Opposition — Beame v. Friends of the Earth
Supreme Court brief1977
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October Term, 1976
Nos. 76-1718, 76-1737
ABRAHAM BEAME, MICHAEL J. CODD, ABRAHAM N. GOODMAN,
MOSES L. KOVE, ELINOR GUGGENHEIMER, ROBERT A. LOW, ALEX
MAUTNER, VICTOR MARRERO, MORRIS TARSHIS, PAUL O’DWYER,
THEODORE KARAGHEUZOFF, P.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., ENVIRON-
MENTAL ACTION COALITION, INC., HARLEM VALLEY TRANSPOR-
TATION 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.
HUGH L. CAREY, JAMES MELTON, PETER A. A. BERLE and
THE STATE OF NEW YORK,
Petitioners,
against
FRIENDS OF THE EARTH, et al.,
Respondents.
ANSWER TO PETITIONS OF ABRAHAM BEAME, et al., and
HUGH L. CAREY, et al., FOR WRITS OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
ROSS SANDLER and DAVID SCHOENBROD
Attorneys for Respondents
(Natural Resources Defense Council, Inc.)
15 West 44th Street
New York, New York 10036
(212) 869-0150
TABLE OF CONTENTS
PAGE
ee GI 066666662 2
1. The substantive requirements of the Plan were
without exception the State’s and City’s choices 4
2. The State consistentiy supported the enforce-
eee does bee ec eves cees 5
3. The City did not challenge the Plan until
more than two years after the Plan’s approval 6
4. The State and City have not petitioned for
administrative remedies provided by the Clean
Air AbtũMMMMe... . . 7
5. The Distriet Court order of February 22, 1977
is in conformity with the Plan and has not
r neee 8
6. The State and City arguments confuse issues
settled in prior litigation with those issues now
Z 12
ARGUMENT:
PoINT I— The Petition By The State Was Not Timely
% ˙ „ C 14
PoINT II— The State and City, in order to make
their petitions appear significant and of Con-
stitutional dimension, make three misstatements.
The record, to the contrary of the State and
City allegations, shows that:
(1) The State and City were not prevented
from raising their constitutional claim by the
statutory scheme;
ii
PAGE
(2) The State and City, although they assert
that they have a valid constitutional claim,
do not make a constitutional argument under
the relevant cases; and
(8) The State and City assert that they have
been harmed because they are locked in, but
the record shows that they have failed to seek
available administrative relief ............... 14
„ oc 6.00 00000000 chess ine 84 dR ab de ee 22
CITATIONS
Cases:
Baker v. Carr, 869 U.S. 186 (1962ᷣ⸗ꝶ 17
Bowles v. Willingham, 321 U.S. 508 (1944) ...... 19
Department of Banking v. Pink, 317 U.S. 264 (1942) 14
Environmental Protection Agency v. Brown, 97 8. Ct.
WERE CIBTT). eee eee eee eee 00 15, 18
Friends of the Earth v. Cary (“Friends III"), 552
F.2d 25 (2d Cir. 1977) 8, 4, 5, 6, 9, 10, 11,
18, 15, 16, 18, 20, 21
Friends of the Earth v. Cary (“Friends II”), 585
F.2d 165 (2d Cir, 1976) ....... 8, 5, 8, 9, 18, 15, 20
Friends of the Earth v. Cary, — F. Supp. — (8.D.
N.Y. July 5, 1977) ᷑ F —T·e 8, 9, 10, 11
Friends of the Earth v. Cary, 422 F. Supp. 638 (S. D.
e. ee eee ee e e 6 8, 6, 9
Friends of the Earth v. Cary, 401 F. Supp. 1886
Cele BONO) cocncccccccvccccesscsicces 8,8
Friends of the Earth v. Environmental Protection
Agency (“Friends 1“), 499 F.2d 1118 (2d Cir.
1 2, 4, 5, 6, 7, 12, 18, 16, 20, 21
iii
PAGE
Friends of the Earth v. Wilson, 389 F. Supp. 1894
Sees BOOED. cheeses dedvcSuctdordoce 2, 5, 7, 8
Getty Oil Co. v. Ruckelshaus, 467 F. 2d 849 (8d Cir.
1972), cert. denied, 409 U.S, 1125 (1973) .... 19
Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1860) 17
National League of Cities v. Usery, 426 U.S. 8383
TRPUED Koccvecesceveccescoceocecceees 16, 18, 20
Oljato Chapter of Navajo Tribe v. Train, 515 F.2d
Ge Ge GA BOE. ccccceppecccccceccccse 19
Porto Rico v. Ramos, 282 U.S. 627 (1914) ........ 21
Prigg v. Pennsylvania, 41 U.S. (1 Pet.) 589 (1842) 17
Steward Machine v. Davis, 301 U.S. 548 (1987) ... 17
Testa v. Katt, 8380 U.S. 886 (1947) )))) 17
Train v. Natural Resources Defense Council, 421
„„ ons obs o500000060008%8 4, 8,17, 21
Union Elec, Co. v. Environmental Protection Agency,
427 U.S. 246 (1976))))): cee eeeenees 7, 21
United States v. Adamo Wrecking Co., 545 F.2d 1
(6th Cir. 1976), cert. granted, 97 8. Ct. 1596
D rene 19
United States Trust Co. v. New Jersey, 97 8. Ct. 1505
e ⅛ •ʃ²—ͥ [ tree 10
Vargas v Trainor, 508 F.2d 485 (7th Cir. 1974),
cert, denied, 420 U.S. 1008 (1975) .......... 16
Yakus v. United States, 321 U.S. 414 (1944) ...... 19
iv
PAGE
Constitution, Statutes and Rules:
U.S. Const. art. I, 8, el. 17
Clean Air Act, 84 Stat. 1676 et seq., as amended, 42
U.S.C. § 1857 et seg. 2, 7, 10, 16, 16, 18
Section 110 (a), 42 U.S.C. §1857e-5(a) ....... 4,18
— 110(a) (8) (A), 42 U.S.C, § 1857e-5 (a) (8) ,
Section 110 (e), 42 U.S.C. § 1857e-5(c) ........ 4,18
Section 110(f), 42 U.S.C. §1857¢e-5(f) ......... 7
Section 118, 42 U.S.C, 1857-88 8
Section 804, 42 U.S.C. § 1857h-2 ..........655. 2
Section 307, 42 U.S.C. §1857h-5 5 18, 14, 15
Section 307 (a), 42 U.S.C. § 1857h-5(a) ........ 18
Section 307 (b) (1), 42 U.S.C. §1857h-5(b) (1) ... 2,
15, 20
Section 307 (b) (2), 42 U.S.C. §1857h-5(b)(2) .. 16
LI 14
Fed. R. Civ. P. 60 (b) (0)))))))))))))):::: cere eens 11
1975 N.Y. Laws, Ch. 761oùI1 c ccc ccc eee 19
1975 N.Y. Laws, Ch. 7662 19
Miscellaneous :
Council on Environmental Quality, Seventh Annual
Report (1976) mk 11
IN THE
Supreme Court of the United States
October Term, 1976
Nos. 76-1718, 76-1737
:
HAM BEAME, MICHAEL J. Copp, ABRAHAM N. Goop-
MAN, Goses L. Kove, ELINOR GUGGENHEIMER, ROBERT
A.
FRIENDS OF THE EARTH, FRIENDS OF THE EARTH NEW
YoRK BRANCH, NATURAL Resources DEFENSE COUNCIL,
INC., Suna 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 YorRK STATE TRANSPORTATION
CoUNCIL, NoRTH EAST TRANSPORTATION COALITION,
West VILLAGE COMMITTEE, Davin Sive and Pau.
DUBRUL,
Respondents.
Huon L. CAREY, JAMES MELTON, Pyr A. A. BERLE and
THe STATE OF NEW YORK,
Statement of the Case
The petitioners seek to overturn a decision under the
Clean Air Act that compels Hugh L. Carey, et al., (here-
inafter the State“) and Abraham Beame, et al., (here-
inafter the City“) to implement strategies contained in
a Plan prepared by State and City agencies and sub-
mitted by the State’s and City’s highest officials to EPA
with full knowledge that under the Clean Air Act EPA’s
approval would impose binding federal obligations. The
thrust of the State’s and City’s claim is that the Clean
Air Act prevented them from raising valid Constitutional
arguments and that they are therefore deprived of sover-
eignty rights guaranteed by the Constitution, The record
of the case is to the contrary. The petitioners ignore or
mistake entire portions of the record and lower court deci-
sions, including holdings that procedural requirements
were fair as applied in this case, that they have had
ample opportunity to present their case in a timely
fashion, that they have taken inconsistent positions over
a period of years, and that they have failed to seek
available administrative remedies.
The instant case and its related cases have resulted
in seven written opinions in the lower courts. The deci-
sions in chronological order are as follows:
Friends of the Earth v. EPA, 499 F.2d 1118 (2d Cir.
1974) (Ratification of EPA approval of the New York
State Transportation Control Plan (hereinafter Plan“)
on petition for review pursuant to Section 307 (b) (1),
42 U.S.C. §1857h-5(b)(1)) (hereinafter “Friends 1“).
This petition for review was a separate proceeding and
should not be confused with the instant case, which is a
citizen suit enforcement action pursuant to Section 304,
42 U.S.C. §1857h-2. Friends I, 499 F.2d at 1128.
Friends of the Earth v. Wilson, 389 F. Supp. 1894
(S.D.N.Y. 1974) (Citizen suit pursuant to Section 304,
42 U.S.C. § 1857h-2; first decision in this case—denial of
preliminary injunction).
Friends of the Earth v. Carey, 401 F. Supp. 1386
(S.D.N.Y. 1975) (Second denial of preliminary injune-
tion and denial of summary judgment).
Friends of the Earth v. Carey, 585 F.2d 165 (2d Cir.
1976) (Reversal of the two District Court decisions and
direction that the City and State officials implement the
Plan forthwith based upon construction of the Clean Air
Act) (hereinafter “Friends II’),
Friends of the Earth v. Carey, 422 F. Supp. 638
(S. D. N. V. 1976) (Limitation of enforcement of the Plan
on remand from Friends II because of constitutional con-
siderations).
Friends of the Earth v. Carey, 552 F.2d 25 (2d Cir.
1977) (Reversal of the District Court’s constitutional
decision and issuance of writ of mandamus directing
}.ompt enforcement of the Plan) (hereinafter “Friends
Hr"),
Friends of the Earth v. Carey, — F. Supp. —
(S. D. N. V. July 5, 1977) (Decision annexed hereto as
Appendix I) (Denial of City’s motion to suspend for six
months or to eliminate the parking and bridge toll por-
tions of the District Court’s order of February 22, 1977
(City Pet.“ App. IV) on the grounds that the City was
in violation of procedural requirements of the order, had
alleged nothing not known to it as early as 1973, had
bypassed administrative remedies provided by the statute
and had already litigated its legal claims).
* References to “City Pet.“ and “State Pet.” are to the respec-
tive City and State petitions for writs of certiorari.
4
These decisions have stated, restated and settled the
relevant facts. The facts and holdings essential for this
petition are as follows.
1. The substantive requirements of the Pian
were without exception the State’s and City’s
choices
The Clean Air Act compelled the states to attain air
quality of specified standards and to do so within a
specified period of time. Train v. Natural Resources
Defense Council, 421 U.S. 60, 64-65 (1975). Each state
was to prepare and adopt a plan of its own design meet-
ing Clean Air Act criteria, §110(a), 42 U.S.C. § 1857 e-
5(a), or, should it fail, or refuse to do 80, the federal
EPA was to promulgate its own Plan. §110(c), 42
U.S.C. §1857¢-5(c). Here the State and City prepared
and, after public hearings, adopted their own Plan with
respect to transportation controls for the Metropolitan
New York Region.
By drafting and adopting its own Plan, the State and
City obtained substantial benefits under the Clean Air
Act. EPA was required to accept the policy choices of
the State and City and could not substitute its policy
choices for those in the Plan. Train v. Natural Resources
Defense Council, 421 U.S, at 79-80. Had the State and
City not committed themselves to implement the strate-
gies contained in the Plan, the Administrator would have
had to disapprove the Plan as being only illusory.
Friends III, 552 F.2d at 35. The State and City were
able to make choices within the context of their own
political, social and economic viewpoint. This latter
benefit was particularly important and was emphasized
by the New York Attorney General in defending the
Plan and the Administrator’s approval of it in Friends I.
(Brief of the New York State Attorney General sub-
mitted in Friends I on behalf of the Governor of the
State of New York, at p. 3).
Based upon this record the Court of Appeals found
that “(t]he architects of the Plan were not Congress or
the EPA but the State and the City of New York.”
Friends III, 552 F.2d at 34. The City did not and could
not claim that it was unaware of the “scope, terms and
reach of the Plan or of the scheme for its enforcement,”
such that it could not sooner question the Plan’s constitu-
tionality or interpretation. The Court ruled that the
record established that the “City, having voluntarily co-
operated with the State in the drafting and promulgation
of the very strategies now attacked by it, seeks in effect
to renege on its own creation and commitment.” Friends
III, 552 F.2d at 34.
2. The State consistently supported the enforce-
ability of the Plan |
The State did more than merely approve the Plan
and submit it for approval to the Administrator. The
State by the Attorney General defended the Plan in the
Court of Appeals when the legality of the Administrator’s
approval was challenged. Friends I. Later, when plain-
tiffs first ght a preliminary injunction, the Assistant
Attorney General informed the District Court Judge that
the Plan “is a legally enforceable plan; is a legally ade-
quate plan and that the state is committed . . . to fulfilling
its responsibilities thereunder.” Although he informed
the Judge that the state would not implement certain
strategies, he admitted that “If there is a valid legal
ground for such a refusal, we have not been able to find
it, your honor.” Friends of the Earth v. Wilson, 389 F.
Supp. at 1395, quoted in Friends II, 535 F.2d at 170.
When the plaintiffs appealed the District Court’s second
refusal to require implementation of the Plan, the State
declined to file a brief or participate in oral argument.
Friends II, 535 F.2d at 168 n.1. After Friends II upheld
the enforceability of the Plan under the statute and was
remanded for District Court enforecement, the State in
May 1976 filed proposed orders and stated that the State
would follow the Clean Air Act provisions by compliance
with either the 1973 Plan or a revised Plan. (Aff. of
Assistant Attorney General Paul S. Shemin, May 19,
1976 at 175, 7). In June 1976, the State did not join
the City’s motion challenging the constitutionality of
enforcement. Friends of the Earth v. Carey, 422 F.
Supp. 638 (S.D.N.Y. 1976). Finally, in January 1977,
as the Second Circuit noted in the opinion rejecting the
City’s constitutional claim, the State again did not file
a brief. Friends III, 552 F.2d at 33. In the four years
since April 1973, the State has either supported the en-
forceability of the 1973 Plan or refused to participate in
the City’s challenges to the Plan. Only with the instant
petition for certiorari has the State reversed its position
and, for the first time, attacked its own approval and
submission of the Plan. Thus over a four-year period,
which saw seven court decisions and the administrations
of three different Governors, the State has stood by its
own Plan.
3. The City did not challenge the Plan until
more than two years after the Plan’s ap-
proval
The City was a full partner in the preparation of the
Plan and allowed the State to submit the Plan to EPA
on its behalf. Friends III, 552 F.2d at 30 n. 3. The City
had knowledge that the Plan was enforceable nine months
before Friends I was decided. A memorandum to Ad-
ministrator Low’s immediate predecessor dated Septem-
ber 11, 1973 discussed precisely the legal enforceability
of the Plan. (Plaintiffs’ Ex. E41-45; cited in Friends III,
552 F.2d at 34-35). The City, however, did not partici-
pate in Friends I. Instead the City allowed the State to
7
argue in support of the legality of the Plan’s approval.
As a result, Friends I explicitly held that the Plan was
enforceable. In particular, the panel specifically men-
tioned the potential of enforced reduction of parking on
the City streets as available to citizens should the City or
State fail to carry out its duties under the Plan. Friends
J, 499 F.2d at 1124.
There was no petition for certiorari from Friends I,
and the City did not seek to intervene or otherwise attack
the holding of Friends I.
When plaintiffs first sought enforcement of the Plan
in October 1974, the City requested only that the District
Court Judge withhold enforcement pending completion of
the State’s and City’s attempt to revise the Plan pursuant
to the administrative procedures of the Clean Air Act.
Friends of the Earth v. Wilson, 389 F. Supp. at 1895.
Not until September 22, 1975, did the City first allege
that enforcement of the Plan might violate the Constitu-
tion. Thus over a period of two and one half years,
which saw three court decisions and the administrations
of two mayors, the City sat on its rights which it now
says it was prevented from asserting.
4. The State and City have not petitioned for
administrative remedies provided by the
Clean Air Act :
The Clean Air Act expressly provided several ave-
nues of administrative relief from Plan strategies. Union
Elec. Co. v. EPA, 427 U.S. 246 (1976). The State and
City have never sought an administrative remedy.
The State and City might have sought a postponement
pursuant to Section 110 (f), 42 U.S.C. §1857c-5(f). They
did not. |
The State and City might have revised the Plan pur-
suant to Section 110 (a) (3) (A), 42 U.S.C. §1857c-5(a)
(3)(A). EPA is “required” to approve a revision so
long as the ultimate effects of the State’s choice of emis-
sion limitations will produce compliance with the national
standards. Train v. Natural Resources Defense Council,
421 U.S. at 79-80. The State and City have at every
stage of the litigation announced their intent to revise the
Plan, but have never formally proposed a revision. The
District Court deferred enforcement pending revision in
Friends of the Earth v. Wilson, supra, but that promised
revision has not been submitted to EPA to this day.
The State and City might have obtained an acceptable
administrative order by conference pursuant to Section
113, 42 U.S.C. §1857c-8. In July 1976, when plaintiffs
made their second request for a preliminary injunction,
the State and City responded that they had been meeting
with EPA for eight months in a Section 113 conference
in hopes that an agreement could be worked out. The
District Court in part denied the prel’minary injunction
on that basis. Friends of the Earth v. Carey, 401 F.
Supp. at 1390; Friends II, 535 F.2d at 173, 178-79. But
these negotiations ended in failure because the State and
City refused to consent to any orders related to the four
main strategies of the Plan. In mid-September, 1976,
EPA unilaterally issued administrative orders against
the State and City. These administrative orders subse-
quently became the models for the District Court order.
Although these orders substantially diluted and length-
ened the deadlines of the Plan, the State and City made
no attempt to comply.
The City has annexed to its petition the District Court
order of February 22, 1977, which was signed after the
—— eee
— — —
decision in Friends III. (City Pet. App. IV). The City
then accuses the District Court in the context of this pe-
tition from Friends III of ordering harsh requirements
which jeopardize the existence of the City of New York,
(City Pet. 14-19). The order, however, conforms pre-
cisely with the State and City Plan and neither the State
nor City have challenged the terms of the order as being
inconsistent with the State and City Plan.
On remand from Friends II in April, 1976, the Dis-
trict Court sought proposed orders. EPA and plaintiffs
jointly submitted orders which EPA certified as being in
conformity with the 1973 Plan. The State did not argue
to the contrary and the City made only a few technical
comments. The City did not propose a counter order al-
though a time period was provided to do so. The District
Court, however, did not issue an order in 1976, but in-
stead issued its decision questioning the constitutionality
of enforcement. Friends of the Earth v. Carey, 422 F.
Supp. 638 (S. D. N. V. 1976). After that decision was re-
versed in Friends III, and, on remand, on January 28,
1977, the Distriet Court again asked for comment on the
form of the proposed order. On this occasion the City
did not object to the form of the order and agreed that
the order could be entered as previously submitted by
plaintiffs and EPA. Friends of the Earth v. Carey (July
5, 1977) (Appendix I at 6a-7a). The State and City did
not appeal from the order of February 22, 1977.
As a result, while the City now repeatedly character-
izes the order as being excessive, harsh and unrealistic,
it did not propose a counter order, or challenge the order
as issued. Thus the City lacks legal or factual basis to
initiate a challenge to the content or form of the order
for the first time in this Court on an appeal from Friends
III.
The record concerning these orders, which is not be-
fore this Court and not fully developed, undercuts the
10
City’s allegations concerning the orders. First, while the
City claims the order forces the 50% reduction in park-
ing, and while the Plan does contain such a strategy, the
District Court in its order allowed up to three years to
complete the 50% goal on the understanding that the
period was sufficiently long to allow time for a revision
on the Plan.
With respect to the City claim that the order elim-
inates “all” on-street parking, the District Court ruled
on July 5, 1977 during oral argument that the City’s in-
terpretation of the order contradicted the City’s own
prior interpretation as well as the Court’s understanding
based upon the 1973 Plan. Judge Duffy promptly
amended the order to undo the confusion which he found
was caused by the City’s violation of the order’s proce-
dural requirements. Friends of the Earth v. Carey, Ap-
pendix I at 13a. (It should be noted that most on-street
parking in the relevant areas has been illegal for years).
Finally, as to bridge tolls, the Court order requires
that the net revenue (estimated at $140 million) be used
for mass transit subsidies. (City Pet. App. IV at 106-
07). Bridge tolls for such purposes are not without offi-
cial support. United States Trust Co. v. New Jersey, 97
S. Ct. 1505 (1977). With respect to this Plan, however,
both houses of Congress, with the support of plaintiffs,
have passed bills amending the Clean Air Act which will
permit the Governor to eliminate the bridge toll require-
ment from the Plan if coupled with a commitment to pre-
pare within a year a plan for financing mass transit.
The bills are likely to become law, holding the possibility
that the bridge tolls strategy will soon be eliminated.
The economic allegations of the City are likewise pre-
sented for the first time in this Court. The City com-
plains that the Court of Appeals in Friends III did not
consider the economic impact of the decision. (City Pet.
11
15-16). But, as the Court of Appeals noted, the City did
not claim that for financial reasons it could not comply.
Friends III, 552 F.2d at 39 n.7. After filing its petition
for certiorari in this Court, however, the City moved to
suspend or eliminate the parking and bridge toll portions
of the February 22, 1977 order based upon broad, non-
specific economic grounds pursuant to Rule 60(b) (6),
Fed. R. Civ. P. That motion was denied because the
economic claims of the City were alleged too late for
a Rule 60 (b) (6) motion and because the City had admin-
istrative remedies. Friends of the Earth v. Carey, Ap-
pendix I at 8a-10a. The District Court’s denial of that mo-
tion has been appealed by notice of appeal filed on July
8, 1977. But the Court of Appeals did not before, and
this Court does not now have, any record to support the
economic harms alleged in the petition for certiorari.
Because there is no record on the City’s economic
claims, the Court is at sea with respect to the actual eco-
nomic effects of the Plan. First, the City’s extravagant
allegations of economic harm are suspect because the City
never balances economic benefits of the Plan against costs
of implementation and because it never specifies which
aspects of the Plan are the cause of excessive harm. This
in part follows from the fact that the thrust of the City’s
allegations is against the ultimate goals and of the Plan
strategies, not against the specifics of the Court order.
Secondly, air pollution inflicts enormous economic
costs. The Council on Environmental Quality reported
that New York City’s carbon monoxide problem was
uniquely severe. (Council on Environmental Quality,
Seventh Annual Report 213 (1976).) The City’s own
monitoring stations show that the eight hour national
health standard is violated in midtown Manhattan every
day that it is tested. Businesses leaving Manhattan prom-
inently mention air pollution, congestion and poor mass
transit as a cause for their leaving, and tourists complain
12
of and stay away for the same reasons. Studies show
that vehicles on New York City streets move more slowly
than they do on the streets of any other major United
States city, and that, as a result, the cost of moving goods
is higher. The New York Regional Plan Association has
supported the court order, declaring that the order’s re-
quirement to reduce illegal and legal on-street parking
in Midtown Manhattan would improve business rather
than hurt it. The Regional Plan Association pointed
out that if there were a total ban on automobile parking
on Midtown Streets during business hours, only 10,000
out of the 3,000,000 people coming into Midtown would
be inconvenienced while the rest would benefit.
Had the State and City raised their economic claim
below, these issues could have been sorted out. Instead,
the Court is presented with unsupported assertions and
generalizations which will have to be briefed for the first
time in this Court.
6. The State and City arguments confuse issues
settled in prior litigation with those issues
now appealable
The State and City say that the Plan’s adoption by
the State and submission to EPA was defective. But the
manner of adoption and legality of the Plan was settled
in Friends I. In that case Friends of the Earth and
other petitioners questioned the adequacy of legal author-
ity underlying the strategies of the Plan. The State sup-
ported the adequacy of the Plan. The Court of Appeals
rejected the petition, holding that EPA properly approved
the State’s Plan. As the later panel summarized the hold-
ing of Friends I,
“with the acceptance by the EPA and judicial rat-
ification by this court, the Plan became binding
—»—y— —
13
upon and enforceable against state and local offi-
cials, subject only to the narrow revision and post-
ponement provisions allowed by the Act.” Friends
II, 535 F.2d at 170.
It is important to note that Friends I is not the same
case as this case. It was a Section 307 (a) petition and
neither the State nor the City, nor anyone else, filed a
petition of certiorari.
Now in this Court, in the context of a defense to an
enforcement action pursuant to Section 304 of the Clean
Air Act, the State and City attempt to base their con-
stitutional claim on a conclusion contrary to that reached
in Friends I. To reopen that conclusion, however, raises
problems of res judicata, collateral estoppel and the juris-
diction of this Court. But instead of dealing with the
fundamental problems of attacking the holding of Friends
I at this late stage, the State and City attack Section 307,
by pretending that Section 307 took away their substan-
tive rights. But Section 307 is only a procedural statute
setting forth when questions related to the adoption of
the Plan can be raised. The essential fact for this peti-
tion is that when Friends I was briefed, argued and
decided, the State and City supported the legality of the
adoption and submission of the Plan. Friends III, 552
F.2d at 34-35. The State and City thus rewrite history
when they make the major premise of their constitutional
claim the assertion that the Plan was adopted in an ultra
vires or unlawful manner by the Governor and Mayor.
Any constitutional argument must begin with conclusions
of law as settled by Friends I; not with major premises
and assertions to the contrary.
4
14
ARGUMENT
POINT |
The Petition By The State Was Not Timely Filed.
The State’s petition for certiorari was filed after the
passage of 90 days. 28 U.S.C. §2101(c). Ninety days
frum March 4, 1977, the day the Court of Appeals denied
the City’s motion for rehearing en banc, expired on June
2. The State’s petition was not filed until June 6. The
State has therefore failed to properly invoke this Court’s
jurisdiction. Department of Banking v. Pink, 317 US.
264 (1942).
POINT Il
The State and City, in order to make their peti-
tions appear significant and of Constitutional di-
mension, make three misstatements. The record,
to the contrary of the State and City allegations,
shows that:
(1) The State and City were not prevented from
raising their constitutional claim by the statutory
scheme;
(2) The State and City, although they assert
that they have a valid constitutional claim, do not
make a constitutional argument under the relevant
cases; and
(3) The State and City assert that they have
been harmed because they are locked in, but the
record shows that they have failed to «sek available
administrative relief.
The heart of the City and State petition for certiorari
are the assertions that they have been prevented by
Section 307 of the Clean Air Act from raising a valid
15
constitutional defense to the enforcement of the Plan, with
the result that they have become unconstitutionally locked
into decisions made four years earlier. The assertions
are factually and legally false.
The first misstatement is the State’s and City’s claim
that they have been prevented from raising their claim
by Section 307 of the Clean Air Act.* The Clean Air
Act expressly provided a procedure to raise all claims
against the legality of a Plan—a petition for review pur-
suant to Section 307 (b) (1), 42 U.S.C. § 1857h-5(b) (1).
There was such a petition over the New York Plan, and
the State participated. The State took the position that
the Plan, which it and the City developed, approved and
submitted to EPA, had been lawfully approved by EPA.
Friends I. The State and City therefore are off on the
wrong foot when they commence their claim by charging
* Additional matters are obliquely suggested by the City
Petition, but not spelled out. The City implies that the Court
of Appeals precluded them from making their constitutional claim
in a more timely fashion. (City Pet. 11). That is false. No one
prevented the City from appearing in Friends I, and the City,
for reasons which it has never explained, elected not to argue
the constitutional claim in Friends II although it had earlier in
September 1975 submitted a full constitutional argument in the
District Court as a motion to dismiss. Its co-appellee, the City
Transit Authority, did make the constitutional argument in
Friends II based upon the then current Court of Appeals’ deci-
sions in EPA v. Brown, 97 S. Ct. 1635 (1977) and its companion
cases, and plaintiffs responded. It was perhaps because the City
had elected not to make its constitutional argument that the
Court of Appeals refused to rehear the completed appeal, but
required that the City make its constitutional argument as a
motion to vacate. Friends III, 552 F.2d at 28-29. The City
also mentions the absence of oral argument in Friends III and
the fact that Friends II and III were decided by the same panel.
But Friends III decided plaintiffs’ motions to recall the mandate
of the Friends II panel and was not a direct appeal. Oral argu-
ment takes place on such motions only where requested and the
City did not request to be heard orally.
16
that it was the statutory scheme of the Clean Air Act
that prevented them from making their constitutional
claim. It was because of that fact that the Court of
Appeals in Friends III held that the City had both waived
its right to assert contrary contentions and was pre-
cluded by Section 307 (b) (2) of the Clean Air Act from
raising them in an enforcement proceeding. Friends III,
552 F.2d at 35, citing Vargas v. Trainor, 508 F.2d 485
(7th Cir. 1974), cert. denied, 420 U.S. 1008 (1975).
In their second misstatement, the State and City
assert that what they have been prevented from raising is
a valid constitutional argument, i.e., that enforcement
of the Plan violates the Tenth Amendment. To make
such an argument, however, the City and State must
attack the holding of Friends III rejecting the City’s
substantive constitutional argument under the test of
National League of Cities v. Usery, 426 U.S. 833 (1976).
Friends III, 552 F.2d at 37-39. But neither the State
nor the City suggests that the Court of Appeals erred
in its analysis of the holding of Usery. This omission
is fatal.
This startling omission reduces the petitions for certi-
orari to an absurdity. The State and City argue that
theirs is a constitutional claim, but do not argue that
the Court of Appeals erred in its substantive constitu-
tional decision. Usery is virtually ignored, being cited
only in passing. (City Pet. 22; State Pet. 8). It is not
clear why this happened. In the City’s brief to the
Court of Appeals below, Usery was their primary reli-
ance, being cited twenty times in their brief. (The
State, of course, filed no brief.)
The constitutional argument which the City does make,
is, in any event, patently incorrect. The City’s argu-
ment proceeds upon the false assumption that the Clean
Air Act does, in fact, regulate state processes. The City
17
then states a flat rule that no federal law can create a
binding mechanism by which states become bound (City
Pet. 24). Because the Usery opinion contains no support
for this proposition, the City resorts to slavery-era cases,
such as Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539
(1842), and Kentucky v. Dennison, 65 U.S. (24 How.)
66 (1860), for the proposition that federal law may not
force state officials to take any affirmative action.
Prigg, which held, inter alia, that a state court hs a
duty to implement federal law was, in effect, overr.
on this point by the Civil War, as the Supreme Court
made clear in Testa v. Katt, 330 U.S. 386 (1947).
To the extent that Kentucky v. Dennison, supra, has
any remaining vitality, it limits the ability to require dis-
eretionary action from a state official. Baker v. Carr,
369 U.S. 186, 245 (1962) (Douglas, J. concurring). En-
forcement of state implementation plans under the Clean
Air Act involves only mandatory duties which have been
established under the Plan.
The City’s reliance upon Steward Machine Co. v. Davis,
301 U.S. 548 (1937) does not raise a constitutional issue
either. Steward Machine involved a federal statute which
expressly directed states to conform their internal pro-
cedures to the federal rules. The Clean Air Act, to the
contrary, provides the states with broad freedom so long
as the plan devised by the state will result in the meeting
of federal ambient air quality state standards. Train v.
Natural Resources Defense Council, supra. Furthermore,
Steward Machine was not a commerce clause case, but a
general welfare clause case. U.S. Const. art. I, § 8, el. 1.
The distinction is of primary importance because, while
the federal government can spend money for the general
welfare, it cannot directly legislate for the general wel-
fare. If Congress were permitted to condition its appro-
priations in any way it desired, then it would be able to
economically coerce from the states all the powers re-
18
served to them under the Tenth Amendment. Since the
Clean Air Act is within the scope of Congress’ enumerated
powers, the analysis must be made upon the standard of
Usery, not on the more restrictive standard of Steward
Machine.
Thus, the City’s attempt to paint this case as present-
ing in ripe fashion the issue not decided in EPA v.
Brown, 97 S. Ct. 1635 (1977), is simply wrong. EPA
v. Brown concerned EPA promulgation of strategies pur-
suant to remedial authority under Section 110(c). This
case concerns a state adopted plan which EPA only ap-
proved pursuant to Section 110(a). Friends III, 552
F.2d at 36-37. The City’s second attempt to relate this
case to EPA v. Brown because of alleged court-ordered
legislation is equally wanting. The Court of Appeals
held that legislation that may be required is “neither
substantial nor directed toward an integral governmental
function,” and that, in any event, 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.”
Friends III, 552 F.2d at 38. That holding was based
upon the Court of Appeals’ analysis of Usery. The State
and City do not attack that analysis, and, hence, have
failed to set forth any basis for granting review.
The District Court order, in any event, issued subse-
quently to Friends III, does not compel legislation, but
only requires the State and City to certify to the District
Court that adequate legal authority exists to perform
necessary action under the order. (E.g., City Pet. App.
IV 105-107). The only time that the State has had to
make such a certification, it certified that existing State
legislation was adequate. On March 14, 1977, the State
certified that there was no additional need for State
legislation to collect bridge tolls on the East and
Harlem River bridges. Furthermore, although the City
19
broadly asserts that no legislative body has ever ratified
or passed legislation authorizing State or City officials to
take steps required under the Plan, the fact is to the
contrary. The State Legislature, to implement the Plan,
passed legislation necessary to require retrofit of heavy-
duty vehicles (Strategy A-2) and to begin emission in-
spections for light-duty vehicles (Strategy A-5). 1975
N.Y. Laws, chs. 761 and 762. The purpose in passing
these statutes was to comply with the Plan. 1975 N.Y.
Laws 1696, 1771-72 (McKinney).
The remaining claims of the City and State are not
of constitutional dimension, but are wholly statutory or
state law questions. Section 307 has been upheld as an
important and intentional procedural device to speed
finality in the adoption of Plans. Getty Oil Co. v. Ruckel-
shaus, 467 F.2d 349 (3d Cir. 1972), cert. denied, 409
U.S. 1125 (1973); Oljato Chapter of Navajo Tribe v.
Train, 515 F.2d 654 (D.C. Cir. 1975). The State and
City do not attack those holdings. Nor do the State and
City assert that the Congressional scheme is unconstitu-
tional or violates the principles laid down in Bowles v.
Willingham, 321 U.S. 503 (1944) and Yakus v. United
States, 321 U.S. 414 (1944). This case is thus unlike
United States v. Adamo Wrecking Co., 545 F.2d 1 (6th
Cir. 1976), cert. granted, 97 S. Ct. 1596 (1977), where
the petitioner claims that the regulation is invalid on its
face and where it had not participated in the adoption,
submission and review of the regulation, all in the context
of a criminal case.
The State and City do make a vague claim that they
are entitled to an exception to procedural requirements
whose constitutionality and literal meaning they do not
challenge. But their plea for an exception is under-
cut in this case by the absence of a strong substantive
argument, by res judicata and related doctrines, and
by consideration of fairness. First, they simply do not
assert that the Court of Appeals erred in its application
20
of Usery. Second, the issues they do raise were all de-
cided in Friends I, where the Court of Appeals upheld
the legality and enforceability of the 1973 Plan in a
Section 307 (b) (1) proceeding in which the State partiei-
pated and argued that the Plan was lawfully approved by
EPA. No party sought certiorari from that decision.
Both Friends II and Friends III relied upon the prior
holding and conclusion that the Plan, submitted by the
State and City, was controlling and must be carried out,
and that it was binding upon and enforceable against
state and local officials. Friends II, 535 F.2d at 169, 170;
Friends III, 552 F.2d at 31, 32, 34-35.
Yet in their petitions for certiorari the State and
City nevertheless assert that the Plan was void ab initio
because of flaws in the state procedures used to adopt
and submit the Plan to EPA. But these state law claims
go to whether the Plan is binding and enforceable against
State and City officials—the precise issue settled in
Friends I. The State and City offer no explanation as
to how this court can now review that decision’s un-
appealed and settled holding.
The issues of collateral estoppel and res judicata are
substantial. The City and State prepared the Plan to-
gether in extremely close cooperation. Friends III, 552
F.2d at 30 n.3, 34, 35; see also prepared statement of
Robert A. Low, Implementation of Transportation Con-
trols: Hearings Before the Subcom. on Environmental
Pollution of the Senate Comm. on Public Works, 93d
Cong., 2d Sess. 397 (1974). The State submitted the Plan
on behalf of itself and the City, and then defended it in
the Court of Appeals. Friends III, 552 F.2d at 30 n.3,
21
31. There is direct evidence of petitioners’ knowledge
that the Plan would be enforceable in the form of written
legal advice dated September 11, 1978. Friends III, 552
F.2d at 34-35. That written advice preceded the oral
argument in Friends I by seven months and the decision
by nine months. (Oral argument on April 24, 1974 and
decision on July 1, 1974).
The argument for an exception would appear hopeless
in any event. EPA and the Court of Appeals in Friends
I relied upon the Mayor, the Governor and the State
Attorney General as to the legality of the Plan. As this
Court has held with respect to a State’s Eleventh Amend-
ment rights:
“the immunity of sovereignty from suit without
[the State’s] consent cannot be carried so far as
to permit it to reverse the action invoked by it and
to come in and go out of court at its will, the other
party having no right of resistance to either step.”
Porto Rico v. Ramos, 232 U.S. 627, 682 (1914).
The third major misstatement made by the State and
City is that they are locked into their prior decisions. But
here again, the facts are to the contrary. The Clean Air
Act provides administrative routes to amend or change
earlier choices of policy by the State and City; postpone-
ment, revision and variance, and administrative compli-
ance orders. Train v. Natural Resources Defense Council,
supra; Union Elec. Co. v. EPA, supra. The State and
City never sought either a postponement, variance or re-
vision, and failed to come to agreement with EPA on com-
pliance orders. Thus, the failure to alter the 1973 Plan
lies not with the statute, but with the conduct of the
defendants.
The petitions for writs of certiorari should be
denied.
Respectfully submitted,
Ross SANDLER and DAVID SCHOENBROD
Attorneys for Respondents
(Natural Resources Defense
Council, Inc.)
15 West 44th Street
New York, New York 10036
(212) 869-0150
Assisting on this Brief
ERIC A. GOLDSTEIN, Esq.
MICHAEL GERRARD
— —
APPENDIX
.
— —
la
APPENDIX I
Opinion and Order
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
74 Civ. 4500
tl > — —
FRIENDS OF THE EARTH, etc.,
Plaintiffs,
Vs.
HuGH CAREY, et al.,
Defendants.
July 5, 1977
2 P.M.
Before: KEVIN THOMAS DUFFY, ä
District Judge.
APPEARANCES:
Ross Sandler, Esq.,
David Schoenbrod, Esq.,
Eric Goldstein, Esq.,
Attorneys for Plaintiffs.
W. Bernard Richland, Esq.,
Attorney for City Defendants,
By: Joseph Bruno, Stephen Kramer and Jack
Brennan,
Assistant Corporation Counsel.
Louis J. Lefkowitz, Esq.,
Attorney for State Defendants,
By: Paul Shemin, Esq., of Counsel.
Robert B. Fiske, Esq., U.S. Attorney,
Attorney for Federal EPA,
By: Anne Eristoff, Esq., Assistant U.S. Attorney.
2a
Appendix I—Opinion and Order
(DuFFy, J.)
Plaintiffs have moved this Court for an order com-
pelling the city defendants to comply with Strategy B-3
of the Transportation Control Plan, the parking reduction
strategy as it is incorporated into the February 22, 1977
order of this Court.
The defendant United States Environmental Protec-
tion Agency (the EPA) has joined in the plaintiffs’ ap-
plication. The city defendants have cross-moved to modi-
fy or to stay the February 22, 1977 order. The State
apparently has joined in the city’s motion.
Prior to discussing the arguments advanced by the
parties, it would be useful to briefly outline the history
of the Transportation Control Plan and of this case.
In 1970 Congress amended the Clean Air Act to re-
quire the Administrator of the EPA to establish two types
of air quality standards: The “primary’ mbient”, which
was intended to protect the public health, and the Second-
ary ambient“, designed to protect the public welfare.
The primary standards governing pollution levels were
promulgated on April 30, 1971. Section 110(a) of the
Clean Air Act required each State to submit a plan
providing for implementation, maintenance and enforce-
ment of the primary standards. Each State plan was to
be filed by April 1973, and the primary air quality stan-
dards actually met by May 31, 1975.
The State of New York did in fact submit a plan to
the EPA on April 17, 1973, entitled “The Transportation
Control Plan for the Metropolitan New York City Area,”
which contained 32 so-called strategies for reducing air
pollution. Among them were the four strategies contained
in my February 22, 1977 order: a selective ban on taxi
3a
Appendix Opinion and Order
cruising, a limitation on after-hour deliveries, a reduction
of parking and the imposition of tolls on the East and
Harlem River crossings.
On June 22, 1973, the EPA approved the plan sub-
mitted by the State of New York with a few modifications
including the grant, at the State’s request, of a 19-month
extension to comply with the photo-chemical oxidant and
carbon monoxide standards.
Following the EPA approval, a group known as
Friends of the Earth petitioned the Court of Appeals
pursuant to Section 307 (b) (1) of the Clean Air Act for
review of the approved New York plan, alleging that it
was inadequate to meet the air quality standards of the
Act. The Court of Appeals substantially upheld the plan
and remanded to the EPA for review of several aspects
of the plan. In the same opinion the Court of Appeals,
by Judge Lumbard, declined to order compliance with the
plan on the ground that the jurisdiction to enforce did not
lie with the Court of Appeals, but rather with the District
Court through an enforcement action brought by the EPA
under Section 113 of the Clean Air Act, or by a private
citizen under Section 304.
On August 5, 1974, the plaintiffs served notice under
Section 304 (b) (1) (a) of their intention to commence a
citizens’ suit. On October 11, 1974, at the expiration of
the required sixty-day waiting period the plaintiffs com-
menced this action. Thereafter, the plaintiffs moved for
a preliminary injunction enforcing the plan. In oral
argument the Assistant Attorney General representing
the State of New York acknowledged that, and I quote:
“This plan is a legally enforceable plan, is a legally ade-
quate plan and that the State is committed to fulfilling
its responsibilities thereunder.”
4a
Appendix I—Opinion and Order
At that time the Assistant Attorney General also ad-
vised this Court that the Governor Elect supported fully
the implementation of the plan as it existed. The attorney
for the city defendants argued that I should deny the
injunction, in light of the pendency of negotiations with
the EPA aimed at a revision of the plan.
On December 16, 1974, I ruled that “The policy
favoring judicial restraint in cases such as this coupled
with the probability of enforcement action by the USEPA
dictate the application for preliminary injunction at this
time be denied.”
389 F. Supp. 1394, 1396.
Seven months later plaintiffs moved for an injunction
against the planned increase in the New York City sub-
way fare and again moved for injunction enforcing the
Transportation Control Plan. Once again I denied the
injunction against the fare increase, since the Transporta-
tion Control Plan contained no provision addressing the
subway fare. And I denied the renewed request for en-
forcement of the plan and denied summary judgment to
the plaintiffs.
There is an opinion on that in 401 F. Supp. 1386.
On August 29, the day after my filing that opinion,
the plaintiffs filed a notice of appeal from my order.
On September 23, 1975, the city moved to dismiss the
complaint on the constitutional grounds. The motion was
held in abeyance pending the appeal to the Second Circuit.
On April 26, 1976, a panel of the Court of Appeals
affirmed my decision not to enjoin the fare increase, but
5a
Appendix I—Opinion and Order
reversed my denial of summary judgment to the plaintiffs.
In so doing the Court of Appeals stated as follows:
“In denying relief under the citizen suit provision the
Court referred to the existence of ongoing negotiations
between the EPA and the State and City authorities de-
signed to reach consent decrees in carrying out the Plan’s
mandated strategies. We join the District Court in
recognizing the utility of such deliberations and the de-
sirability of obtaining compliance through consentual
means. But it is equally clear that the statute empowers
neither the EPA nor the State to delay the approved
Plan’s strategies through negotiations, be they formal or
otherwise. Negotiations are no substitute for enforce-
ment and for timely compliance with the Plan’s mandated
strategies. Consequently, the District. Court erred in
permitting the continuation of the EPA-State discussions
to bar suit by citizens groups seeking judicial enforce-
ment of the Plan’s expressed provisions. The Act authorizes
only two procedural routes for modifying the Plan: a
Section 110 (a) (3) revision or a Section 110 (f) post-
ponement. In all other instances the State is relegated
to a lone option: compliance.“ That can be found at
535 F. 2d 165 at 178.
Partial summary judgment for the plaintiffs was then
entered. The city petitioned the Court of Appeals for a
rehearing. And although rehearing was denied, the
Court of Appeals modified its mandate to permit me to
consider the city’s motion to dismiss as previously men-
tioned, which was filed on September 23, 1975.
In an opinion on July 13, 1976, reported at 422
F. Supp. 638, I ruled, and I am quoting only in part,
“that the proper construction of Section 304 is that
6a
Appendix I—Opinion and Order
citizen suits are authorized against the states and their
subdivisions only to the extent that they are actual pol-
luters or violators of the plan’s requirements.”
The parties appealed from my order and the plaintiff
filed a petition for a writ of mandamus against me in
the Court of Appeals.
In January 18, 1977 the Court of Appeals reversed
my determination and granted the petition for mandamus,
directing me to reinstate partial summary judgment as
to the four strategies.
In the course of its opinion on the Court stated as
follows:
“At this date, almost four years after the Administra-
tor’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 con-
tentions by way of a petition for review of the Ad-
ministrator’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.”
That is found at 552 F.2d 25 at 35.
On the very same date that the mandate from the
Court of Appeals was filed, I ordered all counsel in this
case to appear before me. Counsel for the City was asked
if there was any reason why I should not enter partial
summary judgment for the plaintiff in light of the Court
of Appeals mandate. Counsel for the City voiced no
objection and in fact indicated that the form of the order
Ta
Appendix I—Opinion and Order
submitted by counsel for the plaintiff and for the EPA
was agreeable to the City with the sole exception of the
dates for compliance with various stages of the plan.
On February 22, 1977, I filed an order which incor-
porated the four strategies contained in the plan. The
order established a series of compliance deadlines aimed
at the ultimate implementation of those strategies. Pur-
suant to Rule 60 (b) (6) of the Federal Rules of Civil
Procedure the city defendants now seek to stay two of
the four strategies, the parking reduction strategy, B-3,
and the bridge volls strategy, which is B-7.
In support of its application the city has filed a 300-
page submission which includes affidavits from the Cor-
poration Counsel, the Mayor, the Deputy Mayor for
Economic Development, Chairman of the New York City
Chamber of Commerce, the Administrators of the New
York City Environmental Protection and Transportation
Agencies, and the Police Commissioner.
Included as exhibits to the affidavits are a study
entitled “Evaluation of the Economic Impact of the
Court-ordered Transportation Control Plan Strategies,”
dated June 21, 1977, a June 1977 study of the Transpor-
tation Control Plan prepared by the Department of Air
Resources, and an April 1977 study by the New York
City Transportation Administrator, entitled “Traffic im-
pact of tolls on the East and Harlem River Bridges.”
The plaintiffs herein have produced a number of
documents which if this were a trial could be considered
affecting the viability of such studies. This is not a
trial, howerer, and I see no need to get into the matter.
In seeking a stay or modification, the City relies upon
the principle of equity, succinctly stated in Justice Car-
8a
Appendix Opinion and Order
dozo’s opinion in United States v. Swift & Company, 286
U.S. 106; page 114, 1932, “A continuing decree of in-
junction directed to events to come is subject ** to
adaptation as events shape the need.“
This approach can also be found in other cases but
not as well put. Thus it is for me now to determine
whether any events have occurred since the entry of the
February 22, 1977 order which would suggest the need
for adaptation or stay of the order.
The arguments advanced by the city fall into four
broad categories.
First, that the plan will be economically destructive
to the city.
Second, that the plan will be ineffective in reducing
air pollution.
Third, that the plan removes discretion from city
officials to cope with police and traffic problems.
And fourth, that the likelihood of the Supreme Court
granting the city’s petition for certiorafi warrants a
stay.
The economic consequences of the plan and its effec-
tiveness in improving air quality are issues which were
assessable by the city officials long before the entry of the
February 22nd order. Although the city has conducted
surveys and studies, apparently since February 22, there
is no indication that these studies were based upon newly
developed facts. Rather, they appear to be based on
data which has always been obtainable.
9a
Appendix I--Opinion and Order
The effectiveness of the plan and its economic con-
sequences are indeed the legitimate concerns of the muni-
cipal officials. But the time to begin evaluation is not
after the submission of the plan, approval by the EPA,
three appeals to the Second Circuit and the entry of a
final order enforcing the four strategies. To permit a
stay of the plan at this stage would be to place a premium
upon inaction.
The claim of unwarranted interference with the dis-
cretion of the city officials was raised in the city’s motion
to dismiss on Tenth Amendment grounds, and as pre-
viously noted, I ruled substantially in the city’s favor.
But that determination has since been reversed on appeal.
Having raised the claim and lost, the city defendants may
not attempt to relitigate in this forum.
Nor does the pending of a petition for writ of certio-
rari provide an adequate basis for a stay. No factual or
legal basis has been offered for the Corporation Counsel’s
belief that the city’s certiorari petition will be acted upon
favorably. Before a stay will be granted, more must
be shown than a party’s belief that his side will ultimately
prevail. See O’Brien v. Brown, 409 U.S. 1 (1972).
In the light of the lengthy history of this case and
the express direction of the Court of Appeals that I
implement the plan expeditiously, the application for a
stay is denied.
The city officials are not, however, without recourse
to present new insights into the efficacy of the plan.
Congress has provided that revisions of an approved plan
may be sought through application to the EPA pursuant
to Section 110(a) (3) of the Clean Air Act. A postpone-
ment may also be sought under Section 110(f). The
10a
Appendix I—Opinion and Order
EPA, the agency responsible for enforcing the Clean Air
Act, is best able to determine whether aspects of the plan
require revamping.
I now turn to the joint application by the plaintiffs
and the EPA to comsel compliance with my order as it
related to strategy the parking reduction strategy.
The order requires me City defendants to submit to the
EPA by May 14, 1977 a detailed work program to reduce
and manage parking throughout the borough of Man-
hattan.
In regard to the Midtown Core—that area of Man-
hattan from 59th Street to 34th Street and 8th Avenue
to 8rd Avenue—the submission was to contain a plan to
eliminate all legal on-street parking spaces by June 14,
1977 as well as a plan to eliminate illegal on-street park-
ing by January 14, 1978 through increased towing cap-
abilities at a minimum level of removal of 500 automobiles
per day. The City was to have submitted legally enforce-
able limitations upon the construction of new commer-
cially available and non-commercially available parking
spaces within the Midtown Core.
As to the Downtown Core—that area extending from
Canal Street to the extreme southern tip of Manhattan
between the East and Hudson Rivers—the City was
required to submit a work plan—also by May 14, 1977—
to provide for a ban on general on-street automobile
parking between the hours of 8:00 A.M. and 6:00 P.M.
with the exception of existing metered spaces which could
be used legally at times other than rush hours. That is,
from 7:00 A.M. to 10:00 A.M. and from 4:00 P.M. to
7:00 P.M. on week days. The ban was to take effect on
June 14, 1977.
lla
Appendix I Opinion and Order
The downtown core work plan was also to have con-
tained provisions for eliminating illegal on-street parking
by January 14, 1978, through increased towing capabili-
ties. Legally enforceable limitations on construction of
new commercially-available and non-commercially avail-
able parking also were to have been submitted.
For the peripheral area, that is, the remainder of
Manhattan south of 59th Street from the East River to
the Hudson River, those areas between Canal Street and
59th outside of the midtown core, the city was to have
submitted a work plan by May 14 to provide for a ban
on general on-street parking from 8:00 A.M. to 6:00
P.M. on week days with the exception of existing metered
spaces which could be used legally at times other than
rush hours. The peripheral area ban is to become effec-
tive in August, on August 31, 1977. The peripheral area
work plan could at the city’s option provide for parking
on specified streets which are primarily residential and
are zoned as such. Also by May 14, the city was to have
submitted work plans for parking surcharges, late open-
ings, car pool rate reductions, space capacity limitations
by time of day and zoning bonuses for closings. In
addition, a par’ pa‘. inventory was to have been
submitted.
The attorney for the Environmental Protection Agency
has filed an affidavit with this Court, dated June 27, 1977,
in which she submits that “The city defendants failed to
submit any program of any kind to EPA by May 14,
1977, and none has yet been submitted.”
Actually, on May 14, 1977, this Court did receive a
submission from an Assistant Corporation Counsel which
stated in part as follows:
12a
Appendix I Opinion and Order
“Pursuant to Paragraph E”—and I am quoting
again—“of the order implementing Strategy B-3, I wish
to advise the Court that it is impossible for the city to
make a submission required by Paragraph A,” which
concerns the midtown core, the downtown core and the
peripheral area, insofar as these paragraphs relate to
illegal on-street parking. “Enclosed herewith are copies
of documents relating to the police department’s towing
program. It is the City’s belief that the number of tows
required by the paragraphs of the order was erroneously
computed.
“We will shortly seek modification of the order so as
to correct this error. In addition, it is impossible to
comply with the provisions of paragraph A (a) (II) (aa)“
—that is the downtown core—“insofar as the paragraph
relates to legal on-street parking because of the time
required to manufacture and install necessary parking
signs. Moreover, the submissions required by Paragraph
A(2)(IV)” which deal with parking surcharges, late
openings and car pools and all the rest of that, “will
be included in the Parking Management Study.” A copy
of a proposed contract for this study was submitted to this
Court on April 1, 1977.
Accompanying the letter were a number of submissions
which purported to comply with the February 22 order:
For example, the city submitted the following work plan
for the midtown core, and I quote: “There are 206 meters
with a revenue of $200,607. The meters can be made in-
operative within 30 days by the Department of Traffic.”
It is apparent from the city’s own admissions con-
tained in its May 14 letter to the Court that it has not
fully complied with my order. My order required a
work plan. Nothing even approaching that was sub-
mitted.
13a
Appendix I Opinion and Order
One of the immediate consequences of the failure to
submit a proper work plan in advance of implementation
is the present dispute among the parties as to the scope
of the parking ban for the midtown core.
On June 14, 1977, the city imposed a 24-hour ban on
all on-street parking in the midtown core. Plaintiff argued
that the city’s action was over-inclusive and a ban during
business hours is all that is required. Had the city
properly submitted its work plan to the EPA prior to
the implementation, the ambiguity of which we heard so
much today could have been eliminated prior to today.
In light of the city’s admitted failure to comply with
the order, the following is hereby ordered:
“1. Counsel for the EPA is directed to forthwith
submit a proposed order incorporating the one amend-
ment to the February 22 order which I have approved
already; that is, modification of the effective hours of
midtown core parking ban;
“2. The city is directed to submit to the EPA within
ten days the work plans required by Paragraphs 2(a) (i)
(aa) and 2(a) (ii) (aa) of the February 22 order;
“3. The city is directed to submit to the EPA within
thirty days all other materials which were originally
due on May 14;
“4. Should any of the defendants fail to comply with
any of the above directons, counsel for the plaintiff or
for the Environmental Protection Agency may commence
contempt proceedings by submitting a proposed order to
show cause.
. So ordered.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.