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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 814

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1032%3A1. Public record. Not legal advice.