only

state governments the claim may only be

asserted by the State, which has not

challenged the enforcement of the Plan

opinion letter dated June 28, 1976,

which was submitted to the district

court by the United States Attorney's

Office, this time the General Counsel

of the Department of Transportation, the

Federal Housing Administrator's superior,

advised that there is no federal bar to

tolling the four bridges as part of a

traffic control program pursuant to the

Clean Air Act.

against it, and not by the City. We

disagree.

The City claims that a judgment

directing it to enforce the Plan would

interfere with its governmental inte-

rests in allocating funds, police

resources and in making policy deci-

sions. In its recent decision in

National League of Cities v. Usery,

44 U.S.L.W. 4974 (June 24, 1976), the

Supreme Court held that Congress is

prohibited by the Tenth Amendment from

using its power under the Commerce

Clause to impair “attributes of sover-

eignty attaching to every state |

government” and that these attributes

extend to a state's political subdi-

visions, including local governmental

units. Said the Court: “Interference

with integral governmental services

provided by such subordinate arms of a

state government is therefore beyond

the reach of Congressional power under

the Commerce Clause just as if such ser-

vices were provided by the state itself.”

Id. 4980, n. 20. The Court further made

it clear that the federal Commerce Clause

may not “impermissibly interfere with

traditional governmental functions,” which

were defined to include “such areas as

fire prevention, police protection, sani-

tation, public health and parks and

recreation,” 44 JU.S.L.W. 4979.

Applying these standards, the City's

claim satisfies traditional notions of

standing since the City is allegedly

threatened with injury to its govern-

mental interests and is within the class

of entities which the Supreme Court has

held to be protected from incursions of

x nee

federal power. See Warth v. Seldin, 422

U.S. 490, 498-502 (1975). Where a state

has delegated to a city as one of its

subdivisions the furnishing of services

which constitute part of traditional

governmental functions, the city has

Standing to raise a claim of impermissi-

ble interference with “those fundamental

decisions upon which their systems for

performance of these functions must

rest...." National League of Cities v.

Usery, supra, 44 U.S.L.W. at 4979.

Nor does the City lack standing be-

cause of the failure of its creator, the

State, to join in its claims. It is true

that the State has not only failed to

join the City in asserting the latter's

defenses to enforcement of the Plan but,

to the contrary, has defended the Plan

and concedes that it is enforceable

against it. However, we are not faced

with a situation in which enforcement is

sought solely against the State, or with

a challenge by the City directed against

a State-implemented statute, in either of

which events the City might lack standing,

see, e.g., New York v. Richardson, 473 F.

2d 923 (2d Cir.), cert. denied, 412 U.S.

950 (1973). Instead, this enforcement pro-

ceeding is directed against the City and

its officials. To the extent that the State

has delegated certain sovereign powers to

the City and left it up to the City to

comply with the Plan, the State's failure

to join in the City's claim does not

eliminate the City‘s claim that it will

be directly injured in the performance

of governmental functions by the allegedly

impermissible exercise of federal power.

The City therefore has standing.

Appellants next contend that the dis-

trict court should have denied the City's

motion to vacate the partial summary judg-

ment previously entered against it on the

ground that the City was precluded from

making the motion by §307(b)(2) of the

Act, which bars any defense in an enforce-

ment proceeding for “which review could

have been obtained” in a petition for

review of the Administrator's approval

of a plan. Appellants contend that the

arguments that enforcement of the Plan

would violate the City‘s Tenth Amendment

rights and that the Plan should be ~

enforceable only against the State and

City as direct polluters, could have

been raised by a petition for review

filed by the City within 30 days after

the Administrator's approval of the

Plan and cannot therefore be asserted

at this late date.

The purpose of § 307 was to assure

that once an implementation plan had

been promulgated by a state and approved

by the EPA and a reasonable time had been

allowed for affected parties to seek by

way Of a petition for review to have it

modified or nullified, it would have

finality and become enforceable. If

states and their subdivisions, after

preparing and through their responsible

executives accepting the obligation of

enforcing eplementation plans under

the Act, were allowed to disregard their

commitments and to renege upon the obli-

gations undertaken by them, the plans

would amount to nothing more than volun-

tary, unenforceable declarations of

principles. Congress was authorized by

the Commerce Clause, and clearly intended,

to accomplish more. As Senator Muskie,

the floor manager of the Senate version

of the Act stated, “Federal enforcement

under section 113 leaves the primary

responsibility with the States for en-

forcing requirements under implementation

plans,“ 116 Cong. Rec. 42385 (1970).

In order to protect public health

effectively Congress provided that such

plans, after fair allowance for due

process, would be enforceable. For

these reasons §307 has been upheld as

a bastion of enforceability. See Union

Electric Co. v. EPA, 44 U.S.L.W. 5060

(June 25, 1960); Oljato Chapter of

Navajo Tribe v. Train, 515 F.2d 654

(D.C. Cir. 1975); Getty Oil Co. v.

Ruckelshaus, 467 F.2d 349 (3d Cir.

1972), cert. denied, 409 U.S. 1125

(1973).

Were we now confronted with a

claim that the State and City had

until recently been unaware of the

scope, terms and reach of the Plan

or of the scheme for its enforcement

and hence were not in a position

sooner to question its constitutiona-

lity or interpretation, the defenses

now belatedly invoked by the City

might conceivably be entertained. In

contrast, the picture before us is one

where the City, having voluntarily

cooperated with the State in the draft-

ing and promulgation of the very

strategies now attaeked by it, seeks

in effect to renege on its own creation

and commitment.

The architects of the Plan were not

Congress or the EPA but the State and

City of New York. Rather than permit

the EPA to draft and implement a plan,

which would have occurred if the State

had defaulted in doing so, the State

and City long ago chose to exclude the

EPA from the policy-making process and

to draft the Plan themselves subject

only to EPA review and approval. In

clear and unmistakeable terms the Plan

obligates them to carry out the very

strategies which the City now contends

that it cannot be ordered to enforce.

Indeed, the Plan repeatedly refers to

and lists the different State and City

departments and agencies that are to

implement these strategies, including

the borough governments, the Interstate

Sanitation Commission, Port of New York

Authority, Triborough Bridge and Tunnel

Authority, New York State Thruway Author-

ity, New York City Fire and Police

Departments, New York City Hospital and

Ambulance Operators, and Metropolitan

Transportation Authority. Moreover, the

record shows that the City's EPA Admini-

Strator was advised in September 1973 by

one of the City's counsel that the Plan

was enforceable against it.

There is no suggestion that upen the

State's submission of the Plan to the

Administrator of the EPA in 1973 for

approval the City, if it had wished to

avoid the obligations which it had volun-

tarily assumed as a subdivision of the

State, could not have advised the Admini-

Strator that it had changed its mind and

did not propose to be responsible for

carrying out the strategies which, accord-

ing to the Plan, were to be implemented by

it. Indeed, even after the approval of

the Plan by the Administrator, the City

could within 30 days have filed a petition

for review, advancing its present conten-

tions to the effect that the Plan, insofar

as it provided for implementation of

certain strategies by the City or its

agencies, be revised or modified to re-

lreve it of any obligation to enforce the

Plan‘s strategies against others.

Had the City taken such action, the

Administrator might well have disapproved

the plan on the ground that its provisions

for implementation and enforcement were

illusory and therefore did not meet the

criteria specified in § 110(a) (2) of the

Act, 42 U.S.C. § 1857c-5(a) (2). If the

ree F

Administrator had nevertheless approved

the Plan, the court upon a petition for

review, would have been obligated to

consider whether the Plan was, for the

constitutional reasons now advanced by

the City, unenforceable as written and

decide whether the Administrator was

required to approve it under § 110(a)

(2). See Train v. Natural Resources

Defense Council, 421 U.S. 60, 79 (1975);

South Terminal Corp. v. EPA, 504 F. 2d

646, 676-80 (lst Cir. 1974). Had the

Administrator disapproved the Plan or

the court set aside his approval of it,

the Administrator would then have had the

opportunity to take appropriate action,

including the promulgation of an EPA-

formulated plan in lieu of the Plan here

under consideration, which the EPA could

then have enforced. At this date, almost

four years after the Administrator's

approval of the Plan, to permit the City

to renege upon its commitments would

defeat the purpose of the Act, which is

to protect the public health.

Since the City could have advanced

its present contentions by way of a peti-

tion for review of the Administrator's

approval of the Plan in 1973 and chose

instead voluntarily to commit itself to

enforcement of the Plan, we hold that

the City has waived its right to assert

these contentions and is precluded by

§ 307(b) (2) of the Act from raising

them in an enforcement proceeding insti-

tuted under § 304. See Vargas v.

Trainor, 508 F. 2d 485 (7th Cir. 1974),

cert. denied, 420 U.S. 1008 (1975)

(waiver by state welfare official of

state's Eleventh Amendment rights).

Our modification of our mandate to permit

the City to raise constitutional issues

was not designed to permit the City to

attack the Plan on grounds which amount

to an about-face of its own endorsement

of the Plan and which could have been

raised by it years ago.

Nor can the City at this late date

escape the obligations voluntarily under-

taken by it on the ground that the Plan

failed to furnish adequate assurances

that the State would have the necessary

personnel and funding to carry out imple-

mentation. The State has not been heard

to assert this or any other argument as

a basis for abek fet tes the Plan. Nor

has the State sought to avoid responsibi-

lity for its enforcement. On the contrary,

it has acknowledged the enforceability of

, the Plan. See Friends II, supra, at 170,

179-80. We would not be justified, there-

fore, in assuming that the necessary

legislative and budgetary steps will not

be undertaken. to carry out the Plan.

Should the State conclude that the

Plan should be revised, it may sub-

mit such revisions as are necessary

to the Administrator for approval

under § 110(a)(3) of the Act.

Even if we were to assume that

the City had not waived the claims

asserted by it upon remand and was

not precluded by §307 from asserting

them, we would be forced to conclude

that the district court erred in

holding that the State and its poli-

tical subdivision, the City, were not

obligated to enforce the Plan. The

language of the Plan itself makes it

clear beyond any reasonable doubt that

both the State and City represented that

their responsible officials would carry

out each of the detailed strategies out-

lined in the Plan, using the State and

City personnel and facilities described

in the Plan. Indeed the Plan, which was

prepared by the New York State Department

of Environmental Conservation with parti-

cipation by New York City's Environmental

Protection Administration, was submitted

by the Covernor of the State of New York

to the EPA Administrator for approval.

In effect, the district court held

that after a state, with the participa-.

tion and cooperation of its political

subdivision, drafts and submits to the EPA

for approval an implementation plan (1)

which complies with the criteria of § 110

of the Act, (2) which is approved by the

Administrator as required by the Act,

see Union Electric Co. v. EPA, supra, (3)

which has the effect of foreclosing formu-

lation and imposition of a substitute

federal plan, see Natural Resources Defense

Council v. Train, Supra, and (4) which

is acknowledged by the state to be enforce-

able, the subdivision may nevertheless

renege on enforcement of the Plan on the

ground that it would prefer to use its

scarce resources for other purposes despite

a statutory scheme which contemplates

mandatory enforcement. See Natural

Resources Defense Council v. Train, supra.

This decision is directly contrary to our

holding that “acceptance by the EPA and |

judicial ratification by this court"

resulted in the Plan becoming “binding

upon and enforceable against state and

local officials, subject only to the narrow

revision and postponement provisions

allowed by the Act." We held that "Once

a citizen suit to enforce an EPA-approved

State implementation plan has been properly

commenced, the district court is obligated

- « « to issue appropriate orders for its

enforcement.”

The authorities relied upon by the

district court as the basis for departure

from our mandate, Brown v. EPA, supra,

are clearly inapplicable to this case. In

each of those cases, as well as in State

of Maryland v. EPA,'supra, and in State of

Arizona v. EPA, supra, the EPA, a federal

agency, sought to compel states or their

political subdivisions to take steps |

(including appropriation of funds, adop-

tion of legislation and use of state

agencies and police) to implement and

enforce a plan formulated by the EPA

without any participation on the part

of the state or any authorization of or

consent to implementation or enforcement

by the state. The basic question raised

by these decisions, as to which we intimate

no view, was whether the federal government

might, without violating the state's Tenth

Amendment rights, impose upon a state

government a series of federal policy de-

cisions concerning control of transporta-

tion-related pollution, and through

imposition of sanctions require the state

to enect and enforce appropriate measures

essential to carry out the federal plan.

The courts in those cases interpreted the

Act as not permitting such intrusion by |

the federal government into state sover-

eignty except to the extent that the

pollution might be caused solely by a

source or activity controlled by the

State (e.g., state-owned vehicles or

incinerators) since the state otherwise

might be deprived of control over the

extent and manner in which their bee.

revenues could be spent and thus be turned

into instruments for implementation of _

federally-dictated policies at variance

with their own. All of this, it was indi-

cated, might violate the states' Tenth

Amendment rights or their right to a

republican form of government. See Const.

Art. IV, §4.

Although the district court here at-

tempted to place the present case within

the mold of Brown, District of Columbia

and Train, the facts and the issues here

are significantly different and clearly

distinguishable. The most fundamental

difference lies in the fact that, in

contrast to those cases, the State here

has clearly and unequivocally promulgated

its own pollution-control plan which repre-

sents its own policy decision, formulated

through public notice by the State to its

citizens and local governments, and through

State-conducted public hearings.

The Plan was enacted in compliance with

a statutory scheme which the State knew

would result in federal approval so long

as the State plan met the eight specified

Criteria, as well as foreclosing promulga-

tion of a federal plan that would have been

enforceable against polluters by the EPA

Or by citizens. The State thus entered

into a pact based on cooperative federalism

under which it made the essential policy

choices and determined the procedures that

should be adopted. by it and its subdivi-

sions to comply with federal pollution

standards which Congress undisputably had

the power to enact under the Commerce

. 48

Clause to protect the public health, since

pollution is interstate in character and

effect. Under this pact the-State, as well

as its subdivisions, became obligated to

implement the Plan. In return, it received

the assurance that the federal government

would not substitute or administer its own

plan. We find that this scheme does not

impermissibly interfere with the govern-

mental functions of the State or of its

subordinate arm, the City.

The parties do not, and indeed cannot,

dispute the fact that the Clean Air

Amendments of 1970 regulate an area well

within the federal government's plenary

commerce power. Fry v. United States,

421 U.S. 542, 547 (1975); Heart of Atlanta

Motel, Inc. v. United States, 379 U.S. 241

(1964). The question, therefore, is

whether this admittedly valid exercise

of the commerce power nonetheless imper-

missibly interferes with the integral

governmental functions of a state and its

local governments. In National League of

Cities the Supreme Court held that the

principles embodied in the Tenth Amendment

limit federal power to the extent that

"there are attributes of sovereignty

attaching to every state government

which may not be impaired by Congress,

not because Congress may lack an

affirmative grant of legislative

authority to reach the matter, but

because the Constitution prohibits it

from exercising authority in that

Manner, ...." 44 U.S.L.W. at 4977.

Applying this basic principle, the Court

held that the 1974 Amendments to the Fair

Labor Standards Act, 29 U.S.C. §§201, et

seg., which extended the coverage of its

minimum wage and maximum hour provisions

to almost all public employees of the

states and local governments, transgressed

the Tenth Amendment because the effects of

the amendments would be to increase state

and local budgetary requirements very

substantially, to curtail state and local

policy initiatives, and to cause signifi-

cant cutbacks in state and local training

programs, as well as in local affirmative

action employment and internship programs.

The net result would be to interfere with

the integral functions of these governments

by altering or displacing their ability

to structure employer-employee relation-

ships in such areas as fire prevention,

police protection, sanitation, public

health, and parks and recreation. Said the

Court, “If Congress may withdraw from-the

States the authority to make those funda-

mental employment decisions . . . we think

there would be little left of the States'

‘separate and independent existence,'" 44

U.S.L.W. at 4979.

In determining whether an otherwise

valid exercise of the federal commerce

power would impermissibly impair state

sovereignty we are therefore required to

balance the reason for the exercise

against the extent of usurpation of

state policy-making or invasion of inte-

gral state functions that would result,

giving “appropriate recognition to the

legitimate concerns of each government.”

Pacific Coast Dairy v. Department of Agri-

culture, 318 U.S. 285, 304 (1942) (Murphy,

J., dissenting). The present case presents

neither an interference with integral

governmental functions of the City, nor a

usurpation of State or City decision-

making. On the contrary, the Plan reflects

State and City policy decisions to be

carried out by them according to their own

dictates rather than those of the federal

government. In formulating, proposing,

and revising the Plan through public notice

and public hearings, the State exercised

its sovereign powers to make policy choices

participated in by its citizens and its

political subdivisions. Indeed, the

State's freedom to choose and formulate its

own policy concerning crucial local issues

was preserved by and written directly into

the Clean Air Act Amendments of 1970. As

Justice Rhenquist noted in Train v. Natural

Resources Defense Council, supra, 421 U.S.

at 60:

"Under §110(a)(2), the Agency is

required to approve a state plan -

shich provides for the timely

attainment and subsequent main-

tenance of ambient standards,

which also satisfies that sec-

tion's general requirements.

The Act gives the Agency no

authority to question the wisdom

Of a state's choices of emission

Timitations if they are part of

a plan which satisfies the standards

of §110(a)(2)... ."

(Some emphasis supplied).

To the extent that the City claims that en-

forcement of the State-promulgated policies

would displace City policy in allocating

its resources, the State policy must pre-

vail, since the City is but a creation and

subdivision of the State and in this case

participated in the State policy-making

decisions.

The City's claim of federal interfer-

ence with its police power, legislative

and budgetary policies, and with other

services wholly within its control, is

neither substantial nor directed toward an

integral governmental function. The City

does not allege, for instance, that en-

forcement of the Plan will entail basic

structural changes in police services or

in any other traditional local service.

The impact of enforcement, to the contrary,

can be expected merely to involve the use

of existing structures and personnel to

make changes in various traffic programs,

licensing procedures, and parking, delivery

and taxi regulations. The necessity of

appropriating funds for the construction

of toll facilities (from which it will

receive revenue) or for the acquisition

of private garages under the business-

district parking reduction plan does not

amount to the kind of injury found to

be impermissible in National League of

Cities, since the essential policy choices

involved in creating the program were

entirely within the control of the State

and the participating City agencies, and

not imposed by the federal government.

Moreover, the prospect that the City

may be required to take action in the

area of transportation control cannot be

considered an interference with an “inte-

gral" governmental program or service.

The regulation of traffic on roads and

highways, with its strong regional and

interstate character (particularly in the

New York City metropolitan area), has

long been considered to be a cooperative

effort between City, State and federal

authorities, with no single entity being

able to provide or impose a comprehensive

traffic system, and with federal power,

where necessary, taking precedence. See

City of Burbank v. Lockheed Air Terminal,

Inc., 411 U.S. 624, 638-39 (1972). Quite

significantly, in National League of

Cities v. Usery, supra, 44 U.S.L.W. at

4980 n.18, the Court reaffirmed the vali-

dity of United States v. California, 297

U.S. 175 (1936), on the grounds that a

state could be required to operate its

railroad lines in conformity with federal

regulations despite a claim of interfer-.

ence with state government. The Supreme

Court distinguished United States v.

California from National League of Cities

on the ground that the operation of a

railroad was not "an area that the States

have regarded as integral parts of their

governmental activities." The same

can be said of the operatidén of streets

and bridges so far as their impact

on the national problem of air pollution

is concerned.

The enforcement mechanism at issue

in this case is, we believe, closer to

the Economic Stabilization Act of 1970,

upheld in Fry, et al. v. United States,

421 U.S. 542 (1975), and distinguished

by the Court in National League of Cities,

which authorized the President to freeze

the wages of state employees during a

severe threat to the national economy.

Reasoning that "effectiveness of federal

action would have been drastically im-

paired” if state employees were excluded

from the Act, the Supreme Court upheld the

statute. In National League of Cities, the

Court found Fry “quite consistent” with

its holding because in Fry (as here) there

was (1) a “serious problem which endangered

the well-being of all the component parts

of our federal system and which only col-

lective action by the National Government

might forestall,” (2) a carefully drafted

program designed for very limited inter-

“ fatenee with states’ freedom, and (3)

a program that “displaced no state choices

as to how governmental operations should

be structured.” 44 U.S.L.W. at 4979.

The facts here are analogous. The Clean

Air Act Amendments of 1970 are directed

toward a significant national health and

safety prograia--air pollution--which re-

spects no political boundaries. Residents

in the vicinity of New York City, including

some persons in New Jersey and Connecticut,

are critically in need of a reduction in

carbon monoxide pollution which was, at the

time of this suit, five times the national

health standard. The entire structure of

the Clean Air Amendments was aimed at

providing the states with primary responsi-

bility for establishing policy and imple-

mentation procedures to meet the national

goals in order to minimize federal intru-

sion. Federal imposition of policy upon

the State never took place in this case,

and would only have taken place under

the Act if the State had refused to submit

its own Plan. In the context of the en-

forcement of the Plan through citizen suit,

the choices and procedures are the products

of State choice, not of federal policy, and

may legitimately be enforced by the

district court.

7 Our decision that the Plan is en-

forceable is not to be construed as

relieving the EPA Administrator of his

duty to provide, pursuant to our order

in Friends I, supra, 499 F.2d at 1126,

a statement of tke available State,

City and federal resources for imple-

mentation of the Plan. However, while

the State and City have, in submitting

the Plan to the EPA Administrator for

approval in 1973, expresssed reserva-

tions about their capability of

financing the costs of implementation

and we are well aware of the current

fiscal crisis in which the City finds

itself, neither has stated that it

must for financial reasons renege on

the commitments made by it when the

Plan was submitted to the EPA for approval

in 1973. Nor have we been advised that

the New York Legislature has refused to

appropriate the funds needed to implement

the Plan. The State's appropriation of

adequate resources for the implementation

of the Plan is therefore not an issue

“efore us. On the contrary, as the record

For these reasons, we grant appel-

lants' motion to vacate the decision of

the district court dated July 13, 1976,

and for a writ of mandamus, and remand

the case to the district court with

directions to reinstate its partial

summary judgment entered on April 30,

1976, to the end that the pollution

control strategies which were the sub-

ject of that judgment will be promptly

implemented.

Stands the responsible chief executives of

the State and City have indicated that

while financing of the Plan would pose

problems in policy choices concerning the

allocation of resources, they would take

the necessary steps to obtain the finan-

cial support required.

APPENDIX II

UNITED STATES COURT OF APPEALS

Second Circuit

At a Stated Term of the United States

Court of Appeals, in and for the Second

Circuit, held at the United States Court

House, in the City of New York, on the

fourth day of March, one thousand nine

hundred and seventy-seven.

Present: HON. WALTER R. MANSFIELD,

HON. WILLIAM H. TIMBERS,

HON. THOMAS J. MESKILL,

Circuit Judges,

Friends of the Barth, et al.,

Plaintiffs-Appellants,

Vv.

Hugh Carey, et al., 75-7497

Defendants~-Appellees, 76-3054

and

Russell Train,

Defendant.

Friends of the Earth, et al.,

Petitioners, ~

Vv.

Kevin T. Duffy, United States

District Judge,

Respondent.

A petition for a rehearing having

been filed herein by counsel for the City

appellees,

Upon consideration thereof, it is

Ordered that said petition be and

hereby is DENIED.

A. DANIEL. FUSARO

Clerk

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States

Court of Appeals, in and for the Second

Circuit, held at the United States Court

House, in the City of New York, on the

fourth day of March, one thousand nine

hundred and seventy-seven.

cee ee mew me wee ee we eww ee we we iia eas ea eae ee x

Friends of the Earth, et al.,

Plaintiffs-Appellants,

Vv.

Hugh Carey, et al., 75-7497,

Defendants-Appellees, 76-3054

and

Russell Train,

Defendant.

Friends of the Earth, et al.,

Petitioners,

Vv.

Kevin T. Duffy, United States

District Judge,

Respondent.

— ww ww @ ow ww ww ww Ow ww ww wr we we ww ww BO ww ow ow ow = x

A petition for rehearing containing a

suggestion that the action be reheard en

banc having been filed herein by counsel

for the City appellees, and a poll of the

judges in regular active service having

been taken and there being no majority in

favor thereof,

Upon consideration thereof, it is

Ordered that said petition be and it

hereby is DENIED.

IRVING R. KAUFMAN,

Chief Judge

ee ere

APPENDIX III

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ieee eee eee ee ee oe ee a ee ee ee x

FRIENDS OF THE EARTH, FRIENDS

OF THE EARTH NEW YORK BRANCH,

NATURAL RESOURCES DEFENSE COUNCIL,

INC., SIERRA CLUB, CITIZENS FOR A

BETTER NEW YORK, CITIZENS FOR CLEAN PARTIAL

AIR, INC., COMMITTEE FOR BETTER JUDGMEN'

TRANSIT, INC., ENVIRONMENTAL ACTION AND ORD)

COALITION, INC., HARLEM VALLEY TRANS-

PORTATION ASSOCIATION, INSTITUTE FOR 74 Civ.

PUBLIC TRANSPORTATION, NYC CLEAN AIR 4500

CAMPAIGN, NEW YORK STATE TRANSPOR- (K.T.D.

TATION COUNCIL, NORTH EAST TRANSPOR-

TATION COALITION, WEST VILLAGE

COMMITTEE, DAVID SIVE, PAUL DUBRUL,

Plaintiffs-Appellants,

-against-

HUGH CAREY, ABRAHAM BEAME, DAVID L.

YUNICH, MICHAEL J. CODD, ALFRED

EISENPREIS, MOSES L. KOVE, ELINOR

GUGGENHEIMER, ROBERT A. LOW, ALEX

MAUTNER, VICTOR MARRERO, MORRIS

TARSHIS, PAUL O'DWYER, THEODORE

KARAGHEUZOFF, P.E., JAMES MELTON,

OGDEN REID, STATE OF NEW YORK, CITY

OF NEW YORK, NEW YORK CITY TRANSIT

AUTHORITY,

Defendants-Appellees.

-— 7

This action came on for hearing before

a panel of the Court of Appeals for the

Second Circuit, with Honorable Walter R.

Mansfield, William H. Timbers and Thomas J.

Meskill, Circuit Court Judges sitting, and

the issues with respect to partial judgment

having been duly heard and a decision having

been duly rendered on April 26, 1976, and

there being no just reason for delay of the

entry of this partial judgment, it is hereby

ORDERED, ADJUDGED and DECREED that

partial judgment be entered immediately by

the Clerk of the Court in favor of

plaintiffs, Friends of the Earth, Friends

of the Earth New York Branch, Natural

Resources Defense Council, Inc., Sierra

Club, Citizens for a Better New York,

Citizens for Clean Air, Inc., Committee

for Better Transit, Inc., Environmental

Action Coalition, Inc., Harlem Valley

Transportation Association, Institute for

Public Transportation, NYC Clean Air Campaign,

New York State Transportation Council, North

East Transportation Coalition, West Village

Committee, David Sive and Paul Dubrul, and

(a) against defendants Hugh Carey, in

his official capacity as Governor

of the State of New York, Abraham

Beame, in his official capacity

as Mayor of the City of New York,

Ogden Reid, in his official

capacity as Commissioner of the

New York State Department of

Environmental Conservation,

Robert A. Low, in his official

capacity as Administrator of New

York City Environmental Protection

Administration, State of New York,

City of New York and Michael J.

Codd, in his official capacity as

Commissioner of the New York City

Police Department, Moses L. Kove,

in his official capacity as Chair-

man of the Taxi and Limousine Com-

mission and Theodore Karagheuzoff,

in his official capacity as Com-

missioner of the New York City

Department of Traffic, declaring

and adjudging the said defendants

in violation of the New York City

Transportation Control Plan

Strategy B-1C (partial ban on taxi

cruising);

(b) against defendants Hugh Carey,

Abraham Beame, Ogden Reid, Robert

A. Low, State of New York, City of

) New Yor’ and Michael J. Codd, in

their official capacities, Alfred

Eisenpreis, in his official capacity

as Administrator of the Economic

(c)

Development Administration, Elinor

J. Guggenheimer, in her official

capacity as Commissioner of the

Department of Consumer Affairs,

Alex Mautner, in his official

capacity as Acting Administrator

of the New York City Transportation

Administration and Victor Marrero,

in his official capacity as Chair-

man of the City Planning Commission,

declaring and adjudging the said

defendants in violation of the New

York City Transportation Control

Plan Strategy B-3 (reduction in

Manhattan central business district

parking);

against defendants Hugh Carey,

Abraham Beame, Ogden Reid, Robert

A. Low, Theodore Karagheuzoff and

Alex Mautner in their official

capacities and State of New York,

City of New York declaring and

adjudging the said defendants in

violation of New York City Trans-

vortation Control Plan Strategy

B-7 (imposition of tolls on all

East and Harlem River Bridges);

and

(d) against defendants Hugh Carey,

Abraham Beame, Ogden Reid, Robert

A. Low, Michael J. Codd, Alfred

Eisenpreis, Alex Mautner and Victor

Marrero, in their official capacities

and the State of New York and City

of New York declaring and adjudging

| the said defendants in violation

of New York City Transportation

: Control Plan Strategy D-3 (after

| hours deliveries to stores and

office buildings); and it is further,

ORDERED, ADJUDGED and DECREED that

defendants Hugh Carey, Abraham Beame, State

of New York and City of New York, implement

and enforce the said four strategies, and to

that end, it is further

ORDERED, ADJUDGED and DECREED, that

the State of New York and Governor of the

state of New York, Hugh Carey, submit to

this Court within twenty (20) days of the

entry of this judgment, a detailed time

schedule for compliance by the defendants

identified in subparagraphs (a) through (d)

of the first decretal Paragraph of this

Judgment and Order with the four strategies

listed above; [the four strategies collec-

tively referred to as the "Strategies"];_

and it is further

ORDERED, ADJUDGED and DECREED that

the time schedules submitted in accordance

with this judgment shall include the

following:

a statement of each milestone

necessary to complete each strategy;

a precise statement as to the date

by which each and every milestone

shall be completed;

a statement setting forth with

specificity each agency, department,

municipal corporation, public auth-

ority or other state instrumentality,

and the chief official of each such

entity, which will be responsible

for compliance with each and every

milestone;

a schedule for serving periodic

reports upon all parties to this

action and the Federal Environ-

mental Protection Agency setting

forth the status of compliance with

the milestones for each strategy;

and it is further

ORDERED, ADJUDGED and DECREED that the

State of New York or the Governor of the

State of New York has the primary responsi-

bilty to fully implement and enforce the

strategies, and no delegation of said

responsibility in the New York City Trans-

portation Control Plan shall relieve said

defendants of said responsibility under

this partial judgment; and it is further

ORDERED, ADJUDGED and DECREED that

said primary responsibility of the State of

New York or the Governor of the State of

New York shall not relieve the City of New

York or the Mayor of the City of New York

Or any instrumentality thereof of its re-

sponsibilities under this partial judgment;

and it is further

ORDERED, ADJUDGED and DECREED that

fifteen (15) days after service and filing

en? eee, 98 Se eee ee = 2

of the proposed schedule by the State of

New York and the Governor of the State of

New York, other parties may serve and file

any objections they may have to the sche-

dule or other documents submitted by the

State of New York and the Governor of

the State of New York, and that, upon

such further deliberations as are neces-

sary, such schedule, as may be amended

by the Court, shall be incorporated

in an order to be issued by the Court;

and it is further

ORDERED, ADJUDGED and DECREED that

this judgment and orders issued thereunder

shall be without prejudice to the right

of any party to seek further relief —

upon the judgment and orders rendered

or to be rendered in this cause whenever

necessary Or proper; and it is to be

further

—— ee SS CO

ORDERED, ADJUDGED and DECREED that the

Court will retain jurisdiction of this

action to assure compliance with this

partial judgment and to consider an award

of fees and costs pursuant to Section 304

of the Clean Air Act and rule 54 of the

Federal Rules of Civil Procedure.

Dated: New York, New York

April 29, 1976

/s/ Kevin Thomas Duffy

United states District Judge

APPENDIX IV

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

FRIENDS OF THE EARTH, et al.,

Plaintiffs, 74 Civ. 4500

~against- (KTD)

HUGH L. CAREY, et al., ORDER

Defendants.

This matter came on for hearing before

Honorable Kevin T. Duffy, United States

District Judge, for an order pursuant to

and implementing the Partial Judgment and

Order dated April 29, 1976 (“Judgment”),

and the issues with respect thereto having

been duly heard, and there being no just

reason for delay of the entry of this order,

it is hereby

ORDERED, ADJUDGED and DECREED that the

State of New York and Governor of the State

of New York, Hugh Carey, the City of New

York and the Mayor of the City of New York,

Oe Gal

Abraham Beame, and such delegates of the

State and Governor as are specified pursuant

to the Order, perform and comply with each

and every requirement of the Schedules

annexed hereto (hereinafter “Schedules"),

and it is further

ORDERED, ADJUDGED and DECREED that within

thirty (30) days of the entry of this order,

the State of New York and the Governor of

New York, Hugh Carey, shall serve and file

with the court a statement setting forth with

specificity each agency, department, municipal

corporation, public authority or other state

or city instrumentality, and the chief official

of each such entity, which will be performing

the work necessary to comply with each and

every requirement of the Schedules, provided

however that no such designation or delegation

shall relieve the State of New York, City of

New York, Governor of the State of New York or

the Mayor of the City of New York, from

their responsibilities undef the Judgment,

Schedules or Transportation Control Plan as

the case may be, and it is further

ORDERED, ADJUDGED and DECREED that in

the event that a delegate or designated entity

of the State of New York and the Governor of

the State of New York fails to comply with

any requirement of the Schedules, the State of

New York and the Governor of the State of New

York shall forthwith act to comply with the

violated requirement, but such corrective

action shall not relieve the defaulting

delegate or designated entity of any and all

liability for its default, and it is further

ORDERED, ADJUDGED and DECREED that all

submissions, certifications and reports as

required by the Schedules shall be con-

temporaneously served upon all parties in

this action by service upon counsel of

record or other designated person, and it

is further

ORDERED, ADJUDGED and DECREED that all

provisions of the Judgment shall survive

entry of this order and be of full force and

effect.

Dated: New York, New York

February 18, 1977

United States District Judge

Strategy B-lc Partial Ban on Taxi Cruising

(A) The Governor, the Mayor, and any person

to whom they delegate responsibilities in

accordance with paragraph E of this Order,

shall complete the following actions with

regard to Strategy B-lc of the Transportation

Control Plan on or before the dates specified:

(1) March 14, 1977:

(a) Submit to EPA data which

describes daily vehicle-miles-

traveled ("VMT") accumulated

by taxis operating in the Mid-

town Core Area on a typical

weekday after June 30, 1975.

The submission shall describe

in detail the sources of

information and the method

used to calculate such data.

Such data shall hereinafter be

referred to as “the base level.”

(b) Submit to EPA a copy of and begin

enforcing an adopted regulation

which provides that between the

hours of 8 a.m. and 7 p.m.,

inclusive, daily except Sundays,

in the Midtown Core Area,

passengers may be picked up or

discharged by taxicabs only with-

in 12 inches of the curb and

parallel thereto except that no

such pickup or discharge shall

be made:

(i) within a pedestrian cross-

walk;

(ii) within an intersection

except on the side of a

roadway opposite a street

which intersects but does

not cress such roadway;

—

(c)

(iii) along side or opposite

(iv)

(v)

any street excavation

obstruction when stopping

Or standing would obstruct

traffic;

along side a vehicle parked

at the curb except where no

unoccupied space is available

within 100 feet; and

under such condition as to

obstruct the movement of

traffic and in no instance

so as to have less than ten

feet available for the free

movement or vehicular traffic

Submit to EPA a plan, to be fully

implemented by May 14, 1977 for

a comprehensive public education

and information program to inform

(d)

the public of the requirements

of the regulation described in

subparagraph (1)(b) above.

Submit to EPA data which

describes the amount of linear

feet of curb space specifically

dedicated to taxi queuing, dis-

charge and pickup in the Mid-

town Core Area as of June 30,

1975. This data shall herein-

after be referred to as “the

start level.”

(2) May 14, 1977:

(a)

Submit to EPA a detailed plan

describing specific észi

VMT reduction measures and the

dates for their implementation.

Such plan must demonstrate, by

calculation, the anticipated

reduction in taxi VMT to be

ees VT 4% >

(b)

achieved and maintained in the

Midtown Core Area. Such

reduction shall be at least 5%

from the base level by September

14, 1977, 10% from base level

by February 14, 1978, and 20%

from base level by February 14,

1979.

Submit to EPA a detailed pro-

gram plan for the establishment

of at least 15,000 additional

linear feet of dedicated curb

space to be made available to

taxis for queuing, discharge

and pickup in the Midtown Core

Area in addition to the start

level amount referred to in

paragraph (1)(d) above by

November 14, 1977. Such pro-

gram shall include plans for

Hy oe

(c)

a public education and information

campaign to inform the public of

the locations of such curb space and

the placement of signs identifying

all existing and new space. The

selection of the locations for this

Space shall be supported on the basis

of any or all of the following .-

criteria:

(i) space/activity ratio;

(ii) space/land-use type ratio;

(iii) _ space/square footage of

land area ratio;

(iv) space/employee ratio;

(v) space/generated taxi trips

ratio; and

(vi) any other convenient mea-

sures.

Submit to EPA a detailed plan for

demonstration projects lasting at

least two months and to be completed

by September 14, 1977 to effect a

reduction in taxi VMT in the Midtown

Core Area. Such plan shall include

at least the following:

(i) A provision for group ridership

between 7:00 a.m. and 7:00 p.m.

covering:

(aa) specific hotel loading

zones to Kennedy and

LaGuardia Airports, and

(bb) Grand Central Terminal

to the Lower Manhattan

Financial District.

(ii) jitney service provided by taxi-

cabs from 8:00 a.m. until 6:00

p.m., Monday through Friday,

excluding legal holidays, along

the following routes or their

equivalents:

(aa)

(bb)

(cc)

42nd Street at Grand Central

Terminal, west to 7th Avenue,

south to 33rd Street, west to

8th Avenue, north to 42nd

Street, east to Vanderbilt

Avenue, south to 42nd Street

at Grand Central Terminal; and,

42nd Street at Grand Central

Terminal west to Madison Avenue,

north to 57 Street, east to

Lexington Avenue, south to 42nd

Street, west to Grand Central

Terminal.

routes defined by the City of

New York between parking areas

along the water-front of the

Hudson and East Rivers and the

Midtown and Downtown Core areas.

These routes should be shown

(3)

(d)

July

(a)

to supplement, rather than

compete with, existing public

transit service.

(iii) a “Going My Way" busing system

on routes found to have high

incidence of single destina-

tion orientation among taxi-

cab users;

(iv) a comprehensive public educ-

ation and information

Campaign designed to make the

public aware of the availability

of the aforesaid programs.

Certify to EPA that the plan required

by subparagraph (1)(c) above has been

fully implemented.

14, 1977:

Certify to EPA that, at a minimum,

the demonstration projects described

in subparagraphs (2)(c) above have

been implemented and are sched-

uled to be in operation until at

least September 14, 1977.

Include a detailed operational

description of the projects and

specify their duration. Within

three months from each project's

completion, submit to EPA a de-

tailed, quantified evaluation of

the impact of said project.

(4) September 14, 1977:

(a)

(b)

Submit to EPA data which de-

scribes daily VMT accumulated

by taxis operating in the

Midtown Core Area on a typical

weekday between June l, 1977

and September 14, 1977.

If the data required by subpara-

graph (4)(a) above demonstrates

less than the requried 53%

reduction in VMT from the

base level in the Midtown

Core Area, submit to EPA a

revision to the plan re-

quired under subparagraph

(2)(a) above. Such revision

shall include additional VMT

reduction measures necessary

to achieve and maintain the

required 10% VMT reduction

from the base level by

February 14, 1978. If not

already included in the plan

submitted pursuant to subpara-

graph (2)(a) above, evaluate

the following measures for

inclusion in the revision and

submit said evaluation to EPA:

* 7 ee

Pepi et ert Se Pay Be

Baws

(5)

(6)

(i) jitney service, at loca-

tions other than those

required for demonstra-

tion;

(ii) group ridership from

locations other than

those required for de-

monstration.

scheduled for implementation by

September 14, 1977 for the plan

required by subparagraph (2) (a)

above have been fully implemented.

November 14, 1977:

Certify to EPA that plan required by

subparagraph (2)(b) above has been

fully implemented.

February 14, 1978:

(a) Submit to EPA data which de-

scribes daily VMT accumulated

site i ala ane

by taxis operating in the

Midtown Core Area on a typical

weekday between November l,

1977 and February 14, 1978.

(b) Certify to EPA that there has

been at least a 10% reduction

in taxi VMT from the base level.

scheduled for implementation by

February 14, 1978, for the plan

required by subparagraph (2) (a)

above have been fully implemented.

(7) February 14, 1979:

(a) Submit to EPA data which de-

scribes daily VMT accumulated

by taxis operating in the Mid-

town Core Area on a typical

weekday between November 1, 1978

and February 14, 1979.

(b) Certify to EPA that there has

been at least a 20% reduction

in taxi VMT from the base level.

scheduled for implementation by

Pebruary 14, 1979, for the plan

required by subparagraph (2) (a)

above have been fully implemented.

(8) February 1, 1980 and annually there-

after:

Submit to EPA data which describes

daily VMT accumulated by taxis opera-

ting in the Midtown Core Area on a

typical weekday between November 1

and February 14 of the current year.

(B) The following definitions are appli-

cable to terms used in paragraph (A) of

this Order:

(1)

(2)

(3)

Midtown Core Area: that area of

Manhattan bounded by the south

face of 34th Street, the north

face of 59th Street, the east

face of 3rd Avenue and the west

face of 8th Avenue.

Downtown Core Area: that area

of Manhattan extending from the

northern face of Canal Street

to the extreme southern tip of

Manhattan between the East and

Hudson Rivers, inclusive of the

areas projecting into the Rivers.

Lower Manhattan Financial Dis-

trict: that area bounded by the

south faces of Liberty Street

and Fulton Street, the East and

Hudson Rivers and the lower

Hudson Bay.

aoa

(4) Jitnmey Service: the operation of

vehicles usually smaller than

Standard buses (e.g., taxicabs,

minibuses) along a fixed route

where passengers may board and

disembark at any point for a

set fee. Descriptive informa-

tion and signs to inform the

public of the existence of

such service must be provided

along the entire route.

(5) Group Ridership: a single

origin taxi trip allowing

multiple-destination rider-

ship confined to specific 7

destination zones with a

variable seute permitted

throughout the trip.

(6) “Going My Way" Busing System:

the operation of a taxicab

, Or minibus with the destination

visibly posted, such that pas-

sengers who are destined accord-

ingly may be picked up at any

point in the journey. The

operation would require a flat

fare, and would use either a

fixed or flexible route.

(A) above require the submittal of substan-

tive reports, plans or other information

to EPA, the Governor or the Mayor shall

also serve a copy of such documents upon

the other parties to this action. After

September 1, 1977, if they so choose,~-

they may report the information required

by this order on the “reporting date"

next following the incremental dates set

forth above. The reporting dates are

established as the fifteenth of February,

100

April, June, August, October and December.

The reporting dates established by this

paragraph shall not be construed as

altering in any way the dates set forth

in paragraph (A) above for the completion

of the actions therein established.

(D) The Governor or the Mayor shall

immediately communicate in writing

to the Court, EPA and the other parties

to this action information relating to

any conditions or circumstances which

will or may render the State unable to

comply in a timely manner with the

scheduled actions set out in paragraph

' | (A) above. The communication called |

for by this pargraph shall, wherever

appropriate, be accompanied by:

(1) Copies of any correspondence

ss between the State and any of

;

L r

;

its departments and any

101

7 oP VEE

contractors or suppliers having

“responsibilities in connection

wih the scheduled actions man-

dated by this Order.

(2) Any other or additional document-

ation from which it may be

inferred that any or all of the

scheduled actions set out in

Paragraph (A) above will not or

May not be accomplished by the

dates specified.

(3) A discussion of any circum-

Stances or conditions which will

Or may render compliance with

' : future scheduled actions una-

chievable, together with steps

the State has taken or will

take to mitigate such circum-

stances or conditions.

102

Compliance with this paragraph shall

neither constitute compliance nor excuse

noncompliance with the requirements of

the other paragraphs of this Order,

(E) The Governor or the Mayor may delegate

any of the reporting or other cequirements

described hereinabove to such person or

persons as they may deem appropriate, pro-

vided, however, that such delegation is

certified in writing to EPA and the parties

to this action.

() The tecms of this Order will not have

the effect of extending or altering in any

way the date or dates fixed for compliance

with any provisions of Title 40 of the

Code of Federal Regulations other than

those to which express reference is made

in the tecms of paragraph (A) above,

103

Strategy B-7 Imposition of Tolls on

all East and Harlem River Bridges

(A) The Governor, through the Commissioner

of the Department of Transportation and

the Commissioner of the Department of

- Environmental Conservation, and any other

pecson to whom he delegates responsibili-

ties in accordance with paragraph D of

this order, shall complete the following

actions with regard to Strategy B-7 of

the Transportation Control Plan on or

before the dates specified:

(1) March 1, 1977:

Submit to EPA updated esti-

mates from those presently

H existing of costs and rev-

; | enues for the establishment

of toll facilities on all

presently untolled East and

; 104

Tk gy

(2)

Harlem River Bridges by

August 31, 1978.

March 14, 1977:

(a) Certify to EPA the extent

to which legal authority

exists to establish tolls

and to establilsh toll

schedules that shall take

into account:

(i) Time of use;

(ii) Day of use;

(iii) Vehicle type;

(iv) Vehicle occupancy; and

(v) Location of vehicle

| registration.

(b) Certify to EPA the extent to

which legal authority exists

to establish tolls which are,

at a minimum, equal to tolls

on presently tolled East and

105

Harlem River crossings.

proposals necessary to obtain

the authority required to es-

tablish tolls and toll

schedules as described in

subparagraphs (2)(a) and (2)

(b) above and certify that

these proposals have been

submitted to the appropri-

ate authorities.

(d) Certify to EPA that legal

authority exists, or submit

to EPA a copy of the pro-

posals necessary to obtain

legal authority, to assure

that net revenues to be

collected on presently

untolled East and Harlem

River Bridge crossings will

106

“) ae

‘

(3)

be used to subsidize or reduce

mass transit fares or otherwise

improve mass transit in the New

York portion of the New Jersey-

New York-Connecticut Interstate

Air Quality Control Region.

June 14, 1977:

Submit to EPA:

(a)

(b)

(c)

A schedule for complete engineer-

ing, design and bid documents

not to extend beyond November 14,

1977;

A schedule for land acquisition,

as necessary; and

A study which identifies poten-

tial traffic disturbances or

negative environmental impacts

which may result from implementa-

tion of this Order and specifies

107

Meee ete ad

(d)

recommendations as to alterna-

tive traffic design arrangements

to deal with any such distur-

bances or impacts.

Certify to EPA that the neces-

sary funds are available for

construction and operation by

August 31, 1978 of toll faci-

lities on all untolled East and

Harlem River Bridges.

(4) November 14, 1977:

(a)

(b)

Certify to EPA that engineering,

design and bid documents for all

phases of toll facility construc-

tion have been completed; and

Submit to EPA a schedule for

construction of tol! facilities

not to extend beyond August 15,

1978.

108

authorities necessary to allow

construction and operation of

bridge toll facilities on all

untolled East and Harlem River

Bridges as described in sub-

paragraphs (2)(a) and (2)(b)

above have been obtained.

(d) Certify to EPA that all legal

authorities necessary to

assure that net revenues to

be collected on presently

untolled East and Harlem River

Bridge crossings will be used

for the purpose described in

subparagraph (2)(d) above have

been obtained obtained.

(5) August 31, 1978:

Establish tolls on all East and

Harlem River Bridges which are, at

109

_-—.

a minimum, equal to tolls on presently

tolled East and Harlem River crossings

and commence the allocation of net _

revenues collected to subsidize or

reduce mass transit fares or otherwise

improve mass transit in the New York

portion of the New Jersey~New York-

Connecticut Interstate Air Quality

Control Region.

(6) March 14, 1979:

Submit to EPA an impact evaluation

on the implementation of this Order

and propose any changes in toll

structure necessary to optimize

traffic flow across the Bridges and

minimize negative environmental

impacts.

(B) Where the dates set forth in paragraph

(A) above require the submittal of substan-

tive reports, plans or other information

110

to EPA, the Governor or the Mayor shall

also serve a copy of such documents upon

the other parties to this action. After

April 1, 1977, if they so choose, they

may report the information required by

this order on the “reporting date" next

following the incremental dates set

forth above. The ceporting dates are

established as the fifteenth of February,

April, June, August, October and December.

The reporting dates established by this

paragraph shall not be construed as

altering in any way the dates set forth

in paragraph (A) above for the completion

of the actions therein established.

mediately communicate in writing to the

Court, EPA and the other parties to this

action information relating to any

conditions or circumstances which will or

lll

may render the State unable to comply in a

timely manner with the scheduled actions

set out in paragraph (A) above, The com-

munication called for by this paragraph

shall, wherever appropriate, be accom-

panied by:

(1) Copies of any correspondence

between the State and any of

its departments and any

contractors or suppliers

having cesponsibilities in

connection with the scheduled

actions mandated by this

Order.

(2) Any other or additional docu-

mentation from which it may

be inferred that any or all

of the scheduled actions set

out in paragraph (A) above

will not or may not be

112

accomplished by the dates speci-

fied.

(3) A discussion of any circumstances

Or conditions which will or may

render compliance with future

scheduled actions unachievable,

together with steps the State has

taken or will take to mitigate

such circumstances or conditions.

Compliance with this paragraph shall

neither constitute compliance nor excuse

non-compliance with the requirements of

the other paragraphs of this Order.

(D) The Governor or the Mayor may dele-

gate any of the reporting Or other

cequirements described hereinabove to

such person or persons as they may deem

appropriate, provided, however, that

such delegation is certified in writing

113

us ai

to EPA and the other parties to this

action.

(E) The terms of this Order will not

have the effect of extending or alter-

ing in any way the date or dates fixed

for compliance with any provisions of

Title 40 of the Code of Federal Regula-

tions other than those to which express

reference is made in the terms of

paragraph (A) above.

= 114

Strategy D-3 After Hours Goods Delivery

(A) The Governor, the Mayor, and any

person to whom they delegate responsibi-

lities in accordance with paragraph D of

this Order, shall complete the following

actions with regard to Strategy D-3 of

the Transportation Control Plan on or

before the dates specified:

(1) March 14, 1977:

(a)

Certify to EPA that a study

Or studies are underway

which have as a goal the

improvement of goods deliv-

ery through reorganization

of truck activity which will

impact significantly upon

air pollution and traffic

congestion in areas of

Manhattan south of 60th

Street.

115

(b)

Submit to EPA the work

schedules for the study

Or studies which are being

conducted pursuant to the

requirements of subparag-

raph (1)(a) above. Include

within these schedules

tasks that define speci-

fic actions to be studied

and, where determined

feasible, implemented

either experimentally

Or On a permanent basis,

with associated dates

within which such imple-

mentation will occur.

An implementation schedule

should distinguish between

short-term, mid-term or

116

long-term actions with

discussions of intent,

feasibililty and issues

concerned with each

proposal or recommenda-

tion.

the work schedule required

by subparagraphs (1) (a)

and (b) above cannot be

submitted, submit documen-

tation showing that

applications have been

made for studies to be

undertaken as described

above, or that studies for

which applications are

pending can be shown to

include the goals described

above. These studies should

117

include, at a minimum, the

following:

(i)

(ii)

(iii)

consolidation of goods

delivery and pick-up

on a location specific

basis, either by block,

building, or sector,

as well as regionally;

street planning to as-

certain the feasibility

of allocating specific

streets solely for

truck activity which

may cequire hand-

trucking to adjacent

blocks;

capacity limitations

and traffic flow im-

pacts associated with

the diversion of

118

(iv)

(v)

(vi)

mixed traffic to

alternate streets if

certain streets are

designated strictly

for truck activities;

scheduling to render

rush hour delivery

Or operation unde-

sirable;

an assessment of the

economic impact on

commercial establish-

ments of after hour

delivery of goods;

an intercmodal freight

study to determine if

the establishment of

new trailer-on-flatcar

terminals east of the

Hudson River in New

119

York City and Long

Island will eliminate

a significant amount

of tractor trailer

traffic through Man-

hattan.

This documentation must

indicate demonstration

projects, experiments, and

tests which have resulted

from the proposals and/or

recommendations of past

studies, and should outline

conclusive results. Re-

search in this area which

has been performed elsewhere

may be included, if such

information is important to

the requirements of this

Order.

120

(2)

June 14, 1977:

Submit to EPA detailed implement-

ation schedules for at least two

demonstration projects from

among a list including, but not

limited to:

(i) consolidation of goods

delivery and pick-up on

a location specific

basis, either by block,

building, or sector;

(ii) allocation of specific

streets solely for truck

activity, which may re-

guire hand-trucking to

adjacent blocks;

(iii) limitation of capacity

to impede flow of

through vehicles on

certain streets;

121

(iv)

(v)

(vi)

reservation of curb

lanes for either

through vehicles or

buses to prohibit or

impede curbside de-

liveries in selected

areas at specific

times, particularly

those conflicting with

rush hour commuting

periods;

building receiver schedul-

ing to prohibit delivery

operations conflicting

with peak hour commuting

periods;

tHe use of intermodal

freight terminals to

reduce the use of

through trailer-truck

122

movement in Manhattan;

(vii) reservation of specific

lanes for through trucks

where this would improve

average speed performance;

and

(viii) reservation of specific

avenues at specific

times for truck move-

ment only.

Such demonstrations must be ini-

tiated no later than September l,

1977 and be conducted for a

period of no less than three

months. They may be phased if

necessary for optimum per form-

ance. The implementation

schedule must include a program

for monitoring the ‘'before-and-

after’ effects of the experiment,

123

(3)

(4)

evaluating the impact of each

demonstration on parameters. such

as air quality or pollutant

emissions, traffic speeds, de-

lays and waiting times, total

distances traveled, and average

loads per vehicle.

August 14, 1977:

If the certification referred

to in subparagraph (1)(a) above

has not been made, submit to EPA

signed contracts for studies

described in subparagraph (1) (c)

above together with work sche-

dules as described in subpara-

graph (1)(b) above.

September 1, 1977:

Certify that the demonstration

projects required in paragraph

(A)(2) have been commenced and

124

specify their duration.

(5S) December 14, 1977:

Submit a written decision identi-

fying those measures which will

be implemented on a permanent

basis with a detailed justifica-

tion regarding any measure

which is not selected for imple-

mentation on a permanent basis.

(6) December 14, 1977; and semi-

| annually thereafter:

Submit data and information

which describe the progress

and direction of the study

referred to in subparagraph

(1)(a) and (3) above, the

impacts and results of the

demonstration projects re-

quired by paragraph (2)

above and progress being

125

made in implementing the

measures arising from the

study.

(B) Where the dates set forth in paragraph

(A) above require the submittal of substan-

tive reports, plans or other information to

EPA, the Governor or the Mayor shall a’:9

serve a copy of such documents upon t#»

other parties to this action. After April

1, 1977, if they so choose, they may

report the information required by this

Order on the “reporting date” next follow-

ing the incremental dates set forth above.

The reporting dates are established as

the fifteenth of February, April, June, -

August, October and December. The

reporting dates established by this para-

graph shall not be construed as altering

in any way the dates set forth in para-

graph (A) above for the completion of

126

the actions therein established.

immediately communicate in writing

to the Court, EPA and the other parties

to this action information relating to

any conditions or circumstances which

will or may render the State unable to

comply in a timely manner with the

scheduled actions set out in paragraph

(A) above. The communication called

for by this paragraph shall, wherever

appropriate, be accompanied by:

(1) Copies of any correspondence

between the State and any of

its departments and any

contractors or supplies

having responsibilities in

connection with the scheduled

actions mandated by this Order.

127

(2) Any other or additional docu-

mentation from which it may

be inferred that any or all

of the scheduled actions set

out in paragraph (A) above

will not or may not be accomp-

lished by the dates specified.

(3) A discussion of any circumstances

Or conditions which will or may

render compliance with future

scheduled actions unachievable,

together with steps the State

has taken or will make to miti-

gate such circumstances or

conditions.

Compliance with this paragraph shall

neither constitute compliance nor excuse

noncompliance with the requirements of

the other paragraphs of this Order.

128

(D) The Governor or the Mayor may dele-

gate any of the reporting or other -

requirements described hereinabove to

such person or persons as they may

deem appropriate, provided, however,

that such delegation is certified in

writing to EPA and the other parties

to this action.

(E) The terms of this Order will not

have the effect of extending or alter-

ing in any way the date or dates fixed

for compliance with any provisions of

Title 40 of the Code of Federal Regula-

tions other than those to which express

reference is made in the terms of

paragraph (A) above.

129

STRATEGY B-3 PARKING REDUCTION

(A) The Governor, the Mayor, and any

person to whom they delegate responsi-

bilities in accordance with paragraph

(F) of this Order, shall complete the

following actions with regard to

Strategy B-3 of the Skaneneetation

Control Plan on or before the dates

specified:

(1) April 1, 1977:

Submit to EPA an inventory

of the quality, location

and distribution of exist-

ing parking spaces as of

any date between April l,

1974 and February 30 [sic],

1977 (“inventory levels")

for the locations speci-

fied, categorized and

130

Roos st eee

Classified in the following

manner ;:

(a)

on-street spaces; classi-

fied as metered, regulated

(by type of restriction),

and unregulated that are:

(i)

(ii)

in that area of Man-

hattan extending from

the northern face of

59th Street to the

southern face of 34th

Street and from the

western face of 8th

Avenue to the eastern

face of 3rd Avenue

("the Midtown Core"),

in that area of Man-

hattan extending from

the northern face of

Canal Street to the

131

+ wg

(iii)

extreme southern tip

of Manhattan between

the East and Hudson

Rivers, inclusive of

the areas projecting

into the rivers ("the

Downtown Core"), and

in the remaining area

of Manhattan south of

the northern face of

59th Street from the

East River to the

Hudson River and from

the northern face of

Canal Street to the.

northern face of 59th

Street, excluding the

Midtown Core ("the

Peripheral Area").

132

(b)

The total area comprising the

Midtown Core, the Downtown

Core and the Peripheral Area

is hereinafter referred to as

"the Hub Area";

Off-street parking spaces,

classified as commercially

available (parking spaces

which are at any time avail-

able to the general public for

a fee) and non-commercially

available (all other off-street

parking spaces), and further

classified as garage or lot

space, that are:

(i) in that area of Manhattan

comprised of the Midtown

Core;

(ii) in that area of Manhattan

comprised of the Downtown

133

core; and

(iii) in that area of Man-

hattan comprised of

the Peripheral Area.

(2) May 14, 1977:

(a)

Submit to EPA detailed work

programs to reduce and

Manage parking in the Mid-

town Core, the Downtown Core

and the Peripheral Area.

Such work programs shall

describe specific measures

to be implemented, shall

specify dates for their im-

plementation, and shall |

demonstrate by calculation

that such measures are

adequate to achieve and

maintain a reduction of

automobile entries into that

134

area of Manhattan south of

60th Street between the hours

of 6:00 a.m. and 10:00 a.m.

weekdays ("Rush Hour Auto

Entries") by 5% by September

14, 1977, 10% by February

14, 1978, and 20% by

February 14, 1979. Such

programs shall include:

(i) For the Midtown Core:

(aa) A plan to elimi-

nate all legal on-

street parking spaces

by June 14, 1977; such

plan shall include .

showing that necessary

resources are available

and committed to sub-

stantially eliminate

135

illegal on-street park-

ing by January 14,

1978, including in-

creases in automobile

towing capacity to a

level which in no

event shall be less

than removal of 500

automobiles per day

from illegal spaces in

the Midtown Core;

(bb) legally enforce-

able requirements which

provide that new com-

mercially available

parking spaces may be

authorized for con-

struction only on a

one for two trade-in

basis within the

136

| sas , Row,

Midtown Core, i.e., one

new space may be author-

ized for construction if

and only if two commercially

available spaces have been

removed from Midtown Core

inventory levels;

(cc) legally enforceable re-

quirements which limit the

construction of new non-

commercially available

parking spaces so that they

may be provided only on the

basis of specific ratios.

Such ratios shall apply to

all types of non-commercial-

ly available parking spaces

and shall be as strict or

Stricter than those provided

137

sae

in the proposal entitled,

"Regulation of Parking in

Manhattan: Zoning Proposals,"

published December 6, 1974

by the City of New York and

shall be submitted with the

Plans for comment by EPA and

other parties to this action.

(ii) for the Downtown Core:

(aa) a plan to provide for a

ban on general on-street

auto parking between the

hours of 8:00 a.m. and 6:00

p.m. by June 14, 1977 pro-

vided, however, that exist-

ing metered spaces may be

used legally at times other

than rush hours (7:00 a.m.

to 10:00 a.m. and 4:00 p.m.

to 7:00 p.m. on weekdays);

138

such a plan shall include a~-

showing that necessary re-

sources are available and

committed to substantially

eliminate illegal on-street

parking by January 14, 1978,

including an increase in

automobile towing capability

to a level which in no event

shall be less than removal

of 100 automobiles per day

from illegal spaces in the

Downtown Core;

(bb) legally enforceable

requirements which provide

that new commercially

available parking spaces may

be authorized for construc-

tion only on a one for two

trade-in basis within the

139

Downtown Core, i.e., one new

space may be authorized for

construction if and only if

two commercially available

space have been removed

from Downtown Core inventory

levels;

(cc) legally enforceable re-

quirements which limit the

construciton of new non-

commercially available park-

ing space so that they may

be provided only on the

basis of the specific ratios

established under subpara-

graph (2)(a)(i)(cc) above.

(iii) Por the Peripheral

Area:

(aa) a plan to provide

for a ban on general

140

on-street auto park-

ing between the hours

of 8:00 a.m. and 6:00

p.m. on weekdays by

August 3l, 1977, pro-

vided, however, that

parking may be allowed

on specified streets

which are primarily

residential and are

zoned as residential

and provided further

that existing metered

spaces may be used

legally at times other

than rush hours (7:00

a.m. to 10:00 a.m. and

4:00 p.m. to 7:00 p.m.

on weekdays); such

plan shall include a

141

showing that the necessary

resources are available and

committed to substantially

eliminate illegal on-street

parking by January 14, 1978,

including increases in auto-

mobile towing capability to

a level which in no event

shall be less than removal

of 100 automobiles per day

from illegal spaces in the

Peripheral Area.

(bb) Legally enforceable re-

quirements which provide

that new commercially

available parking spaces

may be authorized for con-

struction only on a one

for one trade-in basis

within the Peripheral

142

(iv)

(b)

Area, i.e., one new

Space may be authorized

for construction if and

only if one commercially

available space has been

removed from Peripheral

Area inventory levels.

Such other measures neces-

Sary to achieve the required

reductions, such as:

(aa) parking surcharges;

(bb) late openings;

(cc) carpool rate reduc-

tions;

(dd) space capacity limita-

tions by time of day; and

(ee) zoning bonuses for

closings.

Submit to EPA a detailed de-

scription of the system

developed to account for

143

changes to the parking space

inventory determined pursu-

ant to subparagraph (1)

above. Such system shall, as

a minimum, include:

(i) an official log which

provides an up-to-date sum-

mary of all parking spaces,

both existing and authorized

for establishment in the Hub

Area, Classified in such

manner as to provide ready

determination of compliance

with this Order; and

(ii) procedures designed to

assure that authorization

to construct new parking

Spaces will not be granted

contrary to the provisions

of this Order.

144

(3)

June 31, 1977:

Submit to EPA a detailed descrip-

tion of the system developed to

account for reductions in Rush

Hour Auto Entries. This system

shall include a baseline level

for Rush Hour Auto Entries on a

typical weekday between January

1, 1975 and June 15, 1977, which

baseline level shall be used in

calculating reductions in Rush

Hour Auto Entries in the follow-

ing subparagraphs of this Order.

Supporting information specifying

the method by which this baseline

level was obtained shall be in-

cluded and the same type of

information shall be used to

145

document all reports of reduc-

tions in Rush Hour Auto Entries

in the following subparagraphs

of this Order. The information

base from which the baseline

level is derived shall consist

of comprehensive counts of

automobiles entering the area

of Manhattan south of 60th

Street between the hours of

6:00 a.m. and 10:00 a.m. con-

ducted in accordance with

normal traffic count procedures

on each weekday for a minimum

of three consecutive weeks;

provided that an alternate

information base may be used if

it is demonstrated to the satis-

faction of EPA and the other

parties to this action, prior

146

(4)

to April 1, 1977, that the alter-

nate information base will result

in data of accuracy equal to the

data derivable from the three-

week information base.

July 14, 1977:

(a)

Submit to EPA data identi-

fying the total number of

vehicle miles traveled (VMT)

by automobiles in the 5 bor-

oughs of New York City on a

typical weekday between July

1, 1974 and June 31, 1977.

Supporting information spe-

cifying the method by which

these data were obtained

must be submitted together

with a demonstration that

the range of error of the

data is less than 2%.

147

(b)

Submit to EPA a work program

for a comprehensive study

to be completed by February

30 (sic), 1978, to implement

a city-wide parking policy

and program complimenting

the programs required by

subparagraph (2)(a) above.

The study at a minimum

shall:

(i) further define the re-

lationships among auto

usage, parking, local-

ized carbon monoxide

concentrations, and

hydrocarbon emissions

in the Hub Area and in

the remainder of New

York City;

148

(ii)

identify specific

parking control or

Other measures to be

implemented to accomp-

lish the following

objectives:

(aa) achieve by

September 14, 1979

a reduction of 10%

in automobile VMT

from the level

identified in sub-

paragraph (4)(a)

above; and

{bb) achieve a 35%

reduction in Rush

Hour Auto Entries

by September 14,

1979 and a 50%

reduction in Rush

149

(c)

Hour Auto Entries

by September 14,

1980.

Submit to EPA an evaluation

of the following issues with

identification of problems

and recommendations for

their solution:

(i) legal and illegal park-

ing by privileged and

governmental vehicles;

(ii) layover of express

buses coming into Man-

hattan from outlying

areas; and

(iii) the use of on-street

parking spaces in the

residential parts of

the Peripheral Area

for purposes other

150

than the storage of

residents’ automo-

biles.

(d) Submit to EPA a Parking Inven-

tory Report for the accounting

date of July 1, 1977. All

Parking Inventory Reports

under this Order shall include

the following data for the

Midtown Core, the Downtown

Core, and Peripheral Area

separately:

(i) the total number of on-

street parking spaces

which were eliminated

from inventory levels as

of the accounting date;

(ii) the total number of com-

mercially availabie

parking spaces elimi-

nated from inventory

151

levels as of the ac-

counting date;

(iii) the total number of

(iv)

commercially available

and non-commercially

available (by type)

spaces authorized for

construction (exclud-

ing those spaces for

which authorization

was issued and subse-

quently withdrawn)

between the date used

to determine inventory

levels under subpara-

graph (1) above and

the accounting date;

and

numerical estimates of

the extent of illegal

152

On-street parking on a

typical weekday within

two weeks of the ac

counting date, together

with a specification

of the methodology used

in making these esti-

mates.

(5) September 14, 1977:

(a) Certify to EPA that:

(i) at least a 5% reduction

of Rush Hour Auto

Entries has been

achieved;

(ii) legal on-street parking

Spaces in the Hub Area

have been eliminated

to the extent required

by subparagraphs (2)(a)

(i)(aa), (4) (a) (24) (aa),

153

and (2) (a) (iii) (aa) above,

(b) Submit to EPA a Parking Inven-

tory Report for the accounting

date of September 1, 1977.

(6) January 14, 1978:

Certify to EPA and provide docu-

mentary evidence that illegal

On-street parking has been sub-

Stantially elimineted in the ilub

Area and the plans established

under subparagraphs (2) (a) (i) (aa),

(2) (a) (44) (aa), amd (2) (a) (144)

(aa) above to substantially elini-

nate illegal on-street parking in

the Hub Area have been fully imple-

mented,

(7) February 14, 1978:

(a) Certify to EPA that at least

154

a 10% reduction in Rush Hour

Auto Entries has been

achieved.

(b) Submit to EPA a Parking

Inventory Report for the

accounting date of February

1, 1978.

(8) February 30 (sic],1978:

(a) Submit to EPA the final

report for the City-wide

parking policy study re-

quired by subparagraph (4)

(b) above. Identify to

what extent auto usage

must be further reduced to

provide for accomplishment

of the objectives estab-

lished by subparagraph

(4)(b)(ii) above; specify

those measures to be imple-

155

mented to accomplish said

objectives by proposed

dates no later than the

dates therein specified;

specify implementation

dates for each such mea-

sure; and specify those

administrative and enforce-

ment procedures to be used

in implementing said

measures.

(b) Submit to EPA detailed work

programs identifying speci-

fic measures to be imple-

mented to carry out by

Pebruary 14, 1979 recom-

mendations required by

subparagraph (4)(c) above;

specify implementation dates

156

for each measure.

(9) Pebruary 14, 1979:

(a) Certify to EPA that at least

a 20% reduction in Rush Hour

Auto Entries has been

achieved.

(b) Certify to EPA that all

measures identified under

subparagraph (8)(b) have

been fully implemented.

Inventory Report for the

accounting date of February

1, 1979.

(10) September 15, 1979:

(a) Certify to EPA that all

measures required to be

completed by September

14, 1979 as detailed in

the final report submitted

157

pursuant to subparagraph

(8)(a) above have been

fully implemented;

(b) Certify to EPA that at least

a 35% reduction in Rush

Hour Auto Entries has been

achieved.

(11) February 15, 1980 and annually

thereafter:

Submit to EPA a Parking Inven-

tory Report for the accounting

date of June l.

(12) September 15, 1980:

(a) Certify to EPA that all

measures required to be

completed by September

14, 1980 as detailed -n

the final report submitted

pursuant to subparagraph

(8)(a) above have been

158

fully implemented;

(b) Certify to BPA that at

least a 50% reduction

in Rush Hour Auto Entries

has been achieved,

(B) On and after May 14, 1977, neither the

Governor, Mayor nor any persons under their

control shall permit the construction or

operation of any new parking space except

in accordance with the ratios specified in

subparagraph A(2)(a) of this Order.

strued to permit the construction or

operation of any parking space ina

manner inconsistent with the requirement

of the New York regulations pertaining to

159

Indirect Sources (6 N.Y.C.R. Rpt. 203).

(D) Where the dates set forth in paragraph

(A) above require the submittal of substan-

tive reports, plans orc other information

to EPA, the Governor or the Mayor shall

also serve a copy of such documents upon

the other parties to this action. After

October 1, 1977, if they so choose, they

may report the information required by

this Order issued on the “reporting

date” next following the incremental

dates set forth above. The reporting

dates are established as the fifteenth

of February, April, June, August, October,

and December. The reporting dates estab-

lished by this paragraph shall not be

construed as altering in any way the

dates set forth in pacagraph (A) above

for the completion of the actions

therein established.

160

(E) The Governor, Mayor, and any person

to whom they delegate responsibilities

in accordance with paragraph (F) of

this Order shall immediately communi-

cate in writing to the Court, EPA and

other parties to this action informa-

tion relating to any conditions or

circumstances which will or may render

the State unable to comply in a timely

manner with the scheduled actions set

out in paragraph (A) above. The

communication called for by this para-

graph shall, wherever appropriate, be

accompanied by:

(1) Copies of any correspondence

between the State and any of

its departments and any con-

tractors or suppliers having

responsibilities in connection

with the scheduled actions

161

(2)

(3)

mandated by this Order.

Any other or additional docu- .

mentation from which it may

be inferred that any or all

of the scheduled actions set

out in paragraph (A) above

will not or may not be accom-

plished by the dates specified.

A discussion of any circumstances

Or conditions which will or may

render compliance with future

scheduled actions unachievable,

together with steps the State

has taken or will take to

mitigate such circumstances or

conditions.

Compliance with this paragraph shall not

constitute compliance nor excuse non-

compliance with the requirements of the

other paragraphs of this Order.

162

(F) The Governor and Mayor may delegate

any of the reporting or other require-

ments described hereinabove to such

person or persons as they may deem

appropriate provided, however, that

such delegation is certified in writing

to EPA and the other parties to this

action.

The terms of the Order will not have

the effect of extending or altering

in any way the date or dates fixed

for compliance with any provisions

of Title 40 of the Code of Federal

Regulations other than those to

which express reference is made in

the terms of paragraph (A) above.

163

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