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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 814

## Text

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

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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,
: 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

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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

-18-

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

-19-

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1032%3A2. Public record. Not legal advice.