Petition for Writ of Certiorari — Committee for Environmentally Sound Development, Inc. v. City of New York

No. 99-

IN THE

Supreme Court of the United States

COMMITTEE FOR ENVIRONMENTALLY SOUND

DEVELOPMENT, INC., NORTH RIVER COMMUNITY

ENVIRONMENTAL REVIEW BOARD, WEST VILLAGE

COMMITTEE, COALITION FOR A LIVABLE WEST SIDE,

GEORGIO CAVAGLIERI, JOHN L. BUNCH, JR., PHYLLIS

GUNTHER, HARRIET WEISSBERGER and OLIVE FREUD,

Petitioners,

v.

THE CITY OF NEW YORK, RUDOLPH GIULIANI, as Mayor

of The City of New York, THE METROPOLITAN

TRANSPORTATION AGENCY and TRIBOROUGH BRIDGE

AND TUNNEL AUTHORITY,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UnittTep STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

CraiG P. MuRPHY

Counsel of Record

JAMES J. PERICONI

JOHN D. HOLDEN

WINDELS Marx LANE

& MITTENDORF, LLP

Attorneys for Petitioners

156 West 56" Street

New York, New York 10019

(212) 237-1000

159557 @ Counsel Press LLC

~ (800) 274-3321 + (800) 359-6859

ated deeticenta cam eee

i

QUESTIONS PRESENTED

|. Whether the lower court erred in denying plaintiffs

the opportunity to file a proposed second amended complaint,

by prejudging the substantive merits of the amended claims,

rather than their facial adequacy, in violation of the relaxed

pleading standard of Conley v. Gibson and Rule 12, thereby

subverting the fundamental concept of notice pleading.

2. Whether the lower court erred in failing to provide

proper de novo review of the facial adequacy of the proposed

amended claims, by stubbornly failing to recognize

intervening changes in the underlying facts and law, despite

repeated notice of these changes.

3. Whether the lower court improperly limited the scope

of citizen suits, by erroneously affirming the district court’s

finding that Section 4.4 of New York’s 1992 Clean Air Act

plan for carbon monoxide does not contain a “specific

Strategy” as required, when an intervening change of fact

and law made the Fourth Claim Clearly adequate.

ul

STATEMENT PURSUANT TO RULE 29.6

Petitioner, Committee for Environmentally Sound

Development, Inc., has no parent company and does not issue

stock.

ill

TABLE OF CONTENTS

Page

SIN MINN oP ee I

Statement Pursuant To Rule 29.6 ............... il

ce A SOE SET CO il

Fame Ot Cited Authorities .................... iv

We re I 5 Re ke sk kk Vil

I a a rp oes. l

mumcmnomt Gt Jurisdiction ......<. .. 55. k cnc anne l

Statutory Provisions Involved ................. l

mememmmemt OOF THE Case ow wk os icc ccc canes 2

Introduction And Summary Of Argument ........ 6

Reasons For Granting The Writ ................ 7

I. The Decision Of The Court Of Appeals Is

In Gross Conflict With Relevant Decisions

Of This Court Mandating Relaxed Pleading

Standards, Liberally Granted Amendments

To Complaints, And De Novo Review By

Appeals Courts Of The Adequacy Of

Complaints. (Questions 1 And 2)......... 7

Il. The Decision Of The Court Of Appeals

Conflicts With The Second Circuit’s

Requirements For Citizen Suits. (Question 3)

OSS + SRE Ae eerie te EE Sov D 13

I ly iva ooo os 5 aS ols w < 4K Rae 15

iv

TABLE OF CITED AUTHORITIES

Page

- Cases:

Andrus v. Charlestone Stone Products Co., 436 U.S. |

et ) en emP ere re rir Dime rier resin are 1]

Coalition Against Columbus Ctr. v. City of New

York, 967 F.2d 164 (26 Cw. 1992) 00. cic csee By TA

Conley v. Gibson, 355 U.S. 41 (1957) ........06: i, 7, 9 i

Foman v. Davis, 371 U.S. 178 (1962) ........... 8

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

WR os eee ak a 10

Gillespie v. United States Steel Corp., 379 U.S. 148

CS ee da hk ORR ae ee ea 8

Landgraf v. USI Film Products, et al., 511 U.S. 244

Lie | BeOS Oe Perry ary Wine wane 11

Natural Resources Defense Council, Inc. vy. Train,

166 U.S. App. D.C. 312, 5120 F.2d 692 (D.C. Cir.

eS hy Ce Irn oy my pe re 10 :

Patterson v. Alabama, 294 U.S. 600 ............ 12 /

Scheuer v. Rhodes, 416 U.S. 232 (1974) ......... 9,10 {

State Tax Commission, et al. v. Van Cott, 306 U.S.

FEE CERNE Sera RON ew aon eas 12

| |

Cited Authorities

Svkes v. James, 13 F.3d 515 (2d Cir. 1993) ...... 5, 10

United States v. Alabama, 362 U.S. 602 (1960) ... 1]

United States v. New York, 82 FRD 2 (N.D.N.Y.

POSE heh K SS boyd Re ASO eee 8

Vandenmerk v. Ownes-Illinois Glass Co., 311 U.S.

POPAATOAD Savi ie cou Re epee eee ee 12

Wilder v. Thomas, 854 F.2d 605 (2d Cir. 1988), cert.

denied, 489 U.S. 1053 (1989) ....... 2, 3, 10, 13, 14

Statutes:

wee. 8 TAI. oo sis kv i rea |

42 U.5-0.-§ § 7401 Of te. 65 ooo cack, ans ae 1,2

Oe Ailes TOU ios 5s oe 2

me Se BS POE 24a os ads oo es hay O8

SE USA § PAS os otic eee 13

Me Ts BA. §& PRO) one ieee 13,14

vi

Cited Authorities

Page

Rules:

Federal Rule of Appellate Procedure 28(j) ....... 4

Federal Rule of Civil Procedure Rule 12 ......... i, 7

Federal Rule of Civil Procedure 12(b)(6) ...... ee

Federal Rule of Civil Procedure 15 ............. 8

Federal Rule of Civil Procedure 15(a) ........... By

Other Authorities:

1992 New York State Carbon Monoxide State

Implementation Plan ......... i, 3 ae a So 2

1992 New York State Carbon Monoxide State

Implementation Plan, Section 4.0(2) .......... 3

1992 New York State Carbon Monoxide State

Implementation Plan, Section 4.4 ......... i, 3, 4, 11

1999 New York State Implementation Plan:

Carbon Monoxide Redesignation Request and

Maintenance Plan ............ 4,5, 6, 10, 11, 12, 14

N.Y. Coty CRE © IIS 6 ok chi ecw 3

Vil

TABLE OF APPENDICES

Appendix A — Summary Order Of The United States

Court Of Appeals For The Second Circuit Dated

And Filed December 22, 1999 ................

Appendix B — Order Of The United States District

Court For The Southern District Of New York

San HNN TG BO Bik sv icshks vbew ee tks

Appendix C — Order Of The United States Court

Of Appeals For The Second Circuit Denying

Petition For Rehearing Dated And Filed February

Wu MON Ces xhtie co ead CAA ESOS as

Appendix D — Statutory Provisions And Rules

a EP POTEET EP Oe ye ewe ee ER

Page

i ab 8 . " LE TENE A AEC YOR ALOIS ROTA HOR RP BNE erat eR ang am

UNSER rece ener Pe CNS a tila sis ,

l

Petitioners respectfully seek a writ of certiorari to review

the judgment of the Second Circuit Court of Appeals in this

case.

OPINIONS BELOW

The opinion of the Second Circuit is unpublished

(Committee for Environmentally Sound Development, Inc..,

et al. v. The City of New York, et al., No. 99-7403 (2d Cir.

Dec. 21, 1999)), but can be found at Appendix A

(“App. A”). The district court opinion is also unpublished

(Committee for Environmentally Sound Development, Inc.,

et al. v. The City of New York, et al., No. 98 Civ. 272

(S.D.N.Y. Dec. 1, 1998)), but can be found at Appendix B

(“App. B”).

STATEMENT OF JURISDICTION

The judgment of the Second Circuit Court of Appeals

was entered on December 21, 1999. The Court of Appeals

entered an order denying a timely petition for panel rehearing

on February 11, 2000 (“App. C”).

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The primary statutes involved in this case are the federal

Clean Air Act (“CAA”), 42 U.S.C. §§ 7401 et seq.,

specifically § 7604, the CAA citizen suit provision; Federal

Rules of Civil Procedure 12(b)(6) and 15(a); and the 1992

New York State Carbon Monoxide State Implementation

Pian (“1992 CO SIP”). The relevant portions of these

provisions can be found at App. D.

2

STATEMENT OF THE CASE

This case concerns the proposed redevelopment of the

area currently occupied by the New York Coliseum, located

on the “superblock” bounded-by West 58th Street, West 60th

Street, Ninth Avenue and Columbus Circle in New York

City. Plaintiffs are individuals, and community organizations

representing individuals, who allege that they will be —

adversely impacted by alleged increases in carbon monoxide

(“CO”) levels caused by, or in the vicinity of, this

redevelopment project, which includes two 750 foot towers

rising from a base of 2.5 million square feet; a 650,000 square

foot commercial condominium; world headquarters of Time

Warner; 325,000 square feet of retail space; 325

condominium units; a 425 room hotel, and other amenities.

The Clean Air Act (“CAA”), 42 U.S.C. § § 7401 et seq.,

requires the United States Environmental Protection Agency

(“EPA”’) to promulgate national ambient air quality standards

(“NAAQS”) for various pollutants. Each State then

determines how to achieve and maintain these standards by

devising a State Implementation Plan (“SIP”). See 42 U.S.C.

§ 7410. The citizen suit provision of the CAA creates a

private right of action to enforce the Act’s provisions.

A citizen may bring a suit to enforce, inter alia, a specific

provision of an applicable SIP. See 42 U.S.C. § 7604;

see also Wilder v. Thomas, 854 F.2d 605, 613 (2d Cir. 1988),

cert. denied, 489 U.S. 1053 (1989). New York State’s current

CO SIP was promulgated in 1992 and replaced a SIP

promulgated in 1984. The 1992 SIP specified, at that time,

the use of environmental impact statements (“EISs’’) to

evaluate projects that may significantly impact air quality,

see Coalition Against Columbus Ctr. v. City of New York,

967 F.2d 764, 767 (2d Cir. 1992); and provided fora broader

3

procedure for-evaluating potential CO exceedances, or “hot

spots,” to be “triggered by a request from New York State

for redesignation of New York City” as having reached

attainment of the CO standard. App. B at 12a-1 4a.

Petitioners filed their complaint in January 1998 alleging

violations of the CAA and a New York City land use

provision, N.Y. City Charter § 197-c, based upon alleged

exceedances of the CO NAAQS (“CO standard”) in the

vicinity of the site that would be caused or exacerbated by

vehicular traffic to and from this huge redevelopment project.

An amended complaint followed in February 1998. In an

unpublished opinion and order, the district court concluded

pursuant to Fed. R. Civ. P. 12(b)(6) that plaintiffs had failed

to state a federal claim upon which relief could be granted,

and therefore declined to exercise supplemental jurisdiction

over the state law claims. The court permitted petitioners to

submit a proposed amended complaint that “should identify,

separately, each specific strategy or commitment in New

York’s SIP alleged to be violated and describe,” with “some

particularity,” how the City’s compliance with the provision

was deficient. Thereafter, the Court would decide whether

leave to amend should be granted.

In December 1998, petitioners filed a proposed amended

complaint identifying defendants’ violations of sections

4.0(2) and 4.4 of the 1992 SIP. As to the latter, Section 4.4

of the 1992 SIP declares in relevant part that:

The State and City commit to develop a broader

alternative procedure to identify potential areas

at risk of exceedance of the CO standard, taking

into account a wider database, consistent with

all relevant methodologies, including: modeling,

4

data collection and growth projection. This new

procedure will become part of the CO

Maintenance Plan which must be submitted at the

time that the State requests redesignation of the

nonattainment area as an area which has &ttained

the NAAQS for CO.

App. A at 5a (emphases added).

In an unpublished opinion and order dated March 9,

1999, App. B, the district court denied plaintiffs leave to

amend their complaint, concluding that the proposed

amendments did not state a claim upon which relief could

be granted. As for § 4.4, the court held, inter alia, that the

City’s obligation under the Section to develop “a broader

alternative procedure to identify potential areas at risk of

exceedance of the CO standard” is “a future one, which is

triggered by a request from New York State for redesignation

of New York City” as in attainment for CO. Petitioners could

not and did not allege that the “triggering” had even occurred.

App. B at 14a. The court accordingly denied petitioners’

motion to amend their complaint and dismissed the case.

After all briefing in the Second Circuit was

complete, counsel for non-City defendants brought to the

Second Circuit’s attention the filing by the State of “New

York State Implementation Plan: Carbon Monoxide

Redesignation Request and Maintenance Plan for the

New York Metropolitan Area,” dated August, 1999

(“CO Redesignation Request”), by letter dated September

29, 1999, filed pursuant to Fed. Rule of Appellate Proc. 28(j),

attaching thereto a copy of the CO Redesignation Request.

ee re es Fe SE ails MERE Rn ne othe

5

At oral argument on the appeal, petitioners reminded

the court about the State’s recent, post-briefing filing of the

CO Redesignation Request. Petitioners argued that the

Redesignation Request “triggered” the broader procedure for

evaluation of potential CO hot spots upon study of traffic

data collection and growth projections. Thus, the City’s blind

acceptance of the project proponent’s EIS, lacking such

information, was no longer legally sufficient because the

“broader alternative procedure” of identification of

“potential areas at risk of exceedance of the CO standard”

was in effect. Thus, the district court’s then correct finding

that such a broader procedure was not then in effect, because

it could only be “triggered by a request from New York State

for redesignation of New York City as a ‘nonattainment!

’ 7

area,’ “ had become incorrect due to subsequent events.

After summarizing the district court’s opinion, the Court

of Appeals noted in its decision following oral argument that

the appropriate standard in its review of the dismissal is “as

if the amended complaint had been filed and then subjected

to review under Fed. R. Civ. P. 12(b)(6),” citing Wilder, 854

F.2d at 613. The reviewing court further noted the standard

that “a district court’s dismissal of a complaint pursuant to

Rule 12(b)(6) is reviewed de novo,” citing Sykes v. James,

13 F.3d 515, 518-19 (2d Cir. 1993). Despite the intervening

event brought to the Court’s attention prior to its decision,

the court concluded that it “agree[s] with the judgment of

the district court for substantially the same reasons stated

in its opinion and summarized above,” which included the

absence of the “triggering event” (emphasis added). Without

further discussion on those subjects, the court then discussed

1. The Court reproduced the district court’s error, using

“nonattainment,” where the State’s request was to be redesignated

from nonattainment to “attainment” status.

6

two arguments raised by petitioners but not addressed by

the district court.

On its petition for panel rehearing, which was denied,

petitioners again stressed the importance of this intervening

change -— the CO Redesignation Request as the “triggering

event” of the broader procedure for evaluating CO hot spots

—— that occurred after briefing was completed.

In that Redesignation Request, just as it had bound itself

in the 1992 SIP, the State declared the City would have to

take all the steps of the broader procedure — including

undertaking traffic studies and reviewing predicted growth

indicators — which resembled the predictions for the broader

procedure as envisioned in the 1992 CO SIP.

INTRODUCTION AND SUMMARY OF ARGUMENT

The Court of Appeals’ dramatic departure from this

Court’s clear directives regarding relaxed pleading standards,

liberal grant of amendments to pleadings and de novo review

of complaints form a three-pronged assault on this Court’s

established fundamental procedural rules protecting litigants.

The lower court’s grievous errors are particularly devastating

to environmental citizen suit plaintiffs challenging New

York’s most powerful economic and politicai interests, as

in this case — Time-Warner, along with one of the City’s

most aggressive developers, strongly backed by Mayor

Rudolph Giuliani and a $360 million price tag. Citizen

plaintiffs’ ability to make such challenges have already been

limited by this Court’s more sharply drawn rules on standing

and mootness in recent years. Failure of this Court to reverse

in this case would convince citizen suit plaintiffs of this

Court’s indifference to their concerns.

seme iii

5

Here, at the same time that the City and State of New

York ardently back the development project under challenge

here, they have since 1992 been bound by federal law to

employ a “broader alternative procedure,” namely, a whole

new panoply of detailed studies to identify carbon monoxide

hot spots starting in August 1999. This significant and

dispositive change in federal law, in effect prior to the lower

court’s decision, should have dispelled any remaining doubts

about the facial adequacy of petitioners’ proposed amended

complaint. The interests of justice now mandate reversal of

the district court’s dismissal of the complaint.

REASONS FOR GRANTING THE WRIT

I.

THE DECISION OF THE COURT OF APPEALS IS

IN GROSS CONFLICT WITH RELEVANT DECISIONS

OF THIS COURT MANDATING RELAXED PLEADING

STANDARDS, LIBERALLY GRANTED AMENDMENTS

TO COMPLAINTS, AND DE NOVO REVIEW BY

APPEALS COURTS OF THE ADEQUACY OF

COMPLAINTS. (Questions 1 and 2)

The Court of Appeals erred in denying plaintiffs the

opportunity to file a proposed second amended complaint,

by prejudging the substantive merits of the amended claims,

rather than their facial adequacy, in violation of the relaxed

pleading standard of Conley v. Gibson, 355 U.S. 41, 45-46

(1957), and Rule 12, Fed. R. of Civ. P. Moreover, the Court

of Appeals’ refusal to allow amendment of the complaint

subverts this Court’s long-standing directives regarding

liberal leave to amend complaints (Fed. R. Civ. P. 15(a)),

8

and a reluctance to grant motions to dismiss for failure to

state a claim upon which relief can be granted (Fed. R. Civ.

P. 12(b)(6)). In addition, petitioners were entitled to a true

de novo review of the facial adequacy of their proposed

amended complaint, especially the Fourth Claim, given the

supervening change in the underlying facts — namely, the

triggering of the imposition of a federal mandate applying a

broader procedure for review of the potential of proposed

projects to cause CO hot spots.

There was ample evidence upon which to allow

petitioners to amend their complaint and develop their case

on the merits. This denial has deprived petitioners of the

proper protection that this Court has accorded those rules.

A.

Rule 15(a) of the Federal Rules of Civil Procedure

provides that when leave of court is required to amend a

complaint, such “leave shall be freely given when justice so

requires.” Fed. R. Civ. P. 15. This Court has held that “[i]f

the underlying facts or circumstances relied upon by a

plaintiff may be a proper subject of relief, he ought to be

afforded an opportunity to test his claim on the merits.”

Foman vy. Davis, 371 U.S. 178, 182 (1962). Courts have

exercised a pervasive liberality in allowing amendment under

Rule 15(a), in recognition of the axiomatic principle that

“controversies should be decided on merits whenever

practicable.” United States v. New York, 82 FRD 2 (N.D.N.Y.

1978); see, e.g., Gillespie v. United States Steel Corp., 379

U.S. 148 (1964).

Here the question of leave to amend is guided by the

standards of Federal Rule of Civil Procedure 12(b)(6) (“Rule

9

{

12(b)(6)”). This rule allows parties to move for dismissal of

a complaint when that complaint fails to state a claim upon

which relief can be granted. Rule 12(b)(6). This Court has

directed that “a complaint should not be dismissed [on this

basis] unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would

entitle him to relief.” Conley v. Gibson, 355 U.S. at 45-46.

This Court has further cautioned that an inquiry under Rule

12(b)(6) is a limited one because the decision is made “before

the reception of any evidence either by affidavit or

admissions.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

Thus, “[t]he issue is not whether a plaintiff will ultimately

prevail but whether the claimant is entitled to offer evidence

to support the claims. Indeed it may appear on the face of

the pleadings that a recovery is very remote and unlikely

but that is not the test.” Scheuer, 416 U.S. at 236.

Liberal leave to amend complaints and reluctance to

grant motions to dismiss for failure to state a claim are closely

intertwined doctrines. They are both a direct reflection of

the tenet that parties should be permitted to present their

claims on the merits and not upon a mere notice pleading.

This is a concept fundamental to our system of justice. “[T]he

purpose of pleading is to facilitate a proper decision on the

merits.” Conley v. Gibson, 355 U.S. at 48.

Because the “triggering event” for the broader procedure

for identification of CO hot spots had taken place, and was

brought to the Court of Appeals’ attention prior to its

decision, petitioners were entitled to develop evidence in

discovery to demonstrate that the City had failed to take the

steps required in the broader alternative procedure for CO

hot spot identification, and offer it in support of their Fourth

Claim. Plaintiffs should have been permitted to do so even

10

if it “appear[ed] on the face of the pleading that a recovery

is very remote and unlikely,” for “that is not the test.”

Scheuer, 416 U.S. at 236.

Accordingly, the lower court’s decision undermines this

Court’s clear directive regarding liberal pleading and

reluctance to dismiss complaints, something that is

‘particularly important in citizen suits, where important

societal concerns are at stake.’

B.

The Court of Appeals also grievously erred in failing to

provide proper de novo review of the facial adequacy of the

proposed amended complaint, given the intervening change

in the underlying facts and law, namely, the Redesignation

Request that triggered an expanded procedure to identify

potential CO hot spots. Like this Court’s relaxed pleading

standard and liberal amendment of complaint standard, de

novo review gives plaintiffs a second bite at the apple and

requires a reexamination by the appeals court of the adequacy

of the complaint, especially in a citizen suit, as if the

complaint had in fact been filed, and then “subjected to

review under Fed. R. Civ. P. 12(b)(6)” by that reviewing

court. Wilder, 854 F.2d at 613; Sykes v. James, 13 F.3d 515,

518-19 (2d Cir. 1993). Though those cases and that principle

were cited with approval by the Court of Appeals in this

case, App. A at 3a, 6a, the standard was not, in fact, applied

by the Second Circuit.

2. “Citizen suits are an important aspect of the CAA

enforcement scheme.” Friends of the Earth v. Carey, 535 F.2d 165,

172 (2d Cir. 1976); see also Natural Resources Defense Council,

Inc. v. Train, 166 U.S. App. D.C. 312, 5120 F.2d 692, 699-700

(D.C. Cir. 1974).

ed Gut Cis Cee SORA CULT ete Bene eC

eo AS ON aa mean Ui Me seg

11

As noted, in August 1999, the State of New York made

the Redesignation Request to EPA; that triggered the

obligation in § 4.4 of the 1992 CO SIP, which took on the

force of federal law once approved by EPA. 42 U.S.C.

§ 7604. It is as if the CAA itself had been amended to include

this new responsibility to develop a broader alternative

procedure.

This Court has “regularly applied intervening statutes

conferring . .. jurisdiction, whether or not jurisdiction lay

when the underlying conduct occurred or when the suit was

filed.” Landgraf v. USI Film Products, et al., 511 U.S. 244,

273 (1994) (citations omitted). In Andrus v. Charlestone

Stone Products Co., 436 U.S. 604 (1978), the failure to allege

$10,000 in controversy at the commencement of an action

was once a fatal defect at the time of filing, mandating

dismissal, but became “of no moment” to the reviewing court

following passage of a statute, pending the appeal, that

eliminated the requirement. Similarly, in United States vy.

Alabama, 362 U.S. 602 (1960), the Justice Department’s

voting discrimination action brought against Alabama was

properly dismissed by the district court, given that the Civil

Rights Act of 1957 did not provide for such an action against

a state. The dismissal was affirmed by the Court of Appeals

for the Fifth Circuit. However, shortly before this Court heard

the case, Congress passed the Civil Rights Act of 1960 which

expressly allowed for such an action. In allowing the United

States to proceed with its law suit, this Court held that

“[u]nder familiar principles, the case must be decided on

the basis of law now controlling.’ Jd., 362 U.S. at 604.

3. Notably, this Court did not reach or intimate any view upon

the merit of the case or any defenses, but merely allowed the U.S.

to continue with its action in Federal Court. Jd.

12

Here, the “law now controlling” has changed because

of the City’s Redesignation Request. Pursuant to the CAA,

in conjunction with the 1992 SIP, the City has now incurred

a substantially broader obligation and responsibility under

federal law. The law has clearly changed while this case was

on appeal, and the lower court has stubbornly refused to

recognize this change, instead prejudging on the merits based

upon out-of-date assumptions. Plaintiffs deserve the

opportunity to obtain discovery reflecting the City’s action

or inaction in carrying out its new responsibilities under the

SIP.

When an intervening change occurs in the underlying

facts and law, and that change will affect the outcome of a

case pending appeal, the Court is bound to consider such

change. State Tax Commission, et al. v. Van Cott, 306 U.S.

511, 516 (1939) (“in determining what justice does require,

the Court is bound to consider any change, either in fact or

in law, which has supervened since the judgment was

entered”) (quoting Patterson v. Alabama, 294 U.S. 600, 607).

There can be little doubt that “[i]ntervening and conflicting

decisions will thus cause the reversal of judgments which

were correct when entered.” Vandenmark v. Ownes-Illinois

Glass Co., 311 U.S. 538, 542-43 (1941). For the same reason,

the Court of Appeals could not affirm the judgment of the

district court “for substantially the same reasons stated in

its opinion,” App. A at 6a, when the pertinent reasoning was

explicitly based on a fact, cited by the district court (i.e., no

request yet for redesignation), that ceased to be true while

the appeal was sub judice.

In sum, the proposed amended complaint should be

reinstated, and the case should be remanded to the district

court to permit discovery to take place on plaintiffs’

allegations.

tcl

13

Il.

THE DECISION OF THE COURT OF APPEALS

CONFLICTS WITH THE SECOND CIRCUIT’S

REQUIREMENTS FOR CITIZEN SUITS. (Question 3)

The court below erred in affirming the district court’s

finding that the cited provisions of the 1992 New York CO

SIP do not contain a “specific strategy” as required in citizen

suits. Review of predicted growth indicators, vehicle miles

traveled and traffic studies conducted by the State in a variety

of areas and intersections, potentially including some not

examined in the EIS, are all “specific strategies” and

commitments within the meaning of the Clean Air Act citizen

suit provision, 42 U.S.C. § 7604(f)(3), and the cases

discussing such strategies, see, e.g., Wilder v. Thomas, 854

F.2d at 613. The CAA broadly provides that:

any person may commence a civil action on his

own behalf — (1) against any person . . . who is

alleged to be in violation of (A) an emission

standard or limitation under [the CAA]. ... .

42 U.S.C. § 7604(a)(1) (emphasis added). The CAA defines

an “emission standard or limitation” as, inter alia:

(3) ... any condition or requirement under an

applicable implementation plan relating to

transportation control measures, air quality

maintenance plans, vehicle inspection and

maintenance programs or vapor recovery

requirements ...

14

(4) any other standard, limitation, or schedule

established ... under any applicable State

implementation plan approved by the

Administrator, ... which is in effect ... under

an applicable implementation plan.

42 U.S.C. § 7604(f)(3). Wilder, 854 F.2d at 614; Coalition,

967 F.2d at 769.

The State’s CO Redesignation Request filed in August

1999 is an “air quality maintenance plan” that, as the district

court held would happen, triggered the broader review

procedure for potential CO hot spots, which petitioners

properly alleged in the Fourth Claim of the proposed

amended complaint; the Redesignation Request contains

several “specific strategies” to obtain and maintain

compliance with the CO standard.

Thus, on remand to the district court for its review of

the adequacy of the proposed pleading, the court would have

to review this allegation of violation by the City of the

“specific strategy” in question, namely, a “broader alternative

procedure” as required by the 1992 SIP.* Under the facts as

they exist now, the Fourth Claim clearly states a claim upon

which relief may be granted.

4. | 87, the Fourth Claim, alleges in pertinent part that

“Defendants violated two specific strategies set forth in. . . the SIP

[including] Section 4.4 [which] commits the City to develop a

broader alternative procedure to identify potential areas at risk of

exceedance of the CO standard.” (Emphasis in original).

15

CONCLUSION

For the reasons set forth above, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

CRAIG P. Murpuy

Counsel of Record

JAMES J. PERICONI

JOHN D. HOLDEN

WINDELS Marx LANE

& MITTENDoRF, LLP

Attorneys for Petitioners

156 West 56" Street

New York, New York 10019

(212) 237-1000

7

APPENDIX

la

APPENDIX A — SUMMARY ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT DATED AND FILED DECEMBER 22, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

* * *

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 22nd day of

December, one thousand nine hundred and ninety-nine.

Present: PIERRE N. LEVAL

GUIDO CALABRESI

ROBERT A. KATZMANN,

Circuit Judges

99-7403

COMMITTEE FOR ENVIRONMENTALLY SOUND

DEVELOPMENT, INC., NORTH RIVER COMMUNITY

ENVIRONMENTAL REVIEW BOARD, WEST VILLAGE

COMMITTEE, COALITION FOR A LIVABLE WEST

SIDE, GEORGIO CAVAGLIERI, JOHN L. BUNCH, JR..,

PHYLLIS GUNTHER, HARRIET WEISSBERGER,

and OLIVE FREUD,

Plaintiffs-Appellants,

2a

Appendix A

THE CITY OF NEW YORK, RUDOLPH GIULIANI, as

Mayor of The City of New York, THE METROPOLITAN

TRANSPORTATION AGENCY, and TRIBOROUGH

BRIDGE AND TUNNEL AUTHORITY,

Defendants-Appellees,

Appeal from the United States District Court for the

Southern District of New York (Shirley Wohl Kram, J.).

ON CONSIDERATION WHEREOF, IT IS HEREBY

ORDERED, ADJUDGED, AND DECREED that the

judgment of the District Court be and it hereby is

AFFIRMED.

_ This matter concerns the proposed redevelopment of the

area currently occupied by the New York Coliseum, located

on the “superblock” bounded by West 58" Street, West 60"

Street, Ninth Avenue and Columbus Circle in New York,

New York. Plaintiffs are individuals, and community

organizations representing individuals, who claim that they

will be adversely impacted by alleged increases in carbon

monoxide (“CO”) levels caused by, or in the vicinity of, this

redevelopment project.

The Clean Air Act (CAA), 42 U.S.C. §§ 7409 et seq.,

requires the EPA to promulgate national ambient air quality

standards (NAAQS) for various pollutants. Each State then

determines how to achieve and maintain these standards by

devising a State Implementation Plan (SIP). See 42 U.S.C.

|

|

|

3a

Appendix A

§ 7410. The citizen suit provision of the CAA creates a

private right of action to enforce the Act’s provisions. A

citizen may bring a suit to enforce: (1) a specific provision

of the CAA; or (2) a specific provision of an applicable SIP.

See 42 U.S.C. § 7604; see also Wilder v. Thomas, 854 F.2d

605, 613 (2d Cir. 1988). New York State’s current SIP was

promulgated in 1992 and replaced a SIP promulgated in 1984.

The SIP specifies the use of environmental impact statements

(EIS) to evaluate projects that may significantly impact

environmental quality. See Coalition Against Columbus Ctr.

v. City of New York, 967 F.2d 764, 767 (2d Cir. 1992).

Plaintiffs filed a complaint in January 1998 alleging

violations of the CAA and New York’s Uniform Land Use

Review Procedure (ULURP), N.Y. City Charter § 197-c,

based upon alleged exceedances of the CO NAAQS (“CO

standard”) in the vicinity of the site. An amended complaint

followed in February 1998. In an unpublished opinion and

order, the district court concluded pursuant to Fed. R. Civ. P.

12(b)(6) that plaintiffs had failed to state a federal claim upon

which relief could be granted, and therefore declined to

exercise supplemental jurisdiction over the state law claims.

The court indicated that plaintiffs were free to submit a

proposed amended complaint that “should identify, separately,

each specific strategy or commitment in New York’s SIP

alleged to be violated and describe, with some particularity,

the respects in which compliance with the provision is

deficient. Thereafter, the Court will decide whether leave to

amend shall be granted.”

In December 1998, plaintiffs filed a proposed amended.

complaint purporting to identify defendants’ violations of

4a

Appendix A

sections 4.0(2) and 4.4 of the 1992 SIP. Section 4.0(2) of

the 1992 SIP states in relevant part that:

The [1984] SIP committed the State and City to:

2. Follow a specified procedure for the

ongoing identification and mitigation

of hot spots. This procedure entailed

a commitment by the City to review

Environmental Impact Statements

(EIS) and assure that any site at

which an EIS identifies a violation

or exacerbation of the carbon

monoxide standard is brought into

attainment of the standard.

Section 4.4 of the 1992 SIP declares in relevant part that:

The 1984 SIP states “.. . if an EIS for a project

identifies a violation or exacerbation of the carbon

monoxide standard, then the City commits to

assure that mitigating measures will be

implemented ... .”

The City of New York will continue to follow the

procedure for identifying potential exceedances

resulting from new projects and/or disclosed in

the environmental review process. The City will

continue to assure that project sponsors or the City

5a

Appendix A

will mitigate potential exceedances caused by a

project ....

The State and City commit to develop a broader

alternative procedure to identify potential areas

at risk of exceedance of the CO standard, taking

into account a wider database, consistent with all

relevant methodologies, including: modeling, data

collection and growth projection. This new

procedure will become part of the CO

Maintenance Plan which must be submitted at the

time that the State requests redesignation of the

nonattainment area as an area which has attained

the NAAQS for CO.

In an unpublished opinion and order dated March 9,

1999, the district court denied plaintiffs leave to amend their

complaint, concluding that the proposed amendments did not

state a claim upon which relief could be granted. With regard

to the alleged violations § 4.0(2), the court held that: (1)

§ 4.0(2) does not state a specific strategy or commitment

upon which plaintiffs could base a suit because it is merely

a description of the commitments outlined in the 1984 SIP:

and (2) in any event, plaintiffs’ underlying § 4.0(2) claim

was based upon alleged exceedances not identified in the

EIS.’ As for § 4.4, the court held that: (1) plaintiffs’ claim

that the City violated this section by failing to mitigate

“potential” exceedances did not state a cause of action

2. The particular EIS for the redevelopment project at issue

here is known as the “Final Supplemental Environmental Impact

Statement.”

6a

Appendix A

because the EIS had not identified any such exceedances;’

and (2) the City’s obligation under the Section to develop “a

broader alternative procedure to identify potential areas at

risk of exceedance of the CO standard” is triggered by a

request from New York State for redesignation of New York

City as a “nonattainment area,” an event which has not yet

occurred. The court accordingly denied plaintiffs’ motion

to amend their complaint and dismissed the case.

When a district court has “found [a] proposed amended

complaint legally insufficient and denied plaintiffs any

opportunity to further amend their pleading .... [the]

decision [is reviewed] as if the amended complaint had been

filed and then subject[ed] to review under Fed. R. Civ. P.

12(b)(6).” Wilder, 854 F.2d at 613. A district court’s

dismissal of a complaint pursuant to Rule 12(b)(6) is

reviewed de novo. See, e.g., Symes v. James, 13 F.3d 515,

518-19 (2d Cir. 1993).

On appeal, plaintiffs repeat many of the arguments made

before the district court. With regard to these arguments, we

agree with the judgment of the district court for substantially

the same reasons stated in its opinion and summarized

above.* The district court’s opinion does not address

3. To the extent plaintiffs allege that the preparation of the

EIS in this case was flawed or inadequate, such a claim standing

alone does not state a federal cause of action. Cf South Bronx

Coalition for Clean Air, Inc. v. Conroy, 20 F. Supp.2d 565, 570-71

(S.D.N.Y. 1998).

4. We note that, with respect to the holding that a portion of

plaintiffs’ claim under § 4.4 of the SIP is premature, we express no

view on whether that claim may be brought at some later date.

Ta

Appendix A

plaintiffs’ argument that § 4.4’s language stating that “{t]he

City of New York will continue to follow the procedure for

identifying potential exceedances resulting from new projects

and/or disclosed in the environmental review process”

requires defendants to conduct an environmental review that

goes beyond the EIS. We now reject this argument. When

this isolated quote is read in context, it becomes evident that

it merely refers back to § 3.6(A) of the 1984 SIP and does

not mandate an environmental review process independent

of an EIS in this case:

The 1984 SIP states “... if an EIS for a project

identifies a violation or exacerbation of the carbon

monoxide standard, then the City commits to

assure that mitigating measures will be

implemented ... .”

The City of New York will continue to follow

the procedure for identifying potential

exceedances resulting from new projects and/or

disclosed in the environmental review process.

The City will continue to assure that project

sponsors or the City will mitigate potential

exceedances caused by a project. Exceedances

identified in the environmental review process

which are not caused by the project will be subject

to appropriate control measures.

(emphasis added).

Nor does the district court’s opinion address plaintiffs’

argument that under § 4.4 they need only allege a mere

8a

Appendix A

exacerbation of CO levels, as opposed to an exceedance of

the CO standard, in order to state a cause of action. It seems

clear to us that under this provision the City’s obligation to

mitigate CO levels is triggered only where an exceedance of

the CO standard is created or an already existing exceedance

is exacerbated, not where CO levels increase but stay below

the standard. To hold otherwise would establish an entirely

standardless obligation, requiring mitigation for any increase

in CO levels. Plaintiffs’ argument on this point is without

merit.

Accordingly, for the foregoing reasons, the judgment of

the district court is affirmed.

FOR THE COURT:

KAREN GREVE MILTON,

Acting Clerk

By: s/ Ralph A. Anderson

RALPH A. ANDERSON,

Deputy Clerk

ACTING OPERATIONS

MANAGER

9a

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF NEW YORK DATED MARCH 9, 1999

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

98 Civ. 272 (SWK)

COMMITTEE FOR ENVIRONMENTALLY SOUND

DEVELOPMENT, INC., NORTH RIVER COMMUNITY

ENVIRONMENTAL REVIEW BOARD, WEST VILLAGE

COMMITTEE, COALITION FOR A LIVABLE WEST SIDE,

GEORGIO CAVAGLIERI, JOHN L. BUNCH, JR., PHYLLIS

GUNTHER, HARRIET WEISSBERGER, OLIVE FREUD,

Plaintiffs,

-against-

THE CITY OF NEW YORK, RUDOLPH GIUILIANI AS

MAYOR OF THE CITY OF NEW YORK, THE

METROPOLITAN TRANSPORTATION AUTHORITY, and

- TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY,

Defendants.

ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

In this action alleging violations of the Clean Air Act

(“CAA”), 42 U.S.C. §§ 7401 et seqg., and the New York City

Uniform Land Use Review Procedure (“ULURP”), N.Y. City

10a

Appendix B

Charter § 197-c, in connection with the redevelopment of the

area currently occupied by the New York City Coliseum (the

“Coliseum site”)', plaintiffs move, pursuant to Federal Rule of

Civil Procedure 15(a), to amend their complaint. For the reasons

set forth below, the motion is denied and the action is dismissed.

On December 1, 1998, having determined that plaintiffs’

complaint failed to state a claim on which relief may be granted,

plaintiffs were granted an opportunity to prepare a proposed

amended complaint, pursuant to Federal Rule of Civil Procedure

15(a) .2 On December 23, 1998, plaintiffs filed a proposed

amended complaint that purports to identify violations of

specific strategies and commitments in New York’s State

Implementation Plan, New York State Air Quality

Implementation Plan for Control of Carbon Monoxide and

Hydrocarbons in New York City Metropolitan Area (Jan. 1984)

(“1984 SIP”); New York State Implementation Plan, Carbon

Monoxide Attainment Demonstration New York Metropolitan

Area (Nov. 1992) (“1992 SIP”).’

1. The subject of this action is the former New York City

Coliseum, an office building and a parking garage located on the

“superblock” bounded by West 58th Street, West 60th Street, Ninth

Avenue and Columbus Circle in New York, New York.

2. The background of this case is set forth more fully in the

Court’s December 1, 1998 Memorandum Opinion and Order

(“December 1998 Order”), familiarity with which is presumed. Only

those facts related to the disposition of the instant motion are

discussed below.

3. Pursuant to the CAA, each state determines how to achieve

and maintain national ambient air quality standards (“NAAQS”) by

devising a State Implementation Plan.

lla

Appendix B

Federal Rule of Civil Procedure 15(a) provides, in part,

that once a responsive pleading has been served, “a party

may amend the party’s pleading only by leave of court or by

written consent of the adverse party; and leave shall be freely

given when justice so requires.” Fed. R. Civ. P. 15(a). The

decision to grant or deny leave to amend lies within the

Court’s discretion. Foman y. Davis, 371 U.S. 178, 182, 83

S. Ct. 227 (1962). In this case, the Court is guided by the

standards of Federal Rule of Civil Procedure 12(b) in

deciding whether leave to amend shall be granted.

In evaluating a complaint under Rule 12(b), the Court

must accept the allegations in the complaint as true and

construe them in the light most favorable to the plaintiff.

Scheuer v. Rhodes, 416 U.S. 232, 236, 94S. Ct. 1683, 1686

(1974); Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir.

1991), cert. denied, 504 U.S. 911 (1992). A complaint should

not be dismissed “unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim that

would entitle him to relief.” Conley v. Gibson, 355 U.S. 41,

45-46, 78 S. Ct. 99 (1957). In its December 1998 Order, to

avoid dismissal of the complaint, the Court directed plaintiffs

to identify, separately, in their proposed amended complaint

“each specific strategy or commitment in New York’s SIP

alleged to be violated and describe, with some particularity,

the respects in which compliance with the provision is

deficient.” December 1998 Order at 11.

Plaintiffs’ proposed amended complaint rests on alleged

violations of two sections of the 1992 SIP. Specifically,

plaintiffs allege that the City of New York has violated

Sections 4.0(2) and 4.4. Section 4.0(2) of the 1992 SIP states:

12a

Appendix B

The [1984] SIP committed the State and City to:

2. Follow a specified procedure for the

ongoing identification and mitigation of

hot spots. This procedure entailed a

commitment by the City to review

Environmental Impact Statements (EIS)

and assure that any site at which an EIS

identifies a violation or exacerbation of

the carbon monoxide standard is

brought into attainment of the standard.

1992 SIP, § 4.0(2). Section 4.0(2) is simply part of the 1992

SIP’s description of the committments outlined in the 1984

SIP. Section 4.0(2) does not contain its own specific strategy

or commitment on which plaintiffs’ suit may rest.

Furthermore, underlying plaintiffs’ Section 4.0(2) claims are

essentially the same arguments about “hot spots” found

insufficient in plaintiffs’ original complaint. See December

1998 Order, at 15-16.

Section 4.4 of the 1992 SIP states, in relevant part:

The City of New York will continue to follow

the procedure for identifying potential

exceedances resulting from new projects and/or

disclosed in the environmental review process.

The City will continue to assure that project

sponsors or the City will mitigate potential

13a

Appendix B

exceedances caused by a project .... The State

and City commit to develop a broader alternative

procedure to identify potential areas at risk of

exceedance of the CO standard, taking into

account a wider database, consistent with all

relevant methodologies, including: modeling, data

collection and growth projection. This new

procedure will become part of the CO

Maintenance Plan which must be submitted at the

time that the State requests redesignation of the

nonattainment area as an area which has attained

the NAAQS for CO.

1992 SIP, § 4.4. Plaintiffs argue that defendants have violated

Section 4.4 by failing to mitigate potential exceedances.

Specifically, plaintiffs argue that the City’s has failed to

implement an enhanced motor vehicle inspection and

maintenance program and failed to develop an alternative

procedure to identify potential areas at risk of exceeding the

NAAQS standard. However, an explained extensively in the

December 1998 Order, the environmental review process has

not identified any exceedances that will be caused by

redevelopment of the Coliseum site. See December 1998

Order, at 12-13.4 Accordingly, the redevelopment of the

Coliseum site as outlined in the EIS does not trigger a

mitigation obligation for the City. Furthermore, any alleged

deficiencies in the environmental review process are not

4. Plaintiffs’ allegation that redevelopment of the Coliseum

site will result in a level of carbon monoxide close to the NAAQS

in the vicinity of the Coliseum site is also insufficient to state a

claim under this section. See Proposed Amended Complaint, 9 65.

14a

Appendix B

the proper subject of a citizen suit under the CAA.°

See December 1998 Order at 14.

Nevertheless, plaintiffs argue that the City is obligated

to develop a broader procedure for the identification of

potential exceedances caused by a project than is currently

used in the EIS process. However, the City’s obligation to

develop “a broader alternative procedure to identify potential

areas at risk of exceedance of the CO standard” is a future

one, which is triggered by a request from New York State

for redesignation of New York City as a nonattainment area.

1992 SIP, § 4.4. Plaintiffs have not aileged that such a

triggering event has occurred.

For the reasons set forth above and in the Court’s

December 1998 Order, plaintiffs’ proposed amended

complaint fails to state a claim on which relief may be

granted. Accordingly, plaintiffs’ motion to amend its

complaint is denied and this action is dismissed.

SO ORDERED.

s/ Shirley Wohl Kram

SHIRLEY WOHL KRAM

UNITED STATES DISTRICT JUDGE

DATED: New York, New York

March 9, 1999

5. Plaintiffs’ assertion that the 1992 SIP enables citizen suits

where a project sponsor has intentionally omitted a hot spot from

their environmental review is unsupported and without merit.

15a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

DENYING PETITION FOR REHEARING DATED

AND FILED FEBRUARY 11, 2000

U.S. COURT OF APPEALS

FOR THE SECOND CIRCUIT

UNITED STATES COURT HOUSE

40 FOLEY SQUARE

_NEW YORK 10007

KAREN GREVE MILTON

ACTING CLERK

At a stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse,

Foley Square, in the City of New York, on the 11th day of

February, two-thousand.

Present:

Hon. Pierre N. Leval

Hon. Guido Calabresi,

Hon. Robert A. Katzman,

CIRCUIT JUDGES.

Docket No. 99-7403

Committee for Environmentally

Sound Development, et al.,

Plaintiffs-Appellants,

16a

Appendix C

The City of New York, et al.

Defendants-Appellees,

Order

A petition for panel rehearing having been filed herein by

The Committee for Environmentally Sound Development,

et al.,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

FOR THE COURT

KAREN GREVE MILTON,

Acting Clerk

By: s/ Beth J. Meador

Beth J. Meador,

Administrative Attorney

EE EE A a bt BITE Wa A dl

as A

17a

APPENDIX D — STATUTORY PROVISIONS

AND RULES INVOLVED

The pertinent part of the federal Clean Air Act, 42 U.S.C.

§§ 7401, er seq., is the citizen suit provision, 42 U.S.C.

§ 7604, which states in relevant part:

any person may commence a civil action on his

own behalf — (1) against any person . . . who is

alleged to be in violation of (A) an emission

standard or limitation under [the CAA]. ...

42 U.S.C. § 7604(a)(1).

The CAA defines an “emission standard or limitation”

as, inter alia:

(3) ... any condition or requirement under an

applicable implementation plan relating to

transportation control measures, air quality

maintenance plans, vehicle inspection and

maintenance programs or vapor recovery

requirements ... or

(4) any other standard, limitation, or schedule

established ... under any applicable State

implementation plan approved by the

Administrator, . ...

which is in effect . . . under an applicable implementation

plan.

42 U.S.C. § 7604(f)(3)-(4).

18a

Appendix D

Federal Rule of Civil Procedure 12(b)(6) (“Defenses and

Objections”) provides in pertinent part:

Every defense, in law or fact, to a claim for relief

in any pleading, whether a claim, counterclaim,

cross-claim, or third-party claim, shall be asserted

in the responsive pleading thereto if one is

required, except that the following defenses

may at the option of the pleader be made by

motion: . . . (6) failure to state a claim upon which

relief can be granted, . . .

Fed. R. Civ. P. 12(b)(6).

Federal Rule of Civil Procedure 15(a) (“Amended and

Supplemental Pleadings’) provides in pertinent part:

A party may amend the party’s pleading once as

a matter of course at any time before a responsive

pleading is served or, . . . within 20 days after it

is served. Otherwise a party may amend the

party’s pleading only by leave of court or by

written consent of the adverse party; and leave

shall be freely given when justice so requires.

Fed. R. Civ. P. 15(a).

St ts

19a

Appendix D

Section 4.4 of the 1992 New York State Carbon

Monoxide State Implementation Plan declares in relevant

part that:

The State and City commit to develop a broader

alternative procedure to identify potential areas

at risk of exceedance of the CO standard, taking

into account a wider database, consistent with all

relevant methodologies, including: modeling, data

collection and growth projection. This new

procedure will become part of the CO

Maintenance Plan which must be submitted at the

time that the State requests redesignation of the

nonattainment area as an area which has attained

the NAAQS for CO.

1992 New York CO SIP.