ELR Citation: ELR 20734
No(s). 90 Civ. 5014 (SWK) (S.D.N.Y. Jul 10, 1991)

The court holds that New York City violated the New York Clean Air Act state implementation plan (SIP) provisions providing commitments to fight carbon monoxide (CO) exceedances in approving the sale of city property for construction of a redevelopment project, but the court refuses to enjoin the project because the 1990 Clean Air Act amendments extended the city's attainment date to 1995 and beyond. The court first holds that the project will not have a legally cognizable impact on the CO emissions at one of the 10 test sites near the project. The court next holds that the city has failed to fulfill the 1984 SIP commitment to mitigate existing CO violations caused by the project and violations not caused by the project that are revealed through the environmental impact statement (EIS) process. The court holds that the existing SIP commitments remain in effect until the U.S. Environmental Protection Agency approves New York's revised SIP. The savings clause in the 1990 amendments and Congress' general policy of accelerating the slow pace of air quality improvements indicate that Congress did not intend to excuse non-complying regions from their Clean Air Act obligations during the SIP revision process. The court holds that the city has failed to fulfill its SIP commitment because the city's CO control study is not reasonably calculated to lead to compliance with the CO standards as soon as possible. The study is two years behind schedule and there is no evidence that the city will meet its November 1992 deadline for submission of the revised SIP and the December 1995 deadline for attainment of the CO standard. However, the court refuses to enjoin the project until measures for effectively achieving SIP compliance are implemented, given that the 1990 Clean Air Act amendments extended the attainment dates to 1995 and beyond. The court instead enjoins the city from further violations of its SIP commitment, as constituted under the 1990 amendments, concerning mitigation of the CO hotspot identified in the project's final EIS. If the city fails to complete its CO study in time to incorporate its remedial measures into the revised SIP on November 15, 1992, the court will enjoin further work on the project and impose a $15 million fine.

The court holds that the plaintiffs failed to state a claim under the Clean Air Act for the allegation that the defendants have failed to obtain two permits regulating off-street parking in violation of SIP commitments. In light of the New York Department of Environmental Conservation's (DEC's) ultimate approval of the project, defendants' failure to obtain the DEC's express permission is without legal or practical significance. The court holds that the plaintiffs' claim that the defendants failed to obtain a permit for enlargement of the project's parking garage is not properly before the court because the plaintiffs failed to exhaust their state administrative remedies. Even assuming that the court can consider this claim, the court would hold that the proposed changes to the garage do not require a new permit.

The court holds that the plaintiffs' claim that the city's failure to obtain the two garage permits violated the New York City Zoning Resolution fails for the same reasons the Clean Air Act claims failed. The court holds that the plaintiffs lack standing to challenge the New York City Industrial Development Agency's (IDA's) alleged illegal involvement in a "residential" project. The court holds that the IDA's determination to alter the provision in the original request for proposals that the developer would not seek a tax exemption was not arbitrary and capricious. The court holds that the plaintiffs failed to state a claim for their allegation that a former employee of the Metropolitan Transit Authority (MTA) who represented a developer before the MTA violated New York's conflict-of-interest laws.

Counsel for Plaintiffs
John T. Van Der Tuin
Stults Balber Horton & Slotnick
1370 Ave. of the Americas, New York NY 10019
(212) 246-2400

Jerry H. Goldfeder
Pesetsky, Goldfeder & Bookman
325 Broadway, New York NY 10007
(212) 513-1988

Counsel for Defendants
Robert P. LoBue, Howard Goldman, Steven Russo
Patterson, Belknap, Webb & Tyler
30 Rockefeller Plaza, New York NY 10112
(212) 698-2500

Victor A. Kovner, Daniel Turbow, Rosemary Myers
New York City Law Department
100 Church St., New York NY 10007
(212) 788-0808