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

Supreme Court, U.S.

FILED

oY, ee

No. 99-1814

CLERK

IN THE ase

Supreme Court of the United States

COMMITTEE FOR ENVIRONMENTALLY

SOUND DEVELOPMENT, INC., et al,

Petitioners,

v.

THE CITY OF NEW YORK, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UntTEeD STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENTS

THE METROPOLITAN TRANSPORTATION

AUTHORITY AND THE TRIBOROUGH

BRIDGE AND TUNNEL AUTHORITY

HERBERT TEITELBAUM

Counsel of Record

JUDITH M. GALLENT

IAN A. SHAVITZ

ROBINSON SILVERMAN PEARCE

ARONSOHN & BERMAN LLP

Attorneys for Respondents

The Metropolitan Transportation

Authority and The Triborough Bridge

And Tunnel Authority

1290 Avenue of the Americas

New York, New York 10104

(212) 541-2000

160258 @ Counsel Press LLC

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

i

PARTIES TO THE PROCEEDING

The Metropolitan Transportation Authority (“MTA”),

incorrectly identified in this action as The Metropolitan

Transportation Agency, is a public authority organized

pursuant to the Public Authorities Law of the State of

New York. N.Y. Pub. Auth. Law § 1260 et seg. (McKinney

1997). The Triborough Bridge and Tunnel Authority

(“TBTA”), an affiliate of the MTA, is organized pursuant to

Public Authorities Law § 550. N.Y. Pub. Auth. Law

§ 550 et seq. (McKinney 1997). As public authorities, MTA

and TBTA do not have parent corporations and do not

~ issue stock.

TABLE OF CONTENTS

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Table of Canad AmID oa oo hess

Statament OF QSCMS oo iicisistcisr resistin

A. Thee Case Rae 6... csicsec wee

B. The New York State SIP ................

Reasons for Denying the Petition...............

I. The Court Should Deny The Petition Because

The Proposed Amended Complaint Fails To

State A Claim On Which Relief May Be

SC Pr rte rr SRR DISS Bes

II. The Court Should Deny The Petition Because

The Petition Does Not Raise Any Issue That

Merits This Court’s Review .............

CNR oon 5A hos Sawcn kab eee

Page

ili

TABLE OF CITED AUTHORITIES

Page

Cases:

Hormel v. Helvering, 312 U.S. 552 GO) 652. 6

Singleton vy. Wulff, 428 U.S. 106 RPA ck. oes 6

Watt v. Alaska, 451 U.S. 259(1981) ............ 8

Statutes:

iv

Cited Authorities

New York City Uniform Land Use Review

Procedure, New York City Charter § 197-c

New York State’s Environmental Quality Review

Ah, Te NE eek i heehee eee

New York State’s Environmental Quality Review

Regt, TE. Se Si as oR AAS ce

N.Y. Pub. Auth. Law § 550 et seg. (McKinney 1997)

WOT) i dgentina) Oa ree

Rules:

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

United States Supreme Court Rule 10 ...........

United States Supreme Court Rule 10(c) ........

Other Authorities:

SLL FR. § SZ) eek ivcacscds digas eins

ROCF RS Sh. 1GT I) oaks ho ee FE he ee

Gl FOR. Te. BO kee ches es ie bee ae ieee ns

Page

1

STATEMENT OF THE CASE

Respondents MTA and TBTA (together, the “Authority

Respondents”) submit this brief in Opposition to the Petition

for A Writ of Certiorari (the “Petition”). Petitioners seek to

overturn the judgment of the United States Court of Appeals

for the Second Circuit affirming the United States District

Court for the Southern District of New York’s decision

denying petitioners’ motion for leave to file a proposed

amended complaint in this action (the “Decision”). The

Proposed amended complaint, the fourth federal complaint

Offered by petitioners’ thus far in this controversy regarding

the sale of the New York Coliseum Site (“Site” or

“Coliseum”)', alleges that respondents violated the Clean

Air Act (“CAA”), 42 U.S.C. § 7401 et seg., and the New

York City Uniform Land Use Review Procedure (“ULURP” ;

New York City Charter § 197-c.

A. The Clean Air Act

The Clean Air Act establishes a well balanced system

of regulation in which the federal government, the states,

individual citizens and the courts each have distinct, Clearly

defined roles. First, the United States Environmental

1. On November 12, 1998, 14 months after commencing their

action in the District Court, petitioners filed a corapanion proceeding

in New York State Supreme Court, also seekiag to enjoin the sale

of the Coliseum on, among other bases, New York State’s

Environmental Quality Review Act (“SEOKA”), ECL § 8-0101. That

proceeding was dismissed by order dated July 20, 1999, and the

dismissal was affirmed by the New York State Supreme Court,

Appellate Division, First Department on January 11, 2000. By order

dated April 6, 2000, the New York Court of Appeals denied

petitioners’ request for leave to appeal.

2

Protection Agency (“EPA”) adopts “national ambient air

quality standards” (“NAAQS”) to be met in order to keep

air quality at healthful levels. See 42 U.S.C. § 7409(b). Next,

the states must develop the strategies to achieve and maintain

the NAAQS. See 42 U.S.C. § 7410. These state-developed

strategies, which include both regulatory programs and

commitments for state and local action, are incorporated into

State Implementation Plans (“SIP”). Once developed by the

states, SIPs are submitted for EPA’s approval. SIP

commitments become federally enforceable under the CAA

only after. EPA’s approval is granted. See 42 U.S.C.

§ 7604(a)(1) and (£)(4).

As part of its CAA responsibilities, EPA designates

geographic areas that have not met the NAAQS for a

particular pollutant as “nonattainment” for that pollutant.

Once a particular area meets the NAAQS for a particular

pollutant, a state may request EPA to redesignate that area

as in “attainment.” See 42 U.S.C. § 7407(d)(3)(D). Before

EPA may approve the redesignation request, EPA must

- approve a maintenance plan, simultaneously submitted by

the state with its redesignation request, that assures the area

will remain in attainment. See 42 U.S.C. § 7407(d)(3)(E)(iv).

Section 304(a)(1) of the CAA, 42 U.S.C. § 7604(a)(1),

authorizes citizens to bring suit only for alleged violations

of “an emission standard or limitation” that is in effect

under the CAA or under an approved SIP. See 42 U.S.C.

§§ 7604(a)(1) and (f). Significant for present purposes, an

“emission standard or limitation” contained in a SIP becomes

effective only after its approval by the Administrator of EPA.

See 42 U.S.C. § 7604(f)(4); see also 40 C.F.R. § 52.02(b).

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3

B. The New York State SIP

Currently, New York City is designated as

“nonattainment” for carbon monoxide (“CO”). In an effort

to achieve the CO NAAQS, New York State submitted a

SIP to EPA in 1984 that was approved in 1985 (the “1984

SIP”). See 40 C.F.R. § 52.1673(a). In 1992, the New York

SIP was amended in various respects and was approved by

EPA on July 25, 1996. See 61 Fed. Reg. 38594. The 1992

SIP, section 4.4, provides in part:

The State and City commit to develop a broader

alternative procedure to identify potential areas

at risk of exceedance of the CO standard... . 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 August 1999, the New York State Department of

Environmental Conservation (“DEC”) submitted to EPA a

Proposed Carbon Monoxide Redesignation Request and

Maintenance Plan for the New York Metropolitan Area

(“Proposed Redesignation Request”). In accordance with the

1992 SIP, the Maintenance Plan included a new procedure

for identifying potential areas at risk of exceeding the CO

standard. To date, the EPA has not acted on the Proposed

Redesignation Request or CO Maintenance Plan. Thus, the

CO Maintenance Plan is not as yet effective, and will not

become part of the New York SIP until it is approved by

EPA. See 42 U.S.C. § 7505a(c) and 42 U.S.C. §§ 7407

(d)(3)(D) and (E).

4-

REASONS FOR DENYING THE PETITION

I.

THE COURT SHOULD DENY THE PETITION

BECAUSE THE PROPOSED AMENDED COMPLAINT

FAILS TO STATE A CLAIM ON WHICH RELIEF

MAY BE GRANTED

Petitioners’ request-that the Court grant the Petition is

predicated on its assertion that the Court of Appeals, in

affirming the District Court’s denial of the motion for leave

to file the proposed amended complaint, ignored an

“intervening change in the underlying facts and law” that

supplied a basis for the proposed fourth claim for relief.

Petition at 12. As described below, petitioners’ assertion,

correctly rejected by the Court of Appeals, is based on a

misreading of the 1992 SIP and a misunderstanding of the

process pursuant to which SIP submissions become

enforceable under the CAA’s citizen suit provisions.

The proposed amended complaint’s fourth claim alleged

that respondents violated SIP section 4.4 by failing to

“develop a broader alternative procedure to identify potential

areas at risk of exceedance of the CO Standard.” Joint

Appendix (“JA”) at A-162. As the Court of Appeals correctly

explained, however, section 4.4. requires that the City and

State develop and submit a “broader procedure” for

identifying areas at risk of CO exceedance at the time the

state submits its redesignation request to EPA, an event

which had not yet occurred at the time petitioners moved to

interpose the proposed fourth claim. See Petition at A.6a.

Because the claim was premature, the Court of Appeals held

it was properly dismissed by the District Court.

5

In August 1999, DEC, in accordance with its obligations

under section 4.4, submitted to EPA a Proposed Carbon

Monoxide Redesignation Request and Maintenance Plan for

the New York Metropolitan Area. Petitioners contend here, as

they did at oral argument before the Court of Appeals and in

their subsequent petition for panel rehearing, that the August

1999 submission “ ‘triggered’ the broader procedure for

evaluation of potential hot spots.” Petition at 5; see also Petition

at 6, 11, 12. Hence, petitioners argue that the proposed fourth

claim is ripe for review. Petitioners’ contention is simply wrong.

The 1992 SIP only obligated the State and City to “develop”

the broader procedure. Nowhere does the 1992 SIP state, as

petitioners contend, that the mere filing of the Redesignation

Request triggers the obligation to implement the broader review

procedure for projects such as the redevelopment of the

Coliseum. Nor could it. As petitioners concede, this future

obligation to conduct a broader review does not ripen into an

enforceable “emission standard or limitation” under

sections 7604(a)(1) and (f)(3) until the Redesignation Request,

including the Maintenance Plan, is approved by EPA as part of

the SIP. See Petition at 11; 42 U.S.C. § 7407 (d)(3)(D) and

§ 7604(f)(4); see also 40 C.F.R. § 52.02(b).

New York’s August 1999 submission, however, has not

received the requisite EPA approval.’ Until that happens, the

2. Apart from its other defects, petitioners’ argument is an

improper attempt to alter the proposed fourth claim. Petitioners

alleged in the proposed amended complaint 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.” JA at A-162 (emphasis added). The record

(Cont'd)

6

obligations contained in the Maintenance Plan for the New York

Metropolitan Area are proposals for EPA review, not “standards

or limitations” enforceable under the CAA. Accordingly, the

Court of Appeals correctly determined that presently, the City

and State are under no federal, or, for that matter, state obligation

to implement the proposed broader procedure.’

In sum, Petitioners’ proposed fourth claim has no basis in

the 1992 SIP, and, to the extent it is premised upon a

commitment contained in the 1999 CO Maintenance Plan

submission, the proposed claim remains premature.‘ For these

reasons, the Court of Appeals’ denial of the petition for panel

rehearing was proper in all respects and does not merit this

Court’s review.

(Cont'd)

demonstrates that this claim is meritless because New York City

and New York State have, in fact, developed this alternative

procedure. See Respondents’ Lodging Appendix (“RA”) at 20 and

Appendix D (submitted to the Court of Appeals pursuant to Federal

Rule of Appellate Procedure 28(j)). Petitioners now attempt to

change the proposed fourth claim’s substance by arguing that

respondents have violated the SIP by failing to implement the broader

procedure with respect to the Coliseum redevelopment. This new

claim, nowhere alleged in the proposed amended complaint nor

adjudicated below, is not a proper basis for the Petition. See Singleton

v. Wulff, 428 U.S. 106, 120 (1976) (citing Hormel v. Helvering, 312

U.S. 552, 556 (1941)).

3. However, air quality related impacts of the project were

studied in a full Environmental Impact Statement pursuant to

SEQRA, ECL § 8-0109, as required by section 4.4 of the 1992 SIP.

4. The Court of Appeals expressed “no view on whether

that [premature] claim may be brought at some later date.”

Petition at A.6a.

7

II.

THE COURT SHOULD DENY THE PETITION

BECAUSE THE PETITION DOES NOT RAISE ANY

ISSUE THAT MERITS THIS COURT’S REVIEW

Even if the proposed fourth claim were ripe for review,

which, as explained in Point I, it is not, the petition should

be denied because no arguments are raised that merit this

Court’s review. Supreme Court Rule 10 provides that “Tal

petition for a writ of certiorari will be granted only for

compelling reasons.” Among the factors considered by the

Court in the disposition of such petitions is that a “United

States court of appeals . . . has decided an important federal

question in a way that conflicts with relevant decisions of

this Court.” Supreme Court Rule 10(c). A petition for writ

of certiorari is “rarely granted when the asserted error

consists of ... the misapplication of a properly stated rule

of law.” Applying these standards, it is apparent that the

Petition should be denied.

Petitioners advance three arguments in support of their

request that the Court grant the Petition, each of which is

unavailing. First, they assert that, in dismissing the proposed

fourth claim, the Court of Appeals violated this Court’s

“directive regarding liberal pleading and reluctance to

dismiss complaints.” Petition at 10. Even if true, such a claim

does not merit this Court’s review because it is merely a

disagreement with the Court of Appeals’ application of an

uncontroverted and uncontroversial principle of law to a

particular set of facts. A narrowly circumscribed issue of

this sort, lacking significance beyond this case’s factual

context, does not merit this Court’s review.

8

Second, petitioners allege that although the Court of

Appeals recited correctly that it must review de novo the

District Court’s dismissal of the proposed amended

complaint, it failed to apply that standard in reviewing the

adequacy of the proposed fourth claim. See id. Assuming

arguendo that petitioners are correct, their argument is

nothing more than a claim that the Court of Appeals

misapplied a properly stated rule of law. Under these

circumstances, this Court’s review is unwarranted.

See Supreme Court Rule 10.°

Third, petitioners argue that the Court should grant the

Petition because the Court of Appeals improperly concluded

that section 4.4 of the SIP does not presently provide a valid

basis for a CAA citizen suit. See Petition at 13. Even if true

(which, as demonstrated in Point I, it is not), this argument

involves the interpretation of a single provision of a single

state’s SIP that applies exclusively to development projects

in New York City. As such, it does not present an issue of

wide applicability with significance beyond this case’s

narrow context. This fact-specific issue is of limited import

and does not merit this Court’s review. See Supreme Court

Rule 10; see also Watt v. Alaska, 451 U.S. 259, 276 n.5

(1981) (Stevens, J., concurring) (“our certiorari jurisdiction

is designed to serve purposes broader than the correction of

error”).

5. Moreover, there is no basis in the Court of Appeals’ opinion

for petitioners’ assertion that the Court of Appeals failed to review the

proposed fourth claim de novo. Petitioners point to the Court’s dismissal

of the proposed amended complaint for “ ‘substantially the same reasons

stated in the [district court] opinion . . .’ ” Petition at 12 (quoting A.6a).

However, simply because the Court of Appeals agreed with the District

Court’s reasoning does not mean that the Court of Appeals failed to

assess the adequacy of the petitioners’ claims de novo.

9

CONCLUSION

The Court should deny the Petition because, as the Court

of Appeals correctly determined, the proposed amended

complaint fails to state a claim on which relief may be

granted, and the issues raised in the Petition otherwise do

not merit this Court’s review.

Respectfully submitted, |

HERBERT TEITELBAUM

Counsel of Record

JupITH M. GALLENT

TAN A. SHAVITZ

ROBINSON SILVERMAN PEARCE

ARONSOHN & BERMAN LLP

Attorneys for Authority Respondents

1290 Avenue of the Americas

New York, New York 10104

(212) 541-2000