ELR Citation: ELR 20513
No(s). s. 87 Civ. 0505 (MEL), 4242 (MEL) (S.D.N.Y. Nov 21, 1988)

The court holds that the Environmental Protection Agency (EPA) must set a date by which New York must revise its substantially inadequate state implementation plan (SIP) for carbon monoxide and ozone. The court first holds that EPA has a nondiscretionary duty under §110(c)(1) of the Clean Air Act to set a date for revision of an inadequate SIP. The language of §110(c)(1) is mandatory. Further, if EPA does not set a deadline for a state to revise a SIP, it cannot fulfill its statutory duty to issue regulations should the state fail to do so. Failure to set a date would also frustrate Congress' clear intent to ensure attainment of air quality standards by the statutory deadlines. Requiring EPA to set a date does not interfere with its prosecutorial discretion. The court next holds that EPA failed to set a date for New York to revise its SIP. EPA improperly directed New York to delay completion of its revisions pending EPA's future issuance of a final policy on SIP revisions or Congress' passage of a new Clean Air Act. Finally, the court holds that EPA's delay was not unreasonable enough to violate §706 of the Administrative Procedure Act. The delay was not in bad faith, and was caused partly by the complexity of the issues and the uncertainty regarding congressional action.

[Related opinions are published at 18 ELR 20106, 20148.]

Counsel for Plaintiffs
Donald S. Strait, Eric A. Goldstein
Natural Resources Defense Council
122 E. 42nd St., 45th Fl., New York NY 10168
(212) 949-0049

Counsel for Defendants
Rudolph W. Guiliani, U.S. Attorney
One St. Andrew's Plaza, New York NY 10007
(212) 791-0008