Petition for Writ of Certiorari — New Jersey Citizens for Clean Air, Inc. v. New Jersey Sports & Exposition Authority
Supreme Court brief1973
Ask Donna
What actually matters in this document.
Text
& Quars@wea, - v4 3° 250 ,
SUPREME-COURT,_U.-S: 3 r
cial
i
"S 3 saitG
Re
— MICHAEL RODAK, aa.
Supreme Court of the Hnited ‘States $
October Term, 1973
: | No. A-1154
NEW JERSEY CITIZENS FOR CLEAN AIR, INC,, et al.,
Petitioners,
US.
NEW JERSEY SPORTS AND EXPOSITION AUTHORITY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME
COURT OF NEW JERSEY
FREDERICK C. MEZEY
Attomey for Petitioners
MEZEY & MEZEY
93 Bayard Street
New Brunswick, New Jersey 08901
(201) 545-6011
LUTZ APPELLATE PRINTERS, INC.
(6395) Law and Financia! Printing
South River, N.J. New York, N.Y. Philadelphia, Pa. Washington, D.C.
we é (201) 257-6850 (212) 565-6377 (215) 563-5587 (202) 783-7288
Opinion Below ..-.4-+-e-e-ee-
Jurisdiction eee 6 6 6 eo 4-8
Questions Presented *.....-.
Statutory Provisions Involved .
Statement of the Case ......
Reasons for Granting the Writ ......
I. The State Court decision allowing
the construction and operation of
the sports complex conflicts with
the Federal Clean Air Act and is
in violation of petitioners’ rights
thereunder. ...cccccccacevece Sl
Il. Because of the frequency with which
factual findings will be made by state
agencies under the Clean Air Act,
this Court should determine a prop-
er standard of judicial review.
Page
oe 2
oo 8
oe 8
oo 4
oe §
oo 2
cose
BELL TERME ART ORNS rs aXS
SOA FREI PHS DELLE RE UPI L ELE BOLE LATED GED, Coe OGY REET eat
-2> Sai aeRO
ESET FR Se EE
Se ESOP RO B.C PR we ae ee
he MOSER AS.
POPSET tg tl
it
Indez
*
a
*
te
Page
III. With reference to the instantcase,
a review of the Agencies; factual
findings is appropriate because: a)
the Agencies did not consider certain
legal questions that affected the va-
lidity of their findings; b) the find-
ings were not based on substantial
: evidence and c) the intended use of
3 the project is greater than pre-
: sented to the agencies. .....-+..-. 30
seine Ss ctios Sat WEE at
a. The validity of the Agencies’
factual findings were based on
legal questions not considered... . 30
b. The Agencies’ findings were not
based on substantial evidence. ... 31
c. The Agencies were not presented
data on the full use of the facility... 32
1V. When the answers to the substantive
questions presented here are re-
solved, and if construction and op-
eration of many of the nation’s com-
plex sources are found to be in
violation of the Act, there will be a
clear and pressing need fora
uniform rule on what the appropriate
remedy for a given violation would
Gere eate Geter sere ann
itt
Indez
Page
ee ae ee a
Table of Citations
CASES CITED:
Brady v. Southern Ry.Co., 320U.S. 476, 64
S.Ct. 232, 88 L.Ed. 239 (1943) .......
Brown v. Western Railway of Alabama,
338 U.S. 294, 70 S.Ct. 105, 94 L.Ed.
100 (1950) e . eo e e . e e . . e . . e . . . .
D.C. Federation of Civic Associations
v. Volpe, 459 F.2d1231(D.C.Cir.1971) ...
Gunther v. San Diego & Arizona & East-
ern Railway Co., 382 U.S. 257, 86
SCt. 368, 156 L.Ed. 26 WOGB .. ww ee
In re Sports Complex in the Hackensack
Meadowlands, 62 NJ. 248, 300 A.2d
36
29
29
26
29
337 (1973) . . . . e . . e . ° . . . . . . ie ll
Interstate Commerce Commission v.
SCRAP, 41 L.W. 4866 (Sup. Ct. 6/18/73) . .
Koppers Co. v. United States, 24 Ad. L.2d
(Pike & Fischer) 900 (Ct. Cl. 1968) ...
8
34
tv
Indez
Page
Natural Resources Defense Council, Inc.
v. Environmental Protection Agency,
475 F.2d 968 (D.C. Cir. 1973) ...... 13
New Jersey Sports and Exposition Au-
thority v. McCrane, 61 NJ. 1, 292
A.2d 545 (1972) soe % TF & Be MB, Be
Sierra Club v. Morton, 405 U.S. 727, 92
S.Ct. 1361, 31 L.Ed. 2d 636 (1972) .. 7,8
Sierra Club v. Ruckleshaus, 344 F.Supp.
252 (D.D.C. 1972) aff'd, US. ,
93 S.Ct. __, 31 L.Ed. 2d 636, 41 L.W.
4825 (June 11, 1973) ...... 18, 19, 30
Southern Pacific Co. v. Gileo, 351 U.S.
493, 76 S.Ct. 952, 100 L.Ed. 1357
(1956) a - . e J s e e e -_ 7 . o ee ee e e e e s 29
STATUTES CITED:
Clean Air Act, 42 U.S.C. Section 1857
et seq. oe7eeeeeeeeeee 3, 4, 7,8, 16, il,
eoe5seeeeeeee 20, 21, 23, 25, 26, 27
National Environmental Policy Act, 42
U.S.C. §4321 et seq. e e o a e e e e e e e Se 34
New Jersey Sports and Exposition Au-
thority Law, N.J.S.A. 5:10-1 et seq... 4, 7
Reyes rr ris me emrnicsownts gts Saar ow Pe
Ao an mw tA I 4 ae et
Indez
Page
36 Fed. Reg. 15486 (August 14, 1971) .. 21
36 Fed. Reg. 8186 (April 30, te) cass
38 Fed. Reg. 6279 (March 8, 1973) .. 11, 13,
e e e . e e . e e e a e . e e e . e e e Ets Bie 22
38 Fed. Reg. 9599 (April 18, of re |
38 Fed. Reg. 10317 (April 26, 1973) .... 14
38 Fed. Reg. 15834 (June 18, 1973) ... 14
38 Fed. Reg. 17782 (July 3, 1973) ... 6, 19
we fea. Map, 17700 sk bk eh mu - 1D
28 U.S.C. Section 1257(3) ........ see &
Sen, Rpt. No. 91-1196 on National Air
Quality Standards Act of 1970 ...... 22
OTHER AUTHORITIES CITED:
2 K. Davis, Administrative Law Treatise,
§§ 12.01 et Pe kee kh ee @ SRS
4 K. Davis, Administrative Law Treatise,
§§ 30.01 to 30.14 . e e . e . 7 . . s e e 31
In The
Supreme Court of the Hnited States
October Term, 1973
>
No. A— 1154
NEW JERSEY CITIZENS FOR CLEAN AIR,
INC., ET AL.,
Petitioners,
U8.
NEW JERSEY SPORTS AND EXPOSITION
AUTHORITY,
Respondent.
Petition for a Writ of Certiorari to the Supreme
Court of New Jersey
The petitioners New Jersey Citizens for Clean Air,
Inc., Save the Meadowlands Coalition, Citizens
Committee of Hudson County, Hudson County Citizens
for Clean Air, Hudson River Fisherman’s Association,
Weehawken Environmental Committee, D.E.E.R., Inc.,
Save the Palisades Association, John Rutherford
Chapter of Daughters of the American Revolution,
Citizens for Conservation, A.C.T., C.A.P.A.B.L.E.,
Raritan Valley Environmental Council, Garden Club of
Somerset Hills, Hoboken Environment Committee and
CAPCOM, respectfully pray that a writ of certiorari
issue to review the judgment and opinion of the
Supreme Court of New Jersey entered in this proceeding
on February 5, 1973.
2
The opinion of the New Jersey Supreme Court is
reported at 62 NJ. 248, 300 A.2d 337 (1973). The
findings and recommendations of the Hackensack
Meadowlands Development Commission and the New
Jersey Department of Environmental Protection are not
reported. Copies of the New Jersey Supreme Court’s
opinion (264a) and its denial of petitions for rehearing
(298a-299a), the relevant sections of the agencies
findings of fact and recommendations (244a) and the
decision of the Commissioner of the New Jersey
Department of Environmental Protection (262a) are set
forth in the Appendix at the pages indicated.
Jurisdiction
This suit was brought as an appeal to the New Jersey
Supreme Court by direct certification from state
administrative agency findings and recommendations
arising from environmental hearings ordered by that
Court to be held jointly by the Hackensack
Meadowlands Development Commission and the New
Jersey Department of Environmental Protection in New
Jersey Sports and Exposition Authority v. McCrane, 61
NJ. 1, 292 A.2d 545 (1972). The judgment of the New
Jersey Supreme Court was entered on February 5, 1973.
In re Sports Complex in the Hackensack Meadowlands,
62 N.J. 248, 300 A.2d 337 (1973). A timely petition
for rehearing was denied on March 6, 1973, and a re-
petition for rehearing was denied on May 2, 1973. In
view of the uncertainty of which denial begins the 90
* Page numbers suffixed by ‘‘a’’ refer to Appendix.
Jurisdiction
day period within which this petition for certiorari must
be filed, an application for a 60 day extension of time
to file was made to Justice William G. Brennan, Jr.,
Circuit Justice for the Third Judicial Circuit. This
application was granted, making the new due date for
this petition August 3,°1973. This petition was filed by
that date. This Court’s jurisdiction is invoked under 28
U.S.C. Section 1257(3).1
Questions Presented
1. Whether the construction of a complex source of
air pollution, such as proposed in the present case, is
illegal in a state whose implementation plan does not
provide for review and control of such complex sources
to insure that such sources do not cause violations of
federal ambient air quality standards as established in
the Federal Clean Air Act., 42 U.S.C, Section 1857 et
seq. and regulations promulgated thereunder?
2. Whether the construction of a complex source of
air pollution, such as proposed in the present case, is
illegal in a region in which the above federal ambient air
1 “Final judgments or decrees rendered by the highest court of a
State in which a decision could be had, may be reviewed by the
Supreme Court as follows:
eee
(3) By writ of certiorari, where the validity of a treaty or
statute of the United States is drawn in question or where the
validity of a State statute is drawn in question on the ground of
its being repugnant to the Constitution, treaties or laws of the
United States, or where any title, right, privilege or immunity is
specially set up or claimed under the Constitution, treaties or
statutes of or commission held or authority exercised under the
United States.”’
CPSP ane
4
Questions Presented
quality standards are not currently being met for any
automobile related air pollutant, and there is no valid
implementation plan preventing the further degradation
of current air quality levels?
3. Should this Court reverse a state supreme court
decision affirming state agency findings, when said
decision may jeopardize petitioners’ substantive and
procedural rights under the Federal Clean Air Act, 42
U.S.C. Section 1857 et seg. by allowing construction of
the proposed complex sports which may cause
violations of federal ambient air quality standards, and
said decision can be shown to be unsupported by either
the evidence presented or the factual and legal
propositions relied upon by the state court in making its
affirmance?
Statutory Provisions involved
Clean Air Act, an amended, 42 U.S.C. Section 1857 et
seq,
As the provisions involved are lengthy, they are set
out in the Appendix at la together with pertinent
regulations. The statute may be found at Volume 9 of
the United States Code, page 10178 (1970 ed.).
New Jersey Sports and Exposition Authority Law,
N.J.S.A. 5:10-1 et seq.
This statute is also set out in the Appendix at 73a.
SOHNE RAPE LECT SEE IONE ECORI TOT ADOBE BL LY EN ER PA RI TEA lea PRECIPI SD
5
Statement of the Case
Introduction
This suit concerns the construction of a massive
sports complex in the Hackensack Meadowlands in
Northeastern New Jersey. At this time, it is proposed
that the complex include a football stadium and a horse
race track. Future development of a “theme park,”
(such as Disneyland) is contemplated. There is to be a
parking facility for 25,000 cars and 400 buses for the
football stadium and race track; this has been
guaranteed in the lease between the defendant New
Jersey Sports and Exposition Authority and the New
York Giants, a professional football team, which is to be
the prime user of the football stadium. The stadium will
contain 75,000 seats. The Chairman of the Sports
Authority has stated it is hoped that other activities,
besides football, will keep these 75,000 seats filled on a
year round basis. See discussion of third reason for
granting the writ, infra.
The Meadowlands are a low lying, coastal wetlands
area not served by such mass transit facilities as trains or
subways. Thus, when any event takes place at the
complex that will even partially fill the 25,000 car
parking lot, thousands of cars will travel from the New
York City metropolitan area, resulting in hundreds of
thousands or perhaps millions of vehicular miles traveled
in the area surrounding the sports complex for each
event. At the stadium itself, up to 25,000 cars will have
to enter and leave one central point within the space of
a few hours. This entrance and exit will have to be
accomplished over what is currently a quite sparse road
network surrounding the site.
:
:
a
j
HELA
I eae
Ritter aw
6
Statement of the Case
The air quality in the area of the sports complex site
is currently among the worst in the nation with regard
to automobile related pollutants. The air quality
presently exceeds federal levels for carbon monoxide,
hydrocarbons, nitrogen oxides, oxidants and
particulates (Excerpts from Draft Impact Analysis,
300a-301a). According to the testimony of the Sports
Authority’s own expert, federal levels will still be
exceeded for all five pollutants in 1975 when the sports
complex, if approved, would begin operating (T. XXIV
F2-F4). It is so poor that the Administrator of the
United States Environmental Protection Agency has
imposed, pursuant to the requirements of the Federal
Clean Air Act, a transportation contro] plan to reduce
the vehicular miles traveled in this area 68% by 1977, a
plan which the Administrator himself deems to be
severe and perhaps unworkable. This is because there is
very little mass transit available in this area and the
area’s day to day existence revolves around the
automobile. See generally, 38 Fed. Reg. 17782 et seq.
(July 3, 1973) (140a).
The plan has been criticized from many quarters,
particularly by Richard J. Sullivan, Commissioner of the
New Jersey Department of Environmenta: Protection,
because of the severe hardship it would impose on
citizens living in this area. Commissioner Sullivan has
also according to recent newspaper reports, apparently
taken the position that the plan cannot legally be
imposed, and that even a 68% reduction in vehicular
miles traveled could not achieve the 1975 primary air
quality standards. See New York Times, June 23, 1973
and July 19, 1973 (311a-314a).
LANE RSI REL IOR WIEN HTM FIANNA ONPRRE AA REAR ENG REM PRN Me PRN ON RS ONT tI
MEG { re
SILI EEE OHS
AES REN
Statement of the Case
This background should be considered with the fact
Commissioner Sullivan, who nowsaysthat the federal
ambient air quality standards cannot be achieved in this
aréa, was the same state official who approved the
hearings being challenged here and made possible a .
facility that will draw ‘up to 25, 000 cars from perhaps
hundreds of miles away an undetermined number of
times per year.
The statute that created the New Jersey Sports and
Exposition Authority (hereinafter Sports Authority)
which will build and operate the sports complex, the
New Jersey Sports and Exposition Authority Law,
N.J.S.A. 5:10-1 et seq., set forth in the Appendix at
73a, was attacked by numerous groups in New Jersey
Sports & Exposition Authority v. McCrane, 61 NJ. 1,
292 A.2d 545 (1972) (hereinafter McCrane). Petitioners
were granted leave to appear in McCrane as amicus
curiae to represent interest of the petitioning
organizations in the air quality aspects of the case. 2The
. PLOT OUP INES HES CREASY Fa LIED D, POAENONES
RIVE OY RAE TET OPE RR LN PST IE LUO RE GV ES HEE EH LD NET BR TL ew OMT IS HES NEN IS
2 This grant of standing by the New Jersey Supreme Court to the
organizations and its members includes petitioners’ standing to
raise federal issues under Sierra Club v 405 US. 727,
(Cont'd)
bdo
SPOR IPA IIL LEER ITT RS
eet cet a oad
wren een CCE
8
Statement of the Case
constitutionality of the statute was upheld, but the
Court noted that Sections 5(x) and 23 of the statute
required that the Sports Authority “consult” with the
Hackensack Meadowlands Development Commission
and the New Jersey Department of Environmental
Protection (hereinafter Agencies) so that the sports
complex would not prevent the maintenance and
preservation “‘of the delicate environmental balance of
the Hackensack Meadowlands . . . ” McCrane, 61 N.J. at
32, 292 A.2d at 561. Accordingly, the Court ordered
environmental hearings to be held, from which a record
should be compiled so that review of those hearings
could be taken directly to the New Jersey Supreme
Court to determine the adequacy thereof. At these
hearings, petitioners raised the issue, inter alia, of the
applicability of the Federal Clean Air Act, as amended,
42 U.S.C. Section 1857 et seq. (hereinafter ““Act”) to
this undertaking. In ordering the hearings, the New
Jersey Supreme Court intended that they result only in
the selection of a site for the sports complex that would
be least environmentally damaging. However, the Court
later noted that consideration of the issues arising under
the Act had been proper.
(Cont'd)
determined in its opinion below that rights under the Act may
be protected in a state suit challenging the construction of
traffic generating facilities, and the vital purpose of the Act
would be frustrated if the right of citizens to sue on causes of
action unspecified in the Act were disallowed. Moreover, while
this specific action does not involve a federal official or agent,
the liberal standing requirements of Sierra Club v.
supra, as recently restated in Interstate Commerce Commission
v. SCRAP, 41 L.W. 4866 (Sup. Ct. 6/18/73), that plaintiffs or
their members properly plead that they have been injured in
fact, have been met in this case.
RA a (AN GRMN ABP LED ACA EY LR IG III A
9
Statement of the Case
“A considerable part of the hearing was
concerned with projections of the impact of the
complex on air quality from the broad point of
view of the public health... our remand was
sufficiently comprehensive to include the
broader issue and the hearing agencies rightly
concerned themselves with it.”
Opinion at 5, 300 A.2d at 340 (269a).
At the hearings it was established that operation of
the sports complex. would result in concentrations of
carbon monoxide well above the one-hour standard
of 35 parts per million (ppm) set by the Clean Air Act
as the level above which health may be endangered.
Thus one expert testified that using the authority’s own
computer model, 18,000 cars using the complex in 1975
would cause carbon monoxide concentrations of 76
ppm in the center of the proposed parking lot. (T. XX,
B-3, B-4). Another witness drew a sketch showing that
almost all areas of the parking lot would exceed 35 ppm
if 22,500 vehicles used the lot (Ex. A-16). In adddition,
the unrebutted testimony established that federal levels
for nitrogen dioxide would also be exceeded (T. XVI,
D-6).
The Authority’s own expert confirmed _ this
testimony. His computer predictions showed
concentrations of 115 ppm for 25,000 cars and 102
ppm for 18,330 cars (Ex. SA-34). In spite of this
evidence, the Agencies found that federal clean air
standards would not be violated. The following,
however, should be considered:
10
Statement ofthe Case
1. The Sports Authority itself indicated that federal
clean air standards for all five pollutants (three
automobile-related) measured by the New Jersey
Department of Environmental Protection (one of the
hearing agencies) in the general area of the sports
complex were already well above the annual average
standards allowed by the Act and regulations thereunder
(Excerpts of Draft Impact Analysis, 300a-302a). Thus,
even if the Agencies were correct in their findings that
one hour standards for carbon monoxide would not be
exceeded, they took the position that further
degradation of already unhealthy air was permissible.
2. The Sports Authority’s expert himself said that
primary standards could be violated if his suggested
traffic controls were not utilized. The controls have not
been made mandatory (T. XXV, G-14 to G-20;
213a-218a).
It would thus appear that in addition to the
disputed facts, the evidence put forth by the Sports
Authority itself and the findings of the Agencies
indicate that federal standards are currently being
violated, and as such, any additional pollution could
only exacerbate a presently unhealthful and unlawful
condition.
Petitioners also raised the point during the hearings
that the implementation plan (hereinafter ‘‘Plan’’)
required by the Act, 42 U.S.C. Section 1857c-5 et seq.
to be formulated by the State and approved by the
United States Environmental Protection Agency
(hereinafter “BE.P.A.”) did not take into consideration
the sports complex or the development of the
LEELA LOE LS LE IIE EEE LAER A Bl OP Sig NEN — -
11
Stat ement of the Case
Hackensack Meadowlands in general. The Act and
regulations thereunder require that such an
implementation plan must provide for the review by the
State of complex sources of auto-related air pollution
and the imposition on such sources of land use and
transportation controls necessary to insure the ability of .
the State to attain and maintain federal air quality
standards. 42 U.S.C. Section 1857c-5(a)(2)(B) and (D)
(16a); 40 C.F.R. Section 51.1(n); 38 Fed. Reg. 6279
(March 8, 1972) (117a); 38 Fed. Reg. 9599 (April 18,
(1973) (128a).
The Agencies’ findings and recommendations
were approved, with modification irrelevant to this
appeal, by the Commissioner of the New Jersey
Department of Environmental Protection on October
16, 1972. 'The findings and approval were appealed to
the New Jersey Supreme Court, which heard oral
argument on December 18, 1972.
The Court affirmed the Agencies’ findings and the
Commissioner’s approval thereof on February 5, 1973.
In_ re Sports Complex in Hackensack Meadowlands, 62
NJ. 248, 300 A.2d 337 (1973). As to the applicability
of the Act to the sports complex, the Court said
“Certainly the Sports Authority will be subject to the
Federal Clean Air Act” (Opinion at 7; 300 A.2d at 340;
271a). It approved the Agencies’ findings that the
federal air quality standards would not be violated in
1975. Id. It also recognized that the primary
3 A “new city” is contemplated in the Meadowlands with a
population of 185,000 and employment for 200,000 people (T.
XVI C-8).
4
i
%
ed
;
12
Statement of the Case
responsibility for assuming that these standards would
be met and maintained was on the State through its
Implementation Plan, and that “New Jersey has adopted
such a plan which has been approved by the Federal
Administrator” (Opinion at 8; 300 A.2d at 341; 271a).
Another major basis of the Court’s judgment was
that:
“The record indicates that the National
Emissions Standards Act (42 U.S.C.A. Section
1857 f-1 to f-8) mandates virtual elimination of
emissions of carbon monoxide in all automobiles
manufactured during and after model year
1975 .... In the development and operation of
the sports and exhibition complex the Authority
must conform to these (federal air quality)
standards.”
Opinion at 8; 300 A.2d at 341; 271a-272a).
The Court thus rested its judgment that the
construction and operation of the sports complex would
not be in violation of the Act on three bases:
1) That the citizens of the state were protected from
violations of the Act by an approved, valid state
implementation plan.
2) That the federal emission limits imposed on new
cars in 1975 would be met.
3) The Agencies’ findings that the air quality
standards would not be violated.
PCTS TR RAR IRN 1 VE MN AEP NL PEIN AIH NSIT RVLT SY PL PVE ag SPECIE
13
Statement of the Case
On February 15, 1973, petitioners submitted a
timely petition for rehearing indicating that the state’s
plan had never been approved in several respects,
notably in its control plan for nitrogen dioxide. In
addition, there was no plan for carbon monoxide and
photochemical oxidants since the state had received a
two year extension to 1977 to submit a plan as to these
pollutants. (Petition for Rehearing at 5; 277a).
Moreover, the petition went into some detail to show
that the approval for all major automobile related air
pollutants rested on two year extensions of the deadline
for meeting the standards. The petition then pointed
out that all plans with such extensions, including New
Jersey’s, were invalidated by the United States Court of
Appeals, District of Columbia Circuit, on January 31,
1973, in Natural Resources Defense Council, Inc., et al.
v. Environmental Protection Agency, 475 F.2d 968
(D.C. Cir. 1973)(hereinafter N.R.D.C.) (Petition for
Rehearing at 7; 279a). This was because the
Administrator of the E.P.A. had acted beyond his
statutory authority in granting these extensions. The
Court ordered that the states involved resubmit plans
which met the statute’s requirements. The petition for
rehearing also pointed out to the Court that according
to a number of highly respected scientific reports and to
statements of the auto makers themselves the 1975
automobiles would probably not meet the 1975
emissions standards. This petition was denied on March
6, 1973.
On March 8, 1973, the Administrator of the E.P.A.
published an announcement at 38 Fed. Reg.6279 (117a)
disapproving all state implementation plans to the
£21 ns REL it AGS OED
tt
rn el
14
Statement of the Case
extent that they did not provide for review of and legal
authority for the control of complex sources of air
pollution, which specifically include sports complexes.
Requirements for what state implementation plans must
provide for review of such sources were proposed at 38
Fed. Reg. 9599 (April 18, 1973) (128a) and made final
in an announcement at 38 Fed. Reg. 15834 (June 18,
1973), to be effective on June 18, 1973. The argument
was then pressed in a repetition for rehearing submitted
on the basis of this clarifying regulation that the sports
complex could not proceed without being subject to the
review and controls required under the Act and
regulations thereunder. This repetition was submitted
on March 19, 1973 and denied on May 2, 1973. At that
time, appellants were preparing a memorandum to the
Court on the effect of yet another development which
eroded the validity of its decision. The E.P.A. gave a one
year extension, until 1976, to the auto makers to
comply with the 1975 emission standards, see 38 Fed.
Reg. 10317 (April 26, 1973) which the Court had
assumed would be met in 1975 (Opinion at 8; 300 A.2d
at 341; 271a-272a). This memorandum was never
submitted because the Court’s denial of the second
petition for rehearing came before the memorandum
was filed.
Before proceeding to show that the federal
questions here presented were properly raised and
preserved in the state proceedings, the nature of these
proceedings should be understood. The hearings below
were ordered to be held by the New Jersey Supreme
Court because of a mandate in the state statute that the
Sports Authority “consult” with the Agencies to
15
Statement of the Case
determine the site within the Meadowlands that weuld
be the least environmentally damaging. When petitioner
suggested that the agencies should determine whether
there should be a sports complex at all, Special Counsel
for the Agencies, who presided over the hearings, stated
that he thought there would be a sports complex
somewhere in the Meadowlands, and stated, “The
question is today whether or not this particular site is
environmentally acceptable” (T. I, 85; 202a). The Court
itself noted that the decision to locate the sport
complex in the Meadowlands had been made by the
New Jersey legislature and the Court felt it could not
question the wisdom or policy of that decision (Opinion
at 56; 300 A.2d at 340; 266a).
While petitioners raised the issues the Act presented
in this context at the hearings, and the New Jersey
Supreme Court approved the Agencies’ consideration of
these issues, it seems clear that the intended function of
the agencies was one of fact finding only. While legal
issues were raised tangentially below, they could not be
properly decided except on the appeal to the state
supreme court. As will be seen, infra, while the Agencies
had a limited fact finding function only, their findings
were intertwined with questions of law.
The matter was further complicated by the fact that
the court specified no procedures by which legal issues,
federal or otherwise, were to be raised and presented to
that court, and there are no state statutes or rules of
court that provide procedural guidelines in this unique
context. Thus, the questions presented here were
formally presented to the New Jersey Supreme Court in
petitioners’ Brief, Supplemental Brief, and Petitions for
Rehearing. In view of this, petitioners have requested
16
Statement of the Case
the clerk of the court to certify its briefs along with the
record.
Following is a summary of the questions presented
and the manner in which they were raised and decided:
1. The question of the necessity of consideration of
the sports complex pursuant to a valid implementation
plan was raised repeatedly below in testimony at the
hearings. On cross examination of a Sports Authority
expert, a letter from the E.P.A. to Governor Cahill was
read to the witness indicating that the E.P.A. wanted
current development information for the Meadowlands
for purposes of review of the plan. The letter indicated
that of special importance were development plans for
the period prior to and immediatley following 1975 (T.
VIII. D-10; 202a-203a). The witness was responsible for
a “draft impact assessment,” that purported to show the
environmental impact of the complex in the area. The
question was in the context of whether this assessment.
considered how the sports complex would affect New
Jersey’s ability to implement its responsibilities under
the Act (T. VIII, D-14; 204a). An expert witness for
petitioners, an official of the E.P.A. office having
jurisdiction over the Hackensack Meadowlands area, said
that New Jersey’s plan did not include the sports
complex or general development of the Meadowlands.
Specifically, he said that the traffic effects of the
complex would be needed to determine whether New
Jersey’s Plan would be adequate to insure compliance
with the federal standards (T. XVIII, C-l to C-13;
204a-213a).
PG TS PERL RTP ELAN UI ” -_
. SE TROL GS NATE REN POI MELT i ee RARER AINE Te eK Ai ee Np oe nen Se MC LEMS wees
17
Statement of the Case
Petitoner’s Statement of Exceptions atid Objectons
to the Hearing Officer’s Report and Recommendations,
specifically recounted this testimony in objecting to the
agencies findings with regard to the Act (219a).
In Point III of petitioners’ main brief to the New ©
Jersey Supreme Court, contending that completion of
the sports complex would violate rights created under
the Act, the statute, its legislative history, and
regulations promulgated thereunder were examined in
considerable detail in arguing that the Act itself required
that the sports complex was subject to the Act. It was
further argued that the Act required that the sports
complex must be subject to the imposition of land use
and transportation controls that would prevent the
sports complex from causing pollution levels in excess
of federal standards (Pb at 85-96; 224a-236a). This
point was further treated in more detail in a
supplementary brief the Court allowed petitioners to
submit to clarify issues that had arisen at oral argument.
The Court treated the issue of the sports complex
compliance with requirements under the state’s plan and
the validity cf that plan with the statement that ‘““New
Jersey has adopted such a plan which has been approved
by the Federal Administrator” (Opinion at 8; 300 A.2d
341.
On March 8, 1973, the Administrator of the E.P.A.
published at 38 Fed. Reg. 6279 an announcement that
all state implementation plans, including New Jersey’s,
AIR TN aS
NPE TA RED RAG TERE AICS ST PMD EAL BPR PEMA NS UO PN RL OK S2e RT ERR MOTI YE le RE
18
Statement of the Case
“must be disapproved to the extent that they do
not contain provisions which will permit the
review, and provide the authority to prevent the
construction, modification, or operation of
complex sources at a location where emissions
associated with such source would result in
violation of a national standard or the States
control strategy” (120a).
It was argued in a petition for rehearing submitted on
March 19, 1973 that this had the effect of clarifying
prior law and supporting the contentions made earlier
by the petitioners that the Act itself mandated that the
sports complex could not legally proceed because the
state did not have a plan that would have insured that
the sports complex would not cause violations of the
federal standards. In other words, the requirements of
this regulation should have applied to some projects
begun before the promulgation of the regulation,
because it was an interpretation of the terms of the
statute, which were binding on projects begun
subsequent to the amendments to the Act of 1970,
which would include the sports complex. This petition
was “duly considered” by the Supreme Court and
denied on May 2, 1973.
2. The evidence presented by the Sports Authority
(Draft Impact Analysis, 300a) and the disapproved state
implementation plan itself(201a-let seq.), indicate that
several federal ambient air quality standards were
currently not being met. Petitioners argued that the
policy of nondegradationof existing qualities of air
established by Sierra Club v. Ruckleshaus, 344 F. Supp.
19
Statement of the Case
253 (D.D.C. 1972), affd__U.S. ___, 93 S.Ct..__, 31
L.Ed. 2d 636, 41 LW 4825 (June 11, 1973), applied to
prevent further degradation of air that was already in
violation of federal air quality standards. (See Pb 90 et
seq.; 229a et_seq.) That this was a proper interpretation
of that policy is supported by a transportation control |
plan that has been imposed on New Jersey by the
Administrator of the E.P.A. because of the State’s
continued failure to propose one of its own, announced
at 38 Fed. Reg. 17782 (July 3, 1973; 140a). That plan
proposes that no new parking facilities may be located
in the New Jersey portion of the New Jersey-New
York-Connecticut Interstate Air Quality Control Region
(in which the sports complex is to be located) without a
permit. No such permii may issue where this would
result in an increase in vehicular miles traveled “within
any area the air quality of which fails to meet applicable
federal air quality standards” 38 Fed. Reg. at 17790;
(181a). This is clearly applicable to the instant case, and
the Sports Authority has obtained no such permit.
{
4
2.
&
ASH
RARE AE PYRITE RAN It
Yar tae
When New Jersey’s Implementation Plan was
invalidated, petitioners requested in the Re-petition for
Rehearing, further consideration of this question in light
of the fact that there was no longer an approved plan;
Sierra Club v. Ruckelshaus decided that degradation of
current air quality could not be allowed in such a plan.
POLED LNT ID
3. The question of whether the operation of the
sports complex would cause violations of the federal air
quality standards was raised repeatedly by petitioners in
the hearings below. The opinion of the New Jersey
Supreme Court should suffice: “A considerable part of
2 NF TATE pal IY OVI Te IEE PRUNE 57S AIP PRY AEE RRR OPEN OE RP gE ROTO RO, Rear |
20
Statement of the Case
the hearing was concerned with projections of the
impact of the complex on air quality from the broad
point of view of the public health .... It is also argued
that projections of air pollution emanating from the
completed project indicate that standards established
- under the Federal Clean Air Act (42 U.S.C.A. Section
: 1857, et seq.) will be violated .. ..”” Opinion at 5-6; 300
; A.2d at 340; 269a). The court affirmed the Agencies’
5 findings which stated that the standards would not be
F violated, applying a standard of judicial review requiring
petitioners to show that the findings had been palpably
arbitrary (Opinion at 4; 300 A.2d at 337; 267a;
McCrane, 292 A.2d at 561). Point II of petitioners’
main brief argued in some detail that a proper scope of
judicial review and application thereof required a
reversal of the findings below. In addition to disputed
questions of technical facts, the Brief pointed out, inter
alia, that the Agencies knew, but did not consider that
standards were already being exceeded and that they did
not consider the impact of the complex on the
surrounding region (Pb. 64-84; 221a-223a).
hapakinn Bis
whee, ERE
REPRE BEG ES
The question of whether the New Jersey Supreme
Court should reconsider its decision in light of the fact
that its premise that the citizens of the State were
protected by a valid implementation plan had been
subsequently eliminated by a Federal Court was put to
the Supreme Court in a timely petition for rehearing on
February 15, 1973, which was denied on March 6,
1973.
ES ORS Re TAPS 2
S56 Fe
nO hos he GRA
iiddno <<
— siaiaiidiaiatia BON PENA O NEO Le LOE IE LG LY PONE LY LILIES OES IIEN. 8
21
Reasons for Granting the Writ
THE STATE COURT DECISION ALLOWING THE
CONSTRUCTION AND OPERATION OF THE
SPORTS COMPLEX CONFLICTS WITH THE
FEDERAL CLEAN AIR ACT AND IS IN VIOLATION
OF PETITIONERS’ RIGHTS THEREUNDER.
Under the Act, every state was required to have an
implementation plan which should have been approved
by the E.P.A. by May 30, 1972.4 Under N.R.D.C.,
supra, previously approved plans for several states were
invalidated and new ones were required to be submitted
and approved no later than April 15, 1973. Under the
E.P.A.’s announcement of March 8, 1973 at 38 Fed.
Reg. 6279 all state plans were disapproved to the extent
that they did not contain provisions for the review and
control of complex sources necessary to insure that they
would not “result in a violation of a national standard
or the State’s control strategy.” The States must
resubmit plans which do contain such provisions no
later than August 15, 1973. However, a valid plan may -
not be in force until as late as December 15, 1973. See
Fed. Reg. 9599, 9600 (April 18, 1973).
4. All state plans were to be submitted to the E.P.A. by January
30, 1972. 36 Fed. Reg. 15486 (August 14, 1971). The
Administrator was to approve or disapprove the plans within
four months of that date. 42 U.S.C, Section 1857c-5(a)(2). If
any plans were unsatisfactory, the Administrator was to take
actions to insure the delinquent states were covered by proper
plans as soon as possible. 42 U.S.C, Section 1857c-5(c).
SPA AY TINIE RI NE OSD SHARE RO a VALET AIRE ON SG ATE Rtn ad ee Maes Pod
AMEN OT i eC EE
EE ME OE SE
22
Reasons for Granting the Wnt
The Act created a substantive right to a minimum
standard of clean air guaranteed to every citizen. See Pb.
88; Sen. Rpt. No. 91-1196 on National Air Quality
Standards Act of 1970 at 4. It appears that the Act also
created a “procedural” right for every citizen that
complex sources of air pollution, the construction,
modification, or operation of which might violate the
citizen’s: substantive clean air rights, must be governed
by a plan which would prevent such a violation. This
right came into existence on May 30, 1972, on the date
the Act requires that all plans must be approved.
Petitioners contend that the sports complex is a
complex source,® the construction, modification, or
operation of which was commenced during a period in
which such sources should have been controlled by a
valid plan, and cannot proceed without violating these
procedural and substantive rights enjoyed by petitioners
and the public.
The state court failed to enforce these important
federal rights, even though they are designed to protect
public health, and approved this state project. Not only
is the decision erroneous, but unless this court speaks
5. The term “complex source” includes (but is not limited to)
1. Shopping centers;
2. Sports complexes;
3. Drive-in theatres;
4. Parking lots and garages;
5. Residential, commercial, industrial, or institutional
developments;
6. Amusement parks and recreation areas;
7. Highways;
8. Sewer, water, power, and gas lines.
38 Fed. Reg. 6279, 80 (March 8, 1973).
OL SPS PE RSS SRE ELE PME TES PPI PPR LOE AN WS Lh
23
Reasons for Granting the Writ
out, and affirms the very basic principle that federal law
is to be obeyed, it is likely that states will ignore federal
law (perhaps on authority of this case, if unreversed) in
favor of local projects.
In this regard it should be noted that there are two —
actions presently pending which could have a substantial
effect on this case and petitioners’ rights thereunder. On
July 26, 1973, a complaint was filed in the United States
District Court for the District of New Jersey in which
three individuals, Marianne Wuillamey, Barbara Eisler
and James Drago are plaintiffs and David A. Werblin,
director of the Sports Authority, and Richard J.
Sullivan, commissioner of the New Jersey Department
of Environmental Protection are defendants. This suit
seeks to enjoin construction of the Sports Complex on
the grounds that there is an _ unconstitutional
inconsistency between the Federal Clean Air Act and
the New Jersey Sports and Exposition Authority Act. In
addition, the issue of the failure of the Sports Authority
to obtain a permit is raised. A copy of the Complaint is
set forth in the Appendix at 319a.
Also on July 26, 1973, a letter was sent on behalf of
some of the petitioners herein to the Acting
Administrator of the E.P.A. demanding that the agency
take action to halt the sports complex for violation of
the federally imposed traffic control plan requiring a
reduction of vehicular trip miles in the northern New
Jersey area. This letter (also set forth in the Appendix at
315a) is the notice required by Section 304 of the Clean
Air Act, 42 U.S.C. Section 1857h-2(h), 40 C.F.R.
24
Reasons for Granting the Wnt
Section 54.1 et.seq., preparatory to a citizen suit against
the administrator.
It is submitted that both of these actions can, if
adversely determined, provide additional and reinforcing
reasons why this court should grant this petition, and it
is therefore respectfully requested that decision on this
petition be withheld until determination of the pending
actions.
On the other hand, a favorable decision on these
cases could make a ruling on this petition unnecessary.
BECAUSE OF THE FREQUENCY WITH WHICH
FACTUAL FINDINGS WILL BE MADE BY STATE
AGENCIES UNDER THE CLEAN AIR ACT, THIS
COURT SHOULD DETERMINE A _ PROPER
STANDARD OF JUDICIAL REVIEW.
As noted, supra, the Act and regulations thereunder
provide that if any complex source is to be located in an
area where it might cause violations of air quality
standards or impair the state’s control strategies, the
state’s implementation plan must provide for review of
such complex sources to insure that this does not occur.
This review will be carried out by state officials or
agencies; the E.P.A. is involved only to the extent of
approving the Plan’s provisions for the review. Thus,
environmental hearings of the general type held below
Sete Ae — |
25
Reasons for Granting the Wnt
will "= required to be carried out in the future in every
state.
As such, there will be frequent and recurrent
conflicts between the economic interests of promoters
of the complex sources on one hand and :the
interests of the public in not having their health and
welfare endangered by violations of clean air standards
on the other. 7 Given the kinds of projects that may be
involved in such hearings, the state and their agencies
will often be under intense political and economic
pressure to conduct pro forma reviews and impose
minimal land use and transportation controls on these
projects with consequent peril to the rights of tae
public. 8 The victims of this pressure will be the general
;
|
f
=
f
5
if
6. Petitioners stress that this statement does not imply in any way
that the hearings below were adequate to satisfy the procedural
requirements of the Act. These were highly unstructured
proceedings which were not approved for adequacy by the
E.P.A. as required by the Act. Petitioners argued below that
these hearings, although extensive, were not adequate by any
standard for any purpose.
CTE
en ee
22 AA
4
7. The Administrator has promulgated national primary and ;
secondary ambient air quality standards. The primary standard 3
is a point beyond which air pollutants may not be concentrated
without impairing the public health; the secondary standard
protects the public welfare. 42 U.S.C, Section 1857c-4(b); 36
Fed. Reg. 8186 (April 30, 1971).
. 8. The present case could be considered a good example of this &
danger. The bill creating the Sports Authority was presented to §
and passed by the New Jersey legislature and signed by the :
governor in one day. The Supreme Court of New Jersey had to
(Cont'd)
-
:
EEN AR SS IO LORE, BPI ETA STEERS ELLIE EE HE RID! ENTE LOY 8 ITT TOG NT ROR
26
Reasons for Granting the Writ
public who will thereby lose their federal rights to
healthy and nondestructive air. The national importance
and implications of these conflicts are clear.
Even though the reviews mandated by the Act are to
protect federal rights that will be substantially if not
completely identical throughout the United States, it
appears that the Act does not specifically provide a
uniform standard of judicial review and does not
authorize the Administrator to establish one. See Act,
Section 110, 42 U.S.C. Section 1857c-5 (15a). The Act
provides specifically for citizen suits in the federal
district courts in given situations that do not appear to
include challenges to reviews made by state agencies.
Act, Section 304, 42 U.S.C.A. Section 1857h-2.
However, that section also provides that
“Nothing in this section shall restrict any right
which any person (or class of persons) may have
under any statute or common law to seek
enforcement of any emission standard or
limitation or to seek any other relief (including
(Cont’d)
order the Agencies to conduct hearings. Even then, despite the
fact that the Court had expressly provided for direct review by
it of the Agencies’ findings, McCrane, 62 N.J, 1 at 33, 292 A.2d
at 561 (1972), the Sports Authority proceeded full tilt an
broke ground over two weeks before the oral argument. The
day before oral argument, the Newark Star Ledger carried a
front page article describing progress on the extensive
development planned for the sports complex area. The Court
indicated considerable displeasure with these developments at
oral argument (305a-310a).
- a ee Rh. ee ee as
27
Reasons for Granting the Writ
relief against the Administrator of a State
Agency).”
42 U.S.C.A. Section 1857h-2(e) (64a).
This section may be construed to indicate that most or
all judicial review of the state agency reviews of
complex sources will have to be in the state courts. As
matters stand at this point, then, without determination
by this court, proceedings to protect uniform federal
statutory rights will be subjected to judicial review
under perhaps fifty or more different standards.
‘
>
ys
a
*
x
&
m
4
4
The standard of judicial review with which
petitioners would have to contend to challenge the
Agencies’ findings in this case was that such findings be
“palpably arbitrary.” McCrane, 61 N.J. 1, 33, 292 A.2d
545, 561 (1972). While not specifically mentioning this
standard, Justice Hall, concurring in part and dissenting
in part, in the opinion ordering the hearings, said:
“I agree with the majority as to the necessity
for this precedent agency hearing and
determination. What disturbs me is the tone of
the opinion in speaking of it. I gain the
impression therefrom that while the agencies
must go through the motions, the proceeding
can be a perfunctory, cut and dried one, witha
foreordained result, with which no court would
disagree.” 9
9. Justice Hall followed this immediately with an observation that
is highly pertinent to the question of how closely hearing of this
(Cont'd)
BEAR ARC N EMS LAINGOGG DPA ML EP LEC IOS AR DARREL (ac eOD NTE RON he ROHL MILD SLIMY ae ae ET SSI PAPA RI GR
ie ae
See ie RS
Bah Cea
PIOUS DEM
28
Reasons for Granting the Wnt
61 N.J. 1, 65, 292 A.2d 545, 578 (1972).
In formulating a minimum standard of effective
judicial review and, if need be, reviewing the factual
basis of agency findings below, this Court would be well
within the precedent of analogous measures it has taken
in the past.
(Cont’d)
sort should be scrutinized.
“Perhaps my alarm is accentuated by the majority’s
quotation from legislative committee testimony in
support of the act, and especially that of the Director of
the Department of Environmental Protection -- the state
official having the duty to see to the protection of the
environment -- stating as one reason for approval of the
Authority act that the sports complex ‘would help to
_ give our State a little identity of its own.’ This to me is
not in keeping with the obligation of his office.”
It is to be particularly noted that the Department of
Environmental Protection, which this offical directed, was one
of the hearing agencies below and he approved the Agencies’
findings. This observation by a member of the reviewing court
itself, coupled with the fact that that official is generally
recognized as a vigilant protector of New Jersey’s environment,
is pursuasive evidence of the need to apply a liberal standard of
judicial review when findings by the agency might run afoul of
strong political and economic pressures to complete a project.
In this regard, it should be considered that administrative
agency decisions that are quasi- legislative and quasi-judicial are
invalid if based in whole or in part by political pressures. D.C,
f Civic Associations v. Volpe, 459 F.2d 1231 (D.C.
Cir. 1971), citing 2 K. Davis, Administrative Law, Sections
12.01 et seq.
we oe x 9 PRS FREELY ET PTS LIE SEINE CELL LLNS IB OA INE LRAR, PIE BSI Ma TRENT ABO NE EMITS
29
Reasons for Granting the Writ
In Brady v. Southern Ry. Co., 320 U.S. 476, 64
S.Ct. 232, 88 L.Ed. 239 (1943) the Court considered
the Federal Employees’ Liability Act, which created
statutory federal rights in a broad class of employees to
sue their employers iy state courts. Because different
judicial procedures in different states would lead to
differing enjoyment of a federal right, the Court
established a standard of evidence, which, if attained,
would compel the submission of the case to the jury. A
correct and uniform application of the FELA was alsc
deemed necessary to protect federal rights thereunder
and thus justified a review of the facts therein by the
court in Brown v. Western Railway of Alabama, 338
U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100 (1950) and
Southern Pacific Co. v. Gileo, 351 U.S. 493, 76 S.Ct.
952, 100 L.Ed. 1357 (1956).
Under these particular circumstances, a court’s
ability to review facts made by state administrative
agencies rather than courts to insure that valuable
federal rights were being accorded an adequate level of
judicial review would be appropriate. The theory of
judicial deference to findings of fact by administrative
agencies, as required by statutory mandate and sound
judicial practice, rests on the assumption of experience
and expertise in those agencies in determining questions
of specialized facts which courts do not have. Gunther
v. San Diego and Arizona Eastern Railway Co., 382 US.
257, 86 S.Ct. 368, 15 L.Ed. 2d 308 (1965). As noted,
supra, it is unclear at this point what state agencies or
officials will conduct reviews of complex sources. It is
only clear there will be many of them in many
TC AE ONG De DOM RBA SEI TO BNR nr ET AIA?
Ley RNS eee
30
Reasons for Granting the Wnt
jurisdictions. It is, therefore, quite uncertain what their
level of expertise will be. Given the importance of the
rights involved and the uncertainty of the level of
protection they will receive, this court should consider
means of providing adequate protection for them
though relatively liberal judicial review of factual
findings.
WITH REFERENCE TO THE INSTANT CASE, A
REVIEW OF THE AGENCIES’ FACTUAL FINDINGS
IS APPROPRIATE BECAUSE: a) THE AGENCIES DID
NOT CONSIDER CERTAIN LEGAL QUESTIONS
THAT AFFECTED THE VALIDITY OF THEIR
FINDINGS; b) THE FINDINGS WERE NOT BASED
ON SUBSTANTIAL EVIDENCE; AND c) THE
INTENDED USE OF THE PROJECT IS GREATER
THAN PRESENTED TO THE AGENCIES.
a. The validity of the Agencies’ factual findings were
based on legal questions not considered.
The Agencies determined that the sports complex
would not cause violations of the Act. However, they
were well aware that all automobile-related air quality
standards were currently being violated, and would be
through 1990 (Excerpts of Draft Impact Analysis,
300a-303a). Petitioners raised the point that new
sources of pollution could not be introduced that would
exacerbate existing violations (Pb 90 et_seqg.; 229a et
seq.). This point is supported by Sierra Club v.
31
Reasons for Granting the Writ
Rucklehaus, 344 F’, Supp. 253 (D.D.C. 1972), aff'd ___
US. ,93 S.Ct.___ 37 L.Ed, 2d 140 (1973) which
established a policy of non-degradation of existing
qualities of air. This point was argued in the New Jersey
Supreme Court. Thus, the Agencies’ findings that the Act
would not be violated «was a finding of law as well as
fact. Also the Sports Authority’s own expert witness,
under redirect examination by counsel for the
Authority, said that it was possible that the one-hour
primary standard would be exceeded more than once
per year, in violation of law, unless certain traffic
control measures he advocated were taken (T. XXV,
G-14 et seq.; 213a-218a). These were not required by
the Agencies as a condition of approval: the hearing
officers merely required “‘study”. The policy of the Act
is that transportation controls which can _ be
implemented to prevent violations must be within the
state’s legal authority to impose to insure that such
violations will not take place. The Agencies thus made
the factual-legal findings that mere “study” was
adequate to insure maintenance of air quality standards.
Of course, such legal questions and mixed questions of
law and fact do not enjoy the immunity from judicial
review that do findings of fact supported by substantial
evidence. See generally, 4 K. Davis, Administrative Law
Treatise, Sections 30.01 to 30.14.
b. The Agencies’ findings were not based on
substantial evidence.
The Agencies accepted the Sports Authority’s
experts’ computations of what air pollution levels at the
32
Reasons for Granting the Writ
sports complex would be in 1975. However, basic
fundamental data from which these computations were
made, projected emission levels of smog-controlled cars
as they aged, were taken from another individual who
got them from an E.P.A. employee in North Carolina on
the phone, who in turn got them from incomplete test
results from a study being run by a private firm in
California (T. XXII, C-2 to C-10). Without even
exploring the issues of whether admission of such
evidence denied a fair hearing to petitioners (which
issues were argued in the state supreme court),
petitioners challenged the reliability of such evidence.
At the very least such unsubstantiated evidence was the
only basis for the prediction of pollution concentrations
made by the authority’s expert witness. Certainly, such
evidence is not the sort that should determine such vital
issues as are presented here. Even assuming such shaky
basic data to be correct, petitioners established that the
Sports Authority’s expert’s calculations were incorrect
on an independent ground, and he made recalculations
on the witness stand, on a sheet of paper entered in
evidence that established petitioners’ contention that air
quality standards would be violated.
c. The Agencies were not presented data on the full
use of the facility.
The evidence presented by the Sports Authority to
the Agencies was based only on use of the football
stadium for the ten home games expected to be played
there each autumn. However, newspaper reports of
remarks made by the Chairman of the Sports Authority,
<0 hay SO Oe etree C8 e ced
33
Reasons for Granting the Writ
David Werblin, indicate that it is the intention of the
Sports Authority to utilize the stadium to the greatest
extent possible. “With good management we will have
this stadium filled every day of the year.” Home News
(New Brunswick, N.J.), May 31, 1973, pg. 6.
“Unfortunately, there has been an impression
that we’re building a facility for nine home
football games. If I were a betting man, which I
am, I’d bet that by 1980 there will be more
soccer games than professional football games in
the stadium.
“We’re considering bringing in college
football teams like Notre Dame for a game or
two and Alabama for a game or two. The
sightlines will be perfect for tennis. There are
track and field and bowling, and we’ll consider
putting a bubble over part of the stadium and
moving in parallel grandstands for boxing. There
will be sport shows, dog shows . . .
* * *
“There are facilities that have 450 uses a year,
notably in Anaheim, Calif., and I hope we’ll
have something going on here almost every dzy.’”’
New York Times, June 1, 1973, p. 29.
It thus seems apparent that the Sports Authority
34
Reasons for Granting the Writ
was quite hesitant to present all the evidence to which it
was privy through its Chairman. It seems clearly
apparent that the agency findings below were not
consistent with the overwhelming weight of the
evidence which, in good faith, should have been
presented, and this Court certainly has power not only
to invalidate the hearings for their insufficency, but to
make a contrary finding of fact. See Koppers, Co. v.
United States, 24 Ad. L. 2d (Pike & Fisher), 900 (Ct.
Cl. 1968).
IV.
WHEN THE ANSWERS TO THE SUBSTANTIVE
QUESTIONS PRESENTED HERE ARE RESOLVED,
AND IF CONSTRUCTION AND OPERATION OF
MANY OF THE NATION’S COMPLEX SOURCES
ARE FOUND TO BE IN VIOLATION OF THE ACT,
THERE WILL BE A CLEAR AND PRESSING NEED
FOR A UNIFORM RULE ON WHAT THE
APPROPRIATE REMEDY FOR A_ GIVEN
VIOLATION WOULD BE.
That an injunction against construction or operation
issue until there were adequate assurances to the
enjoining court that no violations would occur would
seem the logical remedy. This has been found to be an
appropriate measure involving many large scale projects
under the National Environmental Policy Act, 42
U.S.C.A. Section 4321 et seq.
However, if it should be determined that injunctions
are not an appropriate remedy to apply as a matter of
35
Reasons for Granting the Writ
course, guidelines could be established for making as a
condition precedent to the completion of projects a
requirment that plans be altered to include the
transportation controls envisioned by the Act
incorporated into the on going project.
Of course, this petition is not the place to discuss in
detail the mechanics of proper remedies. However, this
is an important question that could be handled in
further detail in a subsequent brief should the prayer for
certiorari be granted.
36
For these reasons, a writ of certiorari should issue to
review the judgment and opinion of the Supreme Court
of New Jersey.
Respectfuiiy ‘bmitted,
MEZEY & MEZEY
__s/ Frederick C. Mezey
FREDERICK C. MEZEY
Attorney for Petitioners
Mey tat Merit
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.