# Petition — Beame v. Friends of the Earth > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1953%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 902 ## Text 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 i ee 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) ---------------------- ii 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 ™ Oe et ne 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 4. 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----- - iv * 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- 2 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- 2 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 3 = 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. 4 — (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), 6 ld » 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 7 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 8 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; (c) Strategy B-3, which requires the 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. 9 ‘ 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 10 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. ll \ | 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). 12 > e a it 2 - - 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 13 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 14 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 15 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 1 | not addressed. The impracticality of toll plaza construction on bridges which were never designed to accommodate them is Similarly ignored. 16 sie al siase) atl” Nolte neon tm IN tu li A achat ecient in srs scabs cst 0 ee Rah Ate Na i hod nM MCA VA AAD Ma ls 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 17 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 18 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. 19 —— 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 20 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. 21 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 22 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). 23 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. 24 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 25 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 26 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 27 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. 28 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. ... 29 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. 30 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 31 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, 32 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 33 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 34 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. 35 —— —— ' 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 36 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 2 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 4 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. 5 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 7 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 9 -_— 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. 10 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. ll § 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 12 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 13 3 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 14 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 15 "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." 16 4 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). 17 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 18 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 19 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: 20 “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: 21 “(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 22 — ve 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 23 (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). 24 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 6 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 25 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 26 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. 27 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 28 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 29 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 30 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. 31 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 32 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, 33 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). 34 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 35 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 36 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 37 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 38 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 39 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). 40 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, 41 179-80. 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 42 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, 43 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 44 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 45 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 46 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 47 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 49 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 50 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. 51 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 52 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 53 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. 54 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 55 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 56 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, 57 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. 58 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 59 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 7 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 60 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. 61 APPENDIX II 62 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. 63 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 64 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 65 iy 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 66 ee ere APPENDIX III 67 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. 68 -— 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 70 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 71 (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 72 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, 73 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 74 following: 1) 2) 3) 4) 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; 75 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 76 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 77 eg —— 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 78 79 APPENDIX IV f ! 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, 80 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 81 ag . 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 82 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 83 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 84 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; 85 — (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 86 (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 87 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 89 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 90 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 91 (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 92 a 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% 93 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: 94 * 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. (c) Certify to EPA that the measures 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 95 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. (c) Certify to EPA that the measures 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. 96 (b) Certify to EPA that there has been at least a 20% reduction in taxi VMT from the base level. (c) Certify to EPA that the measures 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: 97 (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. 98 aoa a (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 99 te , 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. (C) 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 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 t x ; Y L r iy ; He , by 1. a 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. (c) Submit to EPA a copy of the 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 aa +e i y 7 ‘ (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 (c) Certify to EPA that all legal 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. (C) The Governor or the Mayor shall im- 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 Ps 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. (c) If the certification and 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 f [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1953%3A1. Public record. Not legal advice.