Petition for Writ of Certiorari — New Jersey Citizens for Clean Air, Inc. v. New Jersey Sports & Exposition Authority

Supreme Court brief1973

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— 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.

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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

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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

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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.

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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).

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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)

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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).

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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

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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

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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.

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