Opposition Brief — Committee for Environmentally Sound Development, Inc. v. City of New York

NO. 99-1814 MOlivw FILED

JUN - 2 2000

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,

-against-

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.

CITY RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

'

MICHAEL D. HESS,

Corporation Counsel of the

City of New York,

Attomey for City Respondents,

100 Church Street,

New York, New York 10007.

(212) 788-1010, 1041

LEONARD J. KOERNER*

FRANCIS F. CAPUTO,

GEORGE GUTWIRTH,

of Counsel

June 9, 2000

*Counse! of Record

is

Aes

BA fae se,

Tia Sar coer he Sea

Keg ee

a Maas rs

COUNTER STATEMENT OF

THE QUESTION PRESENTED

Did the United States Court of Appeals for the

Second Circuit correctly affirm the denial by the District

Court for the Southern District of New York of plaintiffs’

application to replead their Purported claim under the Clean

Air Act (CAA), 42 U.S.C. §7401, et. seq., based on which

plaintiffs sought to enjoin the sale and redevelopment of

the Coliseum site at Columbus Circle in Manhattan? The

ruling on whether to permit repleading involved

construction of the applicable New York State

Implementation Plan (SIP) for compliance with Clean Air

Act (CAA) carbon monoxide (CO) control standards.

TABLE OF CONTENTS

Page

COUNTER STATEMENT OF THE QUESTION

ik i a a tis aki eansenduienicioee i

Te er Per I aide ccsstincsscesarsorscesrensisorsasions il

COUNTER STATEMENT OF THE CASE.............c::ccee00 |

First Decision and Order of the District

i ia as ae Scciee eaiah caniebhpsenibnsneives 6

District Court's Order Denying the Motion

to Amend The Commplaint.................c.cccsresssoossscossees 8

DECISION OF THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT...............004 9

REASONS FOR DENYING THE WRIT ...........:ccscseeseeees 11

RN a ak nk cs isa cas snsbta pain dlasasbddch oo Dhcdeed 21

TABLE OF AUTHORITIES

Cases Page

Action for Rational Transit v. West Side Highway

Project,

GOFF .20 G14 (B0 Cie BOGS) wicsicacenteiericssiiccsssersrin 11, 16

Atlantic Terminal Urban Renewal Area Coalition v. New

York City Department of Environmental Protection,

740 F. Supp. 989 (S.D.N.Y. 1990) .........ccscessesesreeres 13

California Public Interest Research Group v. Shell Oil Co,

840 F. Supp. 712 (N.D. Cal. 1993) ..........cccccccscesvess 20

Citizens Association of Georgetown the Committee of 100

on the Fed City v. Washington,

$35 F.2d TSS (D.C. Cae. TRB) icseccccescccsrcssceciesevesives 1]

Coalition Against Columbus Center v. City of New York,

967 F.2d 764 (2d Cir. 1992) ...... 4,6, 11, 12, 16, 19, 20

Committee for Environmentally Sound Development, Inc.,

et. al. v. City of New York,

700 N.Y.S.2d 694 (1st Dept. 2000)............::ceeeeeeees 2, 18

Conservation Law Foundation, Inc. v. Busey,

TH Ee ABI CATR GA. TOD scsnrscscrcinsccecsncessccccine i AS y ae

Council of Commuter Organizations v. MTA,

OF Fie Re Ce eal. CED sinisacedsstcniceadnacvnatnisane 11, 16

Delaware Valley Citizens Council for Clean Air v. Davis,

: <r Ta i GE Ces IPD Rssicastaahaionsiansadsincs 15,19

Jackson v. New York State Urban Development Corp.,

FF a cae Ie CE oiciaessccndaickihcahenivceamibapicndibanss pe

Cases Page

Wo Real _v. City of New York,

FOIE DO PEE CIID occ hdiibeectincladcdecccdialicsescedbde 2

to Sav ke Tahoe, Inc. v. 4

598 F.2d 1164 (9th Cir. 1979)

GOT. Gem 444 U.S. GAS CUGTD) ....cccccccccccccsccocecceccececese 12

Matter of Kahn v. Pasnik,

ot ttf), : SRD RO Nr me Lome 09) NO RE 3

Matter of Waybro Corp. v. Board of Estimate of the City of

New York,

SF Fe, Fe OP CE vicccitncsccivumidniiod ube. in ta! 2

Plan for Arcadia, Inc. v. Anita Associates,

501 F.2d 390 (9th Cir. 1974)

cert. den 419 U.S. 1034 (1974) wooo cccccccccceceees 15, 20

Ross v. Moffitt,

EE Se I widen inate 20

State of Ohio v. Ruckelshaus,

776 F.2d 1333 (6th Cir. 1985)

COTt. Gen 476 U.S. 1169 (1986) .......ccccccccosccccccesccceeses 16

Sykes v. James,

RP Wet eh OGD, BODDD vssisidccitiniiccerdcanaed ood 9

United States v. General Motors Corp..,

876 F.2d 1060 (Ist Cir. 1989)

affd, 496 U.S. 530 (1990) .ceccccccccccscescscccocesesee. 4, 16

Village of nom e v. Dayton Hudson a

24 F.3d 962 (7th Cir. 1994)

Cert. den 513 U.S. 930 (1994) ou... .cccccccccccescsceceeees 7,19

Cases | Page

Wilder v. Thomas,

854 F.2d 605 (2d Cir. 1988)

cert, den. 489 U.S. 1053 (1989) ....sssscssssse 4,6, 7,9, 11

Statutes

40 CPR. 6 SOMINDD a viscisicncticcsienenseeaendtaaae 4

42 USC. $7401 0 tition ctke hs a ee. i

42 U.S.C. 4. MOP aii nada 10

42 U.S.C. § TOP ODD oscsercesciscsenstns a be tee 15

42 USL. $ OTE bi scicctadtianinnnebinaielts 15

42 USC. § 740? GD..cisici. eli. ee 15

42 USC. § TOD a oscseicssnsesdrenisnccossadackh ania 4

42 UBC. 6 TAB cccsccniccncsscccuncecameemn a 4

42 USC. § Tinie cies 10, 16

42 USC NEN oo cccsssecinnia etme ee 7

42 WSC. 8 Ny csiesccincnseeoneeees 7,19

42 UBC: 90 co iccccanic tetas eee 3,11

42 USL. 6 TAQNAND dace actin 6, 12

42 USC. 6 PARI: unsaneclncasns antes teu 6

AZ USL. 9 MOND cogs ckes inked hhc) 4,6

I lc a i i Be et i i Ot i

Statutes Page

Environmental Conservation Law § 8-0101 et. seg. ......... ]

OG Ws IW Fs CI sirens ck ith dain wiienicrccocts 20

New York City Charter § 197-0 wiccicciscsccscssassccessosesecsece 1,2

BUS ID Oe Meme eines sshccedcatsttsxeerescsnacnicdbsersseennsonios 4

PES SOM TIP ee GI isis cast sciintnstapsinzersscnsinizrcnncns 8

Fe SE I I as iis avianiinsstanernirsacinaascdidinaicces 5

NY State 1992 SIP § 4.4. oe 8, 10, 11, 13, 15, 19

-v-

CITY RESPONDENTS’

BRIEF IN OPPOSITION

TO PETITION FOR A

WRIT OF CERTIORARI

TO THE UNITED

STATES COURT OF

APPEALS FOR’ THE

SECOND CIRCUIT

COUNTER STATEMENT OF THE CASE

In this action, petitioners sought a declaratory

judgment that the City failed to comply with the Clean Air

Act, the New York State Environmental Quality Review

Act (SEQRA), Environmental Conservation Law (ECL) §

8-0101, et. seq., and the New York City Charter, § 197-c,

Uniform Land Use Review Procedure (ULURP),' with

' In the First Opinion and Order of the District Court, dated

December 1, 1998 (not included in Petitioners’ Appendix

before this Court), pendent jurisdiction of the state law

claims was denied, based on the dismissal of the federal

claims. The state law claims were litigated to final

determination adverse to plaintiffs before the New York

State courts. In a detailed opinion, Supreme Court, New

York County, by Decision and Judgment, dated August 2,

1999, dismissed plaintiffs’ SEQRA claim, which was

largely that the Final Environmental Impact Statement

(FEIS) for the proposed Coliseum redevelopment was

inadequate because it did not analyze the effect of the

proposed redevelopment on CO levels at Madison Avenue

and 59" Street, which had been identified as the site of a

potential CO exceedance in the late 1980s. The

defendants’ position was that updated modeling techniques

warranted analysis of other locations to determine the effect

of the proposed project on CO levels, and, in any event,

(continued...)

= Ss

(...continued)

there had been no exceedance of the National Ambient Air

Quality Standard (NAAQS) for CO anywhere in Manhattan

since 1991. Supreme Court, New York County, also

rejected petitioner's claim that the sale of the Coliseum site

was subject to ULURP, which applies to property of the

City of New York, a claim made despite a prior ruling by

the New York Court of Appeals in Jo & Wo Realty Corp.

v. City of New_York, 76 N.Y.2d 962 (1990), that the site

was the property of the Triborough Bridge and Tunnel

Authority (TBTA), which is not an agency of the City of

New York, and thus a contract for the sale thereof was not

subject to City bidding procedures.

The Appellate Division, First Department, by Decision

and Order, dated January 11, 2000, Committee for

Environmentally Sound Development, Inc., et. al. v. City of

New_York, 700 NYS2d 694, unanimously affirmed the

Judgment of Supreme Court, New York County, stating:

The court properly

determined that the sale and

dispositon of the Coliseum

site was not subject to the

Uniform Land Use Review

Procedure (See, New York

City Charter § 197-c; Jo &

Wo Realty Corp. v. City of

New York, 76 N.Y.2d 962,

see also, Matter of Waybro

Corp. v. Bd. of Estimate of

the City of New York, 67

N.Y.2d 349, and __ that

respondents complied with

State Environmental Quality

(continued...)

respect to the proposed sale and redevelopment of the

Coliseum site at Columbus Circle in Manhattan, which is

owned by the Triborough Bridge and Tunnel Authority

(TBTA). Petitioners sought a consequent injunction

against that sale and redevelopment.

The CAA, 42 U.S.C. §7604, provides that “any

person may commence a civil action on his own behalf-”

(1) against any person (including (i) the

United States, and (ii) any other

governmental instrumentality or

agency to the extent permitted by the

Eleventh Amendment to the

Constitution) who is alleged to have

violated (if there is evidence that the

(...continued)

Review Act by identifying

the relevant areas of

environmental concern and

by then taking the required

“hard look” at them (see,

Matter of Kahn v. Pasnik, 90

N.Y.2d 569, Matter of

Jackson v. New York State

Urban Dev. Corp., 67 N.Y.2d

400, 417, 503 N.Y.S.2d 298,

494 N.E.2d 429).

By Order dated April 6, 2000 (2000 NY Lexis 552), the

New York Court of Appeals denied leave to appeal the

Decision and Order of the Appellate Division, First

Department.

alleged violation has been repeated)

or to be in violation of (A) an

emission standard or limitation under

this chapter.

Under 42 U.S.C. §7604(f) an “emission standard or

limitation” includes “(1) a schedule or timetable of

compliance, emission limitation, standard of performance

or emission standard.”

Under the CAA, the Environmental Protection

Agency (EPA) promulgates the national ambient air quality

standards (NAAQS), 42 U.S.C. § 7409. Each state must

develop, subject to EPA approval, a State Implementation

Plan (SIP) to implement, maintain and enforce the NAAQS

for each regulated pollutant. 42 U.S.C. § 7410. See

aliti t v. Ci ,

967 F.2d 764, 766-767 (2d Cir. 1992); Wilder v. Thomas,

854 F.2d 605, 608-610 (2d Cir. 1988) cert. den. 489 U.S.

1053 (1989). Once a SIP is adopted by the EPA it becomes

federal law. United States v. General Motors Corp., 876

F.2d 1060, 1063 (1 Cir. 1989) affd 496 U.S. 530 (1989).

The applicable New York State SIP relies on

environmental impact statements to determine if a project

has the potential to cause an exceedance of the NAAQS for

CO. An exceedance occurs when in a calendar year there is

more than one maximum concentration exceeding nine

parts per million as a combined average over an eight hour

period (See 40 CFR § 50.8(a)(1); NY State 1992 SIP, p. 10;

supra, 967 F.2d at 768 (2d Cir. 1992). Specifically, the

applicable 1992 SIP states, under “Savings Provisions”,

§ 4.0, that the prior SIP committed the State and City to:

“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 4.2.2 of the 1992 SIP States: “The

1984 SIP commits to a procedure which depends on EISs to

identify additional sites with a potential for exceedance of

the CO standard. The exceedance identification process

committed to in the SIP has been followed.” Section 4.4,

“Revised Procedures for Identifying New CO

Exceedances,” states:

The 1984 SIP [3.6a] states “To further

ensure that the carbon monoxide standard is

attained in New York City, if any 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 by the project

sponsor or City, so as to provide for

attainment of the standard by December 31,

1987 and maintenance of it thereafter.”

The provision for a specific date for

attainment in this procedure is revised in this

present SIP submittal from December 31,

1987 to December 31, 1995 to reflect the

requirements of The Act.

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.

First Decision and Order of the District Court

In an Opinion and Order dated December 1, 1998,

(not included in Petitioners’ Appendix before this Court),

the District Court dismissed the complaint. Citing Wilder

v. Thomas, supra, 854 F.2d at 613, the Court noted that

pursuant to 42 U.S.C. § 7604(a) (1) and (3), the plaintiffs

could invoke the court’s jurisdiction only to enforce

specific provisions of the CAA or specific provisions of an

applicable SIP, and they had to identify with some

particularity the respects in which compliance with the

provision is deficient, citing Coalition Against Columbus

Center v. City of New York, supra, 967 F.2d at 769. There

was no private right of action to enforce a NAAQS, which

is not included within the statutory definition (42

USC 7604(f)) of an “emission standard or limitation”. In

prior litigation concerning this site, the Second Circuit

Court ruled that the mitigating measures for the 59th Street

“hot spot” identified in an EIS done in the early 1980s

were sufficient. Coalition Against Columbus Center _v.

? A “hot spot” is a location with the potential to exceed the

CO standard. Coalition against Columbus Center v. City of

New York, supra, 967 F.2d at 768.

City of New York, supra, 967 F.2d at 771.’ The current

FEIS did not identify any violation or exacerbation of the

CO standard. “Accordingly, no mitigation obligation

attaches to the 1998 project and the City cannot have an

obligation to mitigate something that, for these purposes,

does not exist.” The SIP designates the SEQRA EIS

process as the mechanism for reviewing the environmental

impacts of projects like the one at issue. SEQRA

establishes a set of procedures designed to assure that an

action’s potentially significant environmental consequences

are disclosed from the inception of the planning processes;

and the extent to which the procedures have been followed

in any particular case is subject to state judicial review,

citing Jackson v. New York State Urban Dev. Corp., 67

N.Y.2d 400, 416, 417 (1986); Wilder v. Thomas, supra,

854 F.2d at 619. A claim that an EIS was inadequate did

not state a federal cause of action under the CAA. The

claim that the 59th Street “hot spot” should have been

analyzed under the current FEIS was simply a challenge to

the preparation of the EIS, which was a state law claim.

> The District Court noted that the Coliseum project was

not a “stationary source” under 42 U.S.C § 7602 (j), as it

would not directly emit the regulated pollutants . Vehicular

traffic associated with the project could not render it a

“stationary source,” because under 42 U.S. C. § 7602 (z),

emissions resulting directly from an internal combustion

engine for transportation vehicles are excluded from the

definition of “stationary source”, citing Villa

v. Da ., 24 F.3d 962, 963

(7th Cir. 1994) cert. den. 513 U.S. 930 (1994) (“vehicular

emissions are not attributed to the buildings served as

points of origin or destination”).

District Court’s Order Denying the Motion to Amend

the Complaint

By Order dated March 9, 1999 (Appendix B), the

District Court denied the motion to amend the complaint.

The Distnct Court found to be legally insufficient the

allegations that the City violated SIP § § 4.0(2) and 4.4.

The District Court stated that § 4.0(2) simply continued the

commitments outlined in the 1984 SIP and does not contain

its own specific strategy or commitment on which the

plaintiffs may sue. Furthermore, the allegations concerning

omissions in the FEIS were essentially the same allegations

about allegedly omitted hot spots, which allegations were

held to be insufficient in the original complaint. With

respect to §4.4 of the SIP, as explained in the earlier

decision, no duty to mitigate an exceedance arose since the

environmental review process had not identified any

exceedance that would be caused by the development of the

Coliseum site. Any inadequacies in the environmental

review process were not the proper subject of a citizen suit

under the CAA.

The District Court also rejected plaintiffs’

contentions that a provision of § 4.4 of the 1992 SIP

required additional analysis of the proposed project’s effect

on CO levels. That provision states:

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.

The District Court ruled that this provision was not

in effect and would become effective in the future only if

New York State requested redesignation of New York City

from a nonattainment area to one which had achieved

attainment (Appendix B, p. 14a).

As the proposed amended complaint failed to state a

claim on which relief may be granted, the motion to amend

the complaint was denied and the action dismissed, as

effected by a Judgment, filed March 12, 1999.

DECISION OF THE

UNITED STATES COURT

OF APPEALS FOR THE

SECOND CIRCUIT

In a Summary Order, dated and filed December 22,

1999 (Appendix A), the United States Court of Appeals for

the Second Circuit affirmed the judgment of the District

Court.

Reviewing the proposed amended complaint as if it

had been filed and then subjected to review, Wilder v.

Thomas, supra, 854 F.2d 613, and reviewing the dismissal

of the complaint de novo, Sykes v. James, 13 F.3d 515,

518-519 (2d Cir. 1993), the complaint failed to state a

claim upon which relief may be granted (Appendix A, p.

6a). In addition to adopting the reasons of the District

Court as to why the proposed amended complaint was

deficient, the Circuit also rejected plaintiffs’ argument that

§ 4.4 of the SIP required a review for potential CO

exceedances from a project beyond that in the EIS for the

project, and plaintiffs’ contention that the potential for an

increase in CO levels rather than for a potential exceedance

of the CO NAAQS level, required mitigation measures.

The Circuit stated, Appendix A (8a):

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.

In August 1999, after briefing of the case, but

before oral argument before the Second Circuit, the State of

New York Department of Environmental Conservation

(DEC) submitted to EPA, pursuant to 42 U.S.C. § 7407 (3)

(D), a SIP plan revision proposing to redesignate the New

York Metropolitan Area as an area which is in attainment

of the CO NAAQS, and, as required by 42 U.S.C. § 7505

(a) in connection with a redesignation request, a

Maintenance Plan to maintain the level of compliance upon

which the redesignation request was based. These

materials were provided to the Second Circuit prior to oral

argument. In footnote 4 of the Circuit’s opinion (Appendix

A, p. 6a), that Court stated that with respect to the portion

-10-

of plaintiffs’ claim under 4.4 of the SIP which is premature,

the Court expressed no view as to whether that claim may

be brought at some later date.

REASONS FOR DENYING THE WRIT

The Second Circuit correctly determined that the

proposed amended complaint failed to state a CAA claim

upon which relief may be granted. As that Court stated in

Wilder _v. Thomas, supra, 854 F.2d at 613: “In order to

avoid either overburdening the courts or unduly interfering

with implementation of the act, however, congress

carefully circumscribed the scope of the provision by

authorizing citizens to bring suit only for violations of

specific provisions of the act or specific provisions of an

applicable implementation plan. ... By the specificity

requirements congress sought to establish ‘an objective

evidentiary standard [that] would have to be met by the

citizen who brings an action under [§ 7604]’ and therefore

eliminate the need for ‘reanalysis of technological or other

considerations at the enforcement stage’. See Citizens

Ass’n of Georgetown the Committee of 100 on the Fed

City _v. Washington, 535 F.2d 1318, 1322 (D.C. Cir.

1976).” As stated in Coalition Against Columbus Center

v. City of New York, supra, 967 F.2d at 769: “The citizen

suit provision of the Clear Air Act creates a limited private

right of action to enforce the Act’s provisions. . . To state a

claim under the citizen suit provision a plaintiff must allege

a violation of ‘a specific strategy or commitment in the SIP

and describe, with some particularity, the respects in which

compliance with the provision is deficient.’ Council of

Commuter Organizations v. [MTA], 683 F.2d [663] at 670

[(2d Cir. 1982)]; see Wilder II, 854 F.2d at 610; Action for

Rational Transit v. West Side Highway Project, 699 F.2d

£4.

614, 616 (2d Cir 1983).” Accord: Conservation Law

Foundation, Inc. v. Busey, 79 F.3d 1250, 1258 (ist Cir.

1996).

A violation of the National Ambient Air Quality

Standard (NAAQS) is not addressable by a citizen suit,

because a NAAQS standard itself is not an emission

standard or limitation under 42 U.S.C.§ 7604(a)(1) and

(f)(3). Coalition Against Columbus Center v. City of New

York, supra, 967 F.2d at 769; Conservation Law

Foundation v. Busey, supra, 79 F.3d at 1258; Wilder v.

Thomas, 854 F.2d at 613-616; League to Save Lake Tahoe,

Inc. v. Trounday, 598 F.2d 1164, 1173 (9th Cir. 1979) cert.

den. 444 U.S. 943 (1979) (a claim that a project was

erroneously approved although it could cause a violation of

ambient air quality standards did not constitute a SIP

violation addressable by citizen suit under the CAA. Such

a claim blurred the distinction between the NAAQS and an

emission standard or limitation and would improperly

sanction federal jurisdiction based solely on a prospective

violation of the NAAQS, for which the CAA provided no

basis. Thus in Wilder v. Thomas, supra, 854 F.2d at 614,

the court held insufficient a CAA citizen suit based on an

alleged failure to eliminate CO hot spots. Such a claim

eliminated the distinction between the NAAQS, which

could not be addressed by a citizen suit, and measures that

are designed to attain the NAAQS, which, if contained in a

specific provision of a SIP, are the permissible subject of a

citizen suit. This interpretation adhered to the statutory

language of the CAA citizen suit provision while

effectuating both the congressional purpose of fostering

enforcement and the equally important purpose of

«42.

providing specific objective standards for citizen suits.

Wilder v. Thomas, supra, 854 F.2d at 616.

While in Wilder and Coalition Against Columbus

Center, supra, 967 F.2d 764, the EIS for the projects at

issue revealed “a violation or exacerbation of the CO

standard”, activating the City’s commitment to assure that

mitigation measures would be implemented by the project

sponsor or the City, in the instant case the project EIS did

not indicate any exceedance or potential exceedance of the

CO standard. The EIS indicated a significant air quality

impact only in that under one proposal for developing the

site, the 8-hour CO concentration would increase by | ppm.

at two receptor locations, which was a de minimis increase

under City standards but would exceed New York State de

minimis criteria. This impact would be mitigated by traffic

control measures. Since the EIS did not indicate any

“violation or exacerbation of a CO standard” (§ 4.4, 1992

SIP, incorporating 3.6(A), 1984 SIP) or any potential

exceedance resulting from the new project, by the express

terms of the SIP, no mitigation was necessary. The SIP did

not activate any requirement based on the EIS for this

project. Petitioners’ complaint concerning air quality was

precipitated solely by the proposal to redevelop the

Coliseum site. Under the SIP, the mechanism for

evaluating the potential for CO exceedance caused by an

indirect source project is the EIS. As stated by the court in

Atlantic Terminal Urban Renewal Area Coalition v. New

York City Department of Environmental Protection, 740

F.Supp. 989, 990, (S.D.N.Y. 1990), the SIP provisions

committing the City to mitigation measures if an EIS

identifies a violation or exacerbation of the CO standard

“has a simple conditional construction: if X occurs, then the

City commits to do Y.” The condition that triggers the

City’s commitments is the identification of a violation or

exacerbation of the NAAQS. Since the EIS in this case did

not indicate a violation or exacerbation of the CO standard

or an exceedance or potential exceedance thereof, X has not

occurred, and there is no obligation to do Y (adopt

mitigation measures).

The instant ruling of the Circuit was consistent with

the pnor holding of that Court in Wilder. In essence,

petitioners challenged the sufficiency of an EIS and

attributed to the City a nonexistent obligation under the SIP

to make an “independent review” of the air quality impacts

of a project. in Wilder v. Thomas, supra, both the District

Court and the Second Circuit rejected the claim that the

City or State environmental agencies had a duty to conduct

a “SIP review” of the project at issue. There was no such

requirement in the SIP. Id. 659 F.Supp. at 1506. What the

SIP required was mitigation measures if an EIS indicated a

violation or exacerbation of the CO standard. The Second

Circuit stated: “Finally, plaintiffs’ sixth claim, which

alleges in essence that the DEC and DEP should have

reviewed the project EIS prior to approval by the UDC,

must also fail. First, the SIP does not contain a requirement

that DEC or DEP make an ‘SIP’ review of a project before

the lead agency, in this case UDC, approves it”. Id. 854

F.2d at 621.

The SIP relies on the EIS process to disclose

violations, exacerbations and potential exceedances. Once

approved by EPA, the SIP constitutes Federal law, and the

courts cannot rewrite it to impose additional requirements,

see Delaware Valley Citizens Council for Clean Air v.

Davis, 932 F.2d 256, 266 (3rd Cir. 1991), or enforce

oe not contained therein, Plan for Arcadia, Inc. v.

Anita Associates, 501 F.2d 390, 392 (9th Cir. 1974) cert.

den. 419 U.S. 1034 (1974), which would result from

adoption of plaintiffs’ erroneous interpretation of the SIP as

requiring independent government review of an EIS with

respect to findings therein as to air quality impacts.

Plaintiffs also failed to provide any reason to the

Second Circuit as to why New York State’s filing with the

EPA of a request to redesignate the New York

Metropolitan Area as an attainment area, with a

maintenance plan including a procedure to identify New

York City areas at risk of exceedance of the CO standard,

provided a basis for a claim under the CAA. The filing of

an attainment demonstration, including procedure to

identify New York City areas at risk of exceedance of the

CO standard, constituted compliance with that provision in

§ 4.4 of the SIP requiring that such a procedure be part of

the CO Maintenance Plan submitted as part of the

attainment demonstration and redesignation request. The

EPA has not approved the attainment demonstration and

redesignated New York City as an area where compliance

with the CO standard has been attained, nor has the EPA

approved the State Maintenance Plan. The CAA

specifically states that a request for redesignation must be

approved by the EPA to be effective, 42 U. S.C. 7407 ((F)

(4), and can be approved only if the requesi meets the

standards set forth in 42 U.S.C. § 7407(E). The mere

submission thereof does not affect the enforceability of the

applicable implementation plan. 42 U.S. C. § 7407 (3) (D).

The Maintenance Plan submitted with a redesignation

request is not in effect until the redesignation and such a

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SIP revision are approved by the EPA. 42 U.S.C § 7505a

(c). It is well established that until EPA approves the

Maintenance Plan it is not in effect. United States v.

General Motors Corp., 876 F.2d 1076 (1st Cir. 1989), affd

496 U.S. 530 (1990); State of Ohio v. Ruckelshaus, 776

_ F.2d 1333 (6th Cir. 1985) cert. den. 476 U.S. 1169 (1986).

The CAA and case law make clear that the adequacy of the

redesignation request and maintenance plan are matters to

be determined in the first instance by the EPA and not by

the courts. Accordingly, the Second Circuit correctly held

that any claim based on the proposed maintenance plan,

and the procedure therein for identifying City areas at risk

of an exceedance of the CO standard, is premature.

A facial review of the documents provided to the

Second Circuit, (no part of which being provided as an

Appendix to this Court) also shows that these provide no

basis whatsoever for any claim that the proposed project

should be enjoined as in violation of the CAA. Petitioners

provided no explanation to the Second Circuit, and offer

none to this Court, as to how this proposed Maintenance

Plan provides any basis for a claim that the project is not in

compliance with the CAA, notwithstanding the requirement

that a legally sufficient claim under the limited citizen

private right of action provisions of the CAA must allege a

violation of a specific strategy or commitment in a SIP and

describe with some particularity the respects in which

compliance with the provision is deficient. Coalition

Agai olumb ter v. New York, supra, 967

F.2d at 969; Council of Commuter Organizations v. MTA,

supra, 683 F.2d at 670; Wilder v. Thomas, supra, 854 F.2d

at 610; Action for Rational Transit v. West Side Highway

Project, supra, 699 F.2d at 616; Conservation Law

Foundation v. Busey, supra, 79 F.3d at 1258.

The document in question recites air quality

monitoring results at locations in New York City where in

the past CO concentrations have been highest, indicates no

current exceedance of the CO standard, and includes

projections based on modeling, predicting that despite a

projected increase in vehicular travel, improvements in

gasoline and replacement of older polluting vehicles with

newer cleaner ones will result in maintenance of the CO

standard. The plan provides for continued monitoring and

modeling so that contingency measures can be activated in

the event measurements or modeling indicate or predict

currently unexpected increases in CO emissions. The use

of EIS documents to identify potential for CO exceedances

arising from specific projects is continued (p. 20,

Maintenance Plan).

The procedure to identify New York City areas at

risk of exceedance of the CO standard identifies one area in

downtown Brooklyn and one in Long Island City, where in

prior years there were CO exceedances, as still being at risk

for CO exceedance. The procedure relies on monitoring of

vehicle miles traveled (VMT), which is done on a county-

wide basis, as a predictor, as well as on other traffic studies,

and on review of plans for development. The City will

identify areas where there is expected to be significant new

development or redevelopment in the next three to five

years, and if the total construction in such an area exceeds

recent construction by at least 20%, that area also will be

considered at risk for CO exceedance. This development

review process will be repeated every three years. If a

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commercial project containing over 300,000 square feet is

planned close to an area previously identified as at risk of

exceedance, the area will be extended to include the

planned development. The information concerning such

development will be reviewed on a yearly basis.

This monitoring and modeling program provides no

basis for any claim that the sale or development of the

Coliseum site violates an emission standard or limitation.

Indeed, this specific project’s prospective effect on CO

levels was individually reviewed in a site specific EIS, and

no CO exceedance was projected. In a State court suit in

which these same petitioners challenged the adequacy of

the EIS, particularly with respect to the evaluation of the

project upon traffic and consequent CO levels, the New

York State courts held that the EIS complied with SEQRA.

Committee For Environmentally Sound Development _v.

City of New York, supra, 700 NYS2d 694, lv. den. _NY2d_

(April 6, 2000). Such state judicial review is an appropriate

means for determining the sufficiency of an EIS evaluation

of the potential for CO exceedance resulting from the

project. Wilder v. Thomas, supra, 854 F.2d at 616-619.

This site specific review, under assumptions which did not

contemplate City compliance with the CO NAAQS, was

more stringent than the measures in the proposed

maintenance plan, which is not in effect unless and until

approved by EPA, which assume that the City is in

compliance with the CO standard, and which seek to

maintain compliance with that standard. Furthermore, even

under the proposed new Maintenance Plan, a site specific

EIS will continue to be relied upon to determine whether a

specific project presents a risk of a CO exceedance

(Maintenance Plan, p. 20). The provisions in the proposed

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Maintenance Plan to designate areas of New York City for

monitoring and modeling attention have no bearing on the

issue of whether this specific Coliseum project proposal

presents any potential for a CO exceedance, (and the site

specific EIS found no such potential). This proposed

procedure to identify areas of the City for monitoring and

modeling attention provides no basis to enjoin this project,

even if these provisions were presently in effect. There is

nothing either in the proposed Maintenance Plan or the

currently applicable SIP which provides a basis to enjoin

construction of the building simply because the building

may attract increased vehicular traffic. As noted by the

District Court, the CAA specifically provides (42 U.S.C. §

7602 (z)) that a building is not a stationary source of

pollution simply because it may attract vehicular traffic.

Village of OQconomoc Lake v. Dayton Hudson Corp., supra,

24 F.3d at 963. Under § 4.4 of the SIP, if the EIS for a

proposed project indicates the potential for exceedance of

the CO standard either the project sponsor or the City must

take steps to mitigate the problem, with the sponsor

responsible for mitigating only those conditions caused by

the project, not those traffic problems merely identified in

the project EIS. Coalition Against Columbus Center,

supra, 967 F.2d at 774-775. At most, any required

discretionary government approvals for a project could be

denied if an EIS indicated the possibility that traffic

attracted by the project could cause CO exceed inces for

which mitigation could be problematic. The SIP cannot be

rewritten to provide for the outright prohibition of

construction of a building that may attract increased traffic

and thus indirectly increase CO levels. See Delaware

iti cil for Clean Air v. Davis, supra, 932 F.2d at

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266; Plan for Acadia , Inc. v. Anita Associates, supra, 501

F.2d at 392.

Finally, it should be noted that even if petitioners

were correct in their claim that the filing of the attainment

demonstration, including the proposed maintenance plan

with the New York City procedure, activates presently

applicable obligations which constitute a basis for a claim

under the citizens’ suit provision of the CAA, this matter

would not warrant review by this Court under the standards

of Rule 10 of this Court. Petitioners’ claims do not involve

any important question of federal law or any possible

conflict with any decision of this Court. Although

petitioners claim that this matter raises questions

concerning the proper application of Rule 12 (b) (6)

Fed.R.Civ.P., it is obvious that the meaning and scope of

the SIP and related proposals are questions of law for the

court, properly addressed on a Rule 12(b) (6) motion.

California Public Interest Research Group v. Shell Oil Co,

840 F.Supp. 712, 718, n. 8, (N.D. Cal. 1993), citing

Coalition against Columbus Center v. City of New York,

supra, 967 F.2d at 771. Petitioners at most allege a

misreading of a SIP and of a related procedure applicable

only to New York City, thus there is no possibility that the

Second Circuit’s construction thereof could result in a

ruling in conflict with the position of another Circuit. Even

if petitioners’ allegations were correct, the nature of the

claim of error that they assert does not warrant review by

this Court. See Ross v. Moffitt, 417 U.S. 600, 616-617

(1974).

For these reasons, this Court is respectfully urged to

deny the petition for a writ of certiorari.

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CONCLUSION

THE PETITION FOR A

WRIT OF CERTIORARI

SHOULD BE DENIED.

Dated: June 9, 2000

New York, New York

Respectfully Submitted,

MICHAEL D. HESS

Corporation Counsel of the

City of New York

Attorney for City Respondents

LEONARD J. KOERNER*

FRANCIS F. CAPUTO,

GEORGE GUTWIRTH,

of Counsel

*Counsel of Record

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