ELR Citation: ELR 20677
No(s). 73 C 3027 (N.D. Ill. Mar 15, 1974)

The court dismisses a suit to enjoin further construction on a highway expansion project and an adjacent shopping center complex for failure to state a claim under either the Clean Air Act or NEPA for which relief can be granted. The court strictly construes the Clean Air Act's requirement that notice be given 60 days before filing a citizens suit under §304, but goes on to consider as federal questions under 28 U.S.C. §1331 plaintiffs' claims that EPA acted illegally in failing to promulgate regulations for Illinois which would prevent significant deterioration of air quality and violations of air quality standards by indirect sources. Neither contention is found compelling, however, because the statutory schedule for EPA actions in thest two areas has been replaced by a timetable mandated by the D.C. Circuit in NRDC v. EPA, 3 ELR 20155, and the agency was in compliance with this timetable when this suit was filed. The principle of comity also requires the court to defer to the circuit court's exercise of jurisdiction in NRDC v. EPA and its ongoing supervision of EPA's efforts to develop indirect source regulations. As to the NEPA claim, the court rules that the highway project is not a federal action since no federal funds have been used, approved, or applied for, and the project is therefore not subject to the requirements of the statute. In a supplemental opinion, the court denies plaintiffs' motion for an injunction pending appeal of the dismissal after finding that there is little likelihood of success on the merits, that no irreparable injury has been demonstrated, and that the public interest does not demand issuance of the injunction.

Counsel for Plaintiffs
Joseph V. Karaganis
Sanford R. Gail
Martin, Karaganis & Gail
33 N. La Salle Street
Chicago, IL 60602

Thomas H. Compere
Berle L. Schwartz Asst. Corporation Counsel
Highland Park, IL 60035

Counsel for Federal Defendants
James R. Thompson U.S. Attorney
Floyd Babbitt
David R. Sturges Asst. U.S. Attorneys
U.S. Courthouse
219 S. Dearborn Street
Chicago, IL 60604

Counsel for Illinois Highway Department
Bernard Carey State's Attorney
Frederic B. Weinstein
Melvyn A. Rieff Asst. State's Attorneys
Civic Center
50 W. Washington Street
Chicago, IL 60602

Counsel for Defendant Lord & Taylor
John C. Christie, Jr.
John P. Scotellaro
Bell, Boyd, Lloyd, Haddad & Burns
135 South La Salle Street
Chicago, IL 60603

Counsel for Defendant Village of Northbrook
Frederic O. Floberg
Ross, Hardies, O'Keefe, Babcock & Parsons
330 North Wabash Avenue, 31st Floor
Chicago, IL 60611

Counsel for Defendant Village of Deerfield
Richard V. Houpt
Sheldon Davidson
Pedersen & Houpt
135 La Salle Street
Chicago, IL 60603

Counsel for Defendants Homart Development Co., Broad-way Properties, and Sears, Roebuck Co.
Burton Y. Weitzenfeld
Stanley M. Lipnick
John L. Ropiequet
Arnstein, Gluck, Weitzenfeld & Minow
120 South La Salle Street
Chicago, IL 60603