ELR Citation: ELR 21285
No(s). 87-7516 (2d Cir. Aug 10, 1988)

The court holds that plaintiffs' citizen suit under the Clean Air Act (CAA) challenging state and local approval of a proposed commercial development in the Times Square area of New York City fails to state a claim. The court first holds that plaintiffs' claim that the proposed development will create carbon monoxide "hot spots" does not allege a violation of a state implementation plan (SIP). Citizen suits under CAA §304 may only be brought to seek relief from violations of existing SIPs, and may not be used to obtain modification of a SIP. Although the development may hinder New York City's compliance with the national ambient air quality standard (NAAQS) for carbon monoxide, it will not violate a specific attainment strategy of New York's SIP. While the SIP states that all hot spots will be eliminated by the end of 1987, this is merely a restatement of the CAA's requirement of compliance with the carbon monoxide NAAQS. The SIP's statement of commitment to the implementation of measures to address hot spots is not a condition or requirement relating to transportation control measures within the meaning of CAA §304(f)(3) and is thus not an emission standard or limitation subject to citizen suit under §304(a).

The court holds that plaintiffs' challenges to the project's approved mitigation measures are collaterally estopped. An earlier decision by a New York state court held that the state's approval of the mitigation measures complied with the State Environmental Quality Review Act (SEQRA) and was not arbitrary and capricious. The court holds that the issues in the state and federal claims concerning mitigation are identical. Although plaintiffs' challenges in this case are based on the CAA rather than on SEQRA, New York uses SEQRA's environmental impact statement process to evaluate "indirect sources" of pollution such as the proposed development, to assure attainment of the NAAQS. The New York and federal standards for review of agency determinations are essentially the same. Moreover, the state court found that the state had a reasonable basis to conclude that the mitigation measures would enable the project to meet the federal CAA standards. In addition, the language of plaintiffs' pleadings in the state and federal cases are very similar. The court next holds that the adequacy of the mitigation measures under the CAA was a necessary component of the state court's decision, and that plaintiffs had a full and fair opportunity to litigate the mitigation issue in the state court. The court holds that although two of the plaintiffs in the federal action were not parties in the state court proceeding, there is sufficient privity between the new plaintiffs and the other plaintiffs to establish identity of parties. All plaintiffs characterize themselves as persons who work or live in the project area, and the issues raised in the two proceedings do not vary according to individual plaintiffs. Additional defendants in the federal proceeding who were not parties before the state court may invoke collateral estoppel, since mutuality of estoppel is not essential.

The court holds that the state and local authorities did not violate New York's SIP by failing to comply with reporting requirements, and that two agencies did not violate the SIP by failing to review the project before its approval by the lead agency.

[The district court's opinion is published at 17 ELR 20978.]

Counsel for Plaintiffs-Appellants
Jacob Friedlander
LeBoeuf, Lamb, Leiby & MacRae
520 Madison Ave., New York NY 10022
(212) 715-8000

Counsel for Defendants-Appellees
Stephen Kass
Berle, Kass & Case
45 Rockefeller Plaza, New York NY 10111
(212) 765-1800

Peter L. Zimroth
Corporation Counsel for City of New York
100 Church St., New York NY 10007
(212) 566-4515

Robert Abrams, Attorney General; John Proudfit, C. Michael Bryce, Ass't Attorneys General
Two World Trade Center, New York NY 10047
(212) 488-3313

Before Feinberg and Oakes, JJ.