ELR Citation: ELR 21154
No(s). s. 91-7746 et al (2d Cir. Jun 22, 1992)

The court holds that New York City has not failed to fulfill its carbon monoxide (CO) commitments under the Clean Air Act to mitigate violations or exacerbations of New York's state implementation plan (SIP), even though a proposed construction project does not identify measures to mitigate an anticipated violation of the ambient CO standard identified in the environmental impact statement (EIS) for the proposed project. The proposed construction would replace the existing buildings and underground parking garage currently occupied by the New York City Coliseum and an adjacent 26-story office building. After the final EIS required under New York's SIP predicted that the project would marginally exacerbate an already existing violation of the national ambient air quality standard (NAAQS) for CO at the East 59th Street "hot spot," various citizen groups, individual neighbors, and local businesses brought a citizensuit under Clean Air Act §304 to require the defendants to implement mitigation measures.

The court first holds that the commitment in New York SIP §3.6(A) to implement mitigating measures for CO violations is sufficiently specific to constitute a "condition or requirement under an applicable implementation plan," which is a basis for a Clean Air Act citizen suit. Subsection 3.6(A) does not merely restate the NAAQS, it further commits the city to take affirmative, although unspecified, steps to achieve the CO NAAQS. Moreover, the commitment in §3.6(A) provides "an emission standard or limitation" within the meaning of the citizen suit provision because it states a condition or requirement under an applicable implementation plan relating to transportation control measures. The Clean Air Act's citizen suit provision supports an action to enforce New York SIP §3.6(A).

The court next holds that the Clean Air Act amendments of 1990 extend the city's deadline for attaining the CO NAAQS to 1995, and possibly 2000, and thus, the city has not missed the deadline for assuring that mitigating measures will be implemented. Although both New York State and New York City have a continuing obligation to meet tthe specific requirements of the current SIP until the U.S. Environmental Protection Agency approves a revised version pursuant to the 1990 amendments, Congress clearly intended to extend the deadline for compliance with the NAAQS. Although the extension did not automatically effect a postponement of the deadlines for specific tasks that a state obligated itself to perform, the commitment in New York SIP §3.6(A) to take mitigating steps to eliminate hot spots is more general and less susceptible to enforcement by a citizen suit. Thus, the court holds that faithful effectuation of Congress' intent requires that the citizen suit remains available to enforce §3.6(A)'s somewhat general obligation to assure that mitigating measures are taken, but only as to the extended date. Moreover, the court holds that the commitment to implement mitigating measures, but not the attainment date, constitutes a "control requirement" and remains a continuing obligation of New York State.

Finally, the court holds that although the city's progress has not been as rapid as possible, the steps the city has taken to plan and prepare for implementing mitigation measures are sufficient to defeat a claim of current noncompliance with §3.6(A). While the city has not implemented any areawide mitigating measures, it would be premature to implement a strategy without an understanding of its systemwide effect.

[The district court opinion in this litigation is published at 22 ELR 20734.]

Counsel for Plaintiffs/Appellees/Cross-Appellants
John T. VanDer Tuin
Stults, Balber, Horton & Slotnik
1370 Avenue of the Americas, New York NY 10019
(212) 246-2400

Counsel for Municipal Defendants/Appellants/Cross-Appellees
Linda H. Young
Corporation Counsel
100 Church St., Rm. 4, New York NY 10007
(212) 788-1043

Counsel for Defendants/Appellants/Cross-Appellees
Robert P. Lobue
Patterson, Belknap, Webb & Tyler
30 Rockefeller Plaza, New York NY 10112
(212) 956-3153

Before Kearse and Cardamone, JJ.