ELR Citation: ELR 20347
No(s). 82-6197 (2d Cir. Feb 1, 1983)

The court affirms the district court's dismissal, 13 ELR 20519, of certain claims under the Federal Aid Highway Act, the National Environmental Policy Act (NEPA), and the Clean Air Act in a challenge to the Westway highway project in New York. The court affirms the dismissal of the Highway Act and NEPA claims on the basis of the district court's opinion. It rules that claims relating to the 1973 state implementation plan (SIP) are moot because the 1979 SIP replaced the 1973 SIP. The court also rejects claims that defendants' transit plans violated the 1979 SIP. Plaintiffs failed to allege specific violations of the SIP, and instead appear to be seeking revisions to the SIP. However, their arguments were not properly addressed to the district court because only the court of appeals has jurisdiction to review SIPs. Furthermore, plaintiffs are estopped from proceeding in federal court because they failed to challenge in state court the state's finding that the project was in compliance with the SIP. The court rejects the argument that the U.S. Department of Transportation should be prohibited from funding the project because it finds plaintiffs' SIP claims to be without merit. In addition, plaintiffs' claim that EPA failed to issue notices of violation is moot because the 1973 SIP is no longer in force.

[Related decisions are reported at 12 ELR 20342, 20533, 20742 and 13 ELR 20170 and 20326 — Ed.]

Counsel for Appellants
William Hoppen
Jillson, Bedford & Hoppen
250 Broadway, Suite 2104, New York NY 10007-2561
(212) 962-3332

Counsel for Appellees
Jonathan Z. Cannon, Gary H. Baise, Don G. Scroggin
Beveridge & Diamond
1333 New Hampshire Ave. NW, Washington DC 20036
(202) 828-0200

R. Nicholas Gimbel, Peter C. Salerno; John S. Martin Jr., U.S. Attorney
One St. Andrew's Plaza, New York NY 100076
(212) 791-0055

Cathy A. Fleming, Sanford M. Litvak, William A. Davis II
Donovan, Leisure, Newton & Irvine
30 Rockefeller Plaza, New York NY 10112
(212) 307-4100

Before Oakes, Van Graafeiland, and Meskill, JJ.